GENERAL COUNSEL 

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE 

1600 DEFENSE PENTAGON 

WASHINGTON, D.C . 20301-1600 

May 31, 2016 

The changes described in the attachment are hereby promulgated pursuant to Department of 

Defense Directive 2311.0lE, DoD Law of War Program (May 9, 2006), Department of Defense 

Directive 5145.01, General Counsel of the Department of Defense (GC DoD) (Dec. 2, 3013), 

and 10 U.S.C. § 140(b) (2012). 

The Department of Defense Law of War Manual (June 2015, updated May 2016) incorporates 

the changes described in the attachment. The original online version of this Manual (June 2015) 

should no longer be used. 

Robert S. Taylor 

Acting 

Attachment - Description of Changes Promulgated on May 31, 2016 
DEPARTMENT OF DEFENSE LAW OF WAR MANUAL

Description of Changes Promulgated on May 31, 2016

1. Minor changes to the discussion of the principle of proportionality, principally in § 2.4.

a. Revised § 2.4.1.1 to be more precise and to be consistent in style with other parts 

of the manual.

b. Revised the last sentence of the first paragraph of § 2.4.1.2 to match the language 

used in the cross-referenced § 5.12.

c. Revised the title of § 2.4.2 to be more specific in describing its content.

d. Revised the second paragraph of § 2.4.2 to clarify that the principle of 

proportionality understood in its broadest sense is reflected in obligations to take 

feasible precautions, including when conducting attacks.

e. Revised the title of § 5.12 to be more specific to avoid potential confusion with 

the discussion of the broader principle of proportionality. Revised the 

corresponding cross-references to the section title in the footnotes of: 

i. § 1.11.1.2 (footnote 194)

ii. § 2.4.1.2 (footnote 70), § 2.4.2 (footnote 73)

iii. § 3.5.1 (footnote 85)

iv. § 4.8.2 (footnote 198)

v. § 5.3.2 (footnote 18), § 5.5.1 (footnote 65), § 5.5.2 (footnote 67), § 5.7.1.2

(footnote 136), § 5.12.5 (footnote 325), § 5.18.5.1 (footnote 517)

vi. § 6.5.9.3 (footnote 106), § 6.7.1 (footnote 149), § 6.7.4 (footnote 160), § 

6.12.5.2 (footnote 291), § 6.14.2.1 (footnote 366), § 6.14.3 (footnote 371), 

§ 6.18 (footnote 412)

vii. § 13.5.2.1 (footnote 95)

viii. § 14.8.3.3 (footnote 128)

ix. § 16.5.1 (footnote 46), § 16.5.1.1 (footnote 49)

x. § 17.7 (footnote 113)

2. Minor revisions to the discussion of the principle of honor in § 2.6.

a. Added “military” before “forces” or replaced “combatants” with “military forces” 

to clarify that the principle of honor helps distinguish military forces from 

terrorist groups and other unlawful combatants. Made these revisions in:

i. the first line of § 2.6

ii. the title of § 2.6.3

iii. the first sentence of § 2.6.3

iv. the first sentence of § 2.6.3.1

v. the title of § 2.6.3.2, 

vi. the first sentence of § 2.6.3.2

b. Revised the first paragraph of § 2.6.1 to explain that the principle of honor 

remains important as a core value of the U.S. military and helps strengthen 

implementation of the law of war.

c. Revised the second paragraph of § 2.6.1 to help clarify that the principle of honor 

as used in the manual does not refer to a particular code found in history, but 

instead draws from warriors’ codes from a variety of cultures and time periods.

3. Substantial revisions to the discussion of journalists in § 4.24.
a. Added references to DoD and U.S. Government policy recognizing the 

importance of the role of journalists in armed conflict.

b. Reorganized and revised the section to emphasize the protection of journalists as 

civilians and to clarify that a journalist would only be considered a combatant on 

an exceptional basis when that person had acquired such status.

c. Added more sources, including relevant U.N. Security Council Resolutions, DoD 

policies, and examples of relevant DoD or other practice.

d. Added discussion of, and reference to, DoD policies relating to interactions with 

the press to avoid any misimpression that the manual would revise such DoD 

policies.

e. Revised the section to focus on the contexts most relevant to DoD practitioners 

(e.g., added an example from DoD practice of ensuring that media access to 

military operations is consistent with law of war obligations, such as the 

obligation to protect detainees against public curiosity).

f. Revised the cross-reference from § 4.24.2 to § 4.24.1 in:

i. § 5.9.3.2 (footnote 241)

ii. § 19.20.1.4 (footnote 209)

4. Changes for stylistic consistency.

a. Changed the citation to DoD Directive 2311.01E in the Preface to be more 

consistent with citations elsewhere in the manual.

b. Italicized “proportionality” in both instances in the last paragraph of § 2.4.2.

c. Changed “land mines” to “landmines” in § 6.12.13. 

d. Changed “antipersonnel” to “anti-personnel” in §§ 6.12.13 and 6.12.14.

e. Capitalized “is” in the title of § 5.12.3.

5. Typographical and other administrative errors.

a. Added the long-form citation for Rogers, Law on the Battlefield, to the list of 

abbreviations.

b. Changed “Australian Royal Air Force” to “Royal Australian Air Force” in the 

Preface.

c. Formatted footnote numbers 58 and 59 to be superscript in § 2.3.1.1.

d. Changed “in way” to “in a way” in § 2.4.

e. Added “to” after “the Party” in § 4.26.2.2.

f. Deleted “the” from the quote from U.N. General Assembly Resolution 2675 cited 

in § 5.3.3 (footnote 27) and § 5.3.3.1 (footnote 35).

g. Added “Part” to the title of § 5.9.3.2. Revised the corresponding cross-references 

to the section title in the footnotes of: 

i. § 4.23.1 (footnote 465), § 4.24.1 (footnote 476) 

ii. § 5.8.3.2 (footnote 204)

h. Changed “civilians workers” to “civilian workers” in § 5.12.3.2.

i. Changed “the safety of the civilian populations” to “the safety of the civilian 

population” in § 5.14.

j. Deleted “emphasis added” from the citation in footnote 85 in § 6.5.4.5 because 

the text does not contain modifications for emphasis.

6. Punctuation and Spacing.
a. Removed “Widow/Orphan control” from the paragraph formatting of the entire 

document to ensure that footnote text would always be on the same page as the 

footnote reference number in the main text.

b. Moved a comma in the first citation in footnote 25 in § 1.3.2.2 for consistency 

with the other citation forms for this source.

c. Removed an extra carriage return.

i. § 2.3.1.1 (after section title)

ii. § 4.5.2.1 (footnote 102) 

d. Deleted an extra space after punctuation and before the footnote number.

i. § 4.20.4 (footnotes 432, 434)

ii. § 5.3.3.3 (footnote 44)

iii. § 6.5.1 (footnote 44), § 6.20.3.1 (footnote 456)

iv. § 9.22.1 (footnote 495)

v. § 11.18.5.2 (footnotes 324, 325)

vi. § 12.4.2.1 (footnote 42), § 12.8.5 (footnote 140)

vii. § 15.1.5 (footnote 19), § 15.14.1 (footnote 276)

viii. § 19.7.1 (footnote 78)

e. “Hague IV Reg” was corrected to “Hague IV Reg.”.

i. § 5.11 (footnote 279), § 5.14.4 (footnote 353)

ii. § 19.8.2.1 (footnote 99)

f. Corrected footnotes that ended in a semi-colon so that they would end in a period.

i. § 6.6.3.3 (footnote 139)

ii. § 7.12.2.7 (footnote 319)

iii. § 13.10.2.3 (footnote 160)
GEN ERAL COUNSEL. 

GENERAL COUNSEL OF THE DEPARTMEN T OF DEFENSE 

1600 DEFENSE PENTAGON 

WASHINGTON, DC 20301-1600 

December 13, 2016 

The changes described in the attachment are hereby promulgated pursuant to Department of 

Defense Directive 23 11.01 E, DoD Law of War Program (May 9, 2006), Department of Defense 

Directive 5 145.01, General Counsel oft he Department of Defense (GC DoD) (Dec. 2. 20 13), 

and 10 U.S.C. § 140(b) (20 12). 

The Department of Defense Law of War Manual (June 20 15, Updated December 20 16) 

incorporates the changes descri bed in the attachment. Previous versions of this Manual (June 

20 15) and (June 20 15, Updated May 20 16) should no longer be used. 

Attachment 

Description of Changes Promulgated on December 

0 
Page 1 of 9

DEPARTMENT OF DEFENSE LAW OF WAR MANUAL

Description of Changes Promulgated on December 13, 2016

1. Substantial revisions to the discussion of the principle of proportionality and other 

changes to Chapter V.

a. Significant revisions to §§ 5.11 and 5.12 and a new § 5.10 that provides an 

overview and context for applying §§ 5.11 and 5.12.

i. In particular, the new § 5.10:

1. Clarifies how the general principle of proportionality relates to the 

more specific rules prohibiting attacks expected to cause excessive

incidental harm and requiring the taking of feasible precautions.

2. Clarifies the scope of the principle of proportionality by:

a. discussing how the principle of proportionality does not 

create duties intended to reduce the risk of harm to military 

objectives; and

b. adding language clarifying how the principle of 

proportionality applies to military personnel and facilities 

that may not be made the object of attack, such as military 

medical personnel and the military wounded and sick.

3. Discusses how the principle of proportionality is implemented 

through the chain of command. The discussion addresses:

a. the responsibility of commanders in implementing the 

principle of proportionality;

b. the need for competent authority; 

c. the subjective aspects of the decisions and judgments 

required by the principle of proportionality;

d. understanding the authorities of subordinates when 

commanders provide subordinates substantial discretion in 

the tactics of an attack, especially in relation to canceling or 

suspending such an attack; and 

e. the duty not to comply with clearly illegal orders and the 

principle of proportionality.

4. Discusses how the principle of proportionality has been 

implemented through military procedures.

5. Discusses how time constraints affect the implementation of the 

principle of proportionality.

6. Clarifies the relationship between the prohibition on attacks 

expected to cause excessive harm and the obligation to take 

feasible precautions.

ii. Revisions to § 5.11.

1. Revises the title to include precautions in “planning” as well as 

“conducting” attacks.

2. Adds language to the chapeau of § 5.11 to highlight the need to 

consider § 5.11 in light of the information in § 5.10.

3. Adds a bulleted list to the chapeau of § 5.11 to provide an 

overview of the section.
Page 2 of 9

4. Reorders the examples of precautions and includes new discussion 

of three precautions: (1) assessing the risks to civilians, (2) 

canceling or suspending attacks based on new information raising 

concerns of expected civilian casualties, and (3) selecting military 

objectives.

5. In § 5.11.1, adds discussion of the different types of assessments of 

risks to civilians that may be taken, including (1) general 

assessments, (2) pre-strike assessments, and (3) after-action 

assessments and investigations. In the footnotes, cites Executive 

Order 13732, United States Policy on Pre- and Post-Strike 

Measures To Address Civilian Casualties in U.S. Operations 

Involving the Use of Force, and recent DoD statements and 

information, to provide examples of this practice. 

6. In § 5.11.2, revises and supplements the discussion of identifying 

zones in which military objectives are more likely to be present or 

civilians are more likely to be absent. In the footnotes, cites recent 

DoD statements and other historical examples of this practice. 

7. In § 5.11.3, adds recent examples in the footnotes of DoD practice 

in adjusting the timing of an attack.

8. In § 5.11.4, adds discussion of the precaution of deciding to cancel 

or suspend an attack based on new information raising concerns of 

expected civilian casualties or authorizing subordinates to do so, in 

order to reduce the risk of harm to civilians and civilian objects. In 

the footnotes, adds recent examples of DoD practice of cancelling 

or suspending an attack to reduce the risk of harm to civilians.

9. In § 5.11.5, revises the discussion of providing warnings to make it 

clear that warnings to facilitate the protection of the civilian 

population may be given so that civilians and the authorities in 

control of the civilian population can take measures for their own 

protection. Restructures the discussion of the examples of 

providing warnings and, in the footnotes, supplements the 

examples of providing warnings, including examples of more 

recent DoD practice.

10. In § 5.11.6, revises the discussion of “weaponeering” for clarity 

and adds an example of recent DoD practice in a footnote. 

11. In § 5.11.7, adds discussion of the precaution of choosing a 

particular military objective for attack when it may be expected to 

cause the least danger to civilian lives and to civilian objects, when 

a commander may have a choice among several military objectives 

for achieving a particular military advantage; identifies the types of 

circumstances when exercising this choice would be necessary. 

Clarifies that whether Article 57(3) of AP I is consistent with 

customary law would depend upon how AP I parties interpret their 

obligation. 

iii. Revisions to § 5.12.
Page 3 of 9

1. Adds language to the chapeau of § 5.12 to highlight the need to 

consider § 5.12 in light of the information in § 5.10.

2. Adds discussion of prioritizing human life over civilian objects, 

and prioritizing cultural property over other types of civilian 

objects. 

3. Elaborates upon the discussion of concrete and direct military 

advantage to be gained, including discussion of considering the 

advantage from the attack as a whole – in the operational and 

strategic context.

4. Adds discussion of the need to make a holistic, “totality of the 

circumstances,” judgment in determining whether civilian 

casualties are expected to be excessive, including discussions of 

(1) the military concept of economy of force, (2) the relationship 

between the requirement to take feasible precautions and the 

requirement to refrain from conducting attacks when civilian 

casualties are expected to be excessive, (3) civilian workers who 

support military operations in or on military objectives, and (4) 

enemy use of human shields.

b. Revisions to the discussion in § 5.1 about the implementation of law of war 

obligations to harmonize this discussion with the additional discussion in § 5.10 

about the implementation of the principle of proportionality, including the 

responsibility of commanders.

i. Adds language and cross-references in the second paragraph of § 5.1 for 

clarity and precision. 

ii. In § 5.1.2, changes “law of war rules in the conduct of hostilities” to “law 

of war rules for the conduct of hostilities” in the first sentence for 

grammatical reasons. Adds a footnote to this sentence with crossreferences to the Chapter I discussion of rules of engagement and the 

Chapter XVIII discussion of implementation of law of war obligations 

through domestic procedures. 

iii. Adds subsection headings in § 5.1.2.

iv. In § 5.1.2.1, revises the first sentence for clarity and precision. Adds

footnote to this sentence with a reference to Executive Order 13732, 

United States Policy on Pre- and Post-Strike Measures To Address 

Civilian Casualties in U.S. Operations Involving the Use of Force. 

Further in this discussion, adds a footnote referencing a speech by the 

State Department Legal Adviser in April 2016. Clarifies the relationship 

between violations of policy standards and violations of the law of war, 

which is a point that is similarly addressed in § 18.7.2.3.

v. Revises the title of what is now § 5.1.2.2 as well as the first sentence that 

follows to be more specific and to track the language that is used in 

§ 18.3.1.1.

1. Places most of this discussion in § 18.3.1.1 rather than in § 5.1.2.2 

because this discussion is generally applicable to the 

implementation of law of war obligations.
Page 4 of 9

2. Adds a sentence with another example in § 5.1.2.2 for further 

clarity, which draws upon the new discussion in § 5.10.2. Adds a 

footnote to this sentence with a cross-reference to § 5.10.2.

c. Revisions to what is now § 5.2 (previously § 5.3).

i. In the chapeau of § 5.2, adds an “and” between the items in the bulleted 

list.

ii. In § 5.2.1, adds an example at the end of the section to help clarify what 

was meant by what was previously the last sentence in the section.

iii. In § 5.2.2, revises the second bullet to match more closely the language in 

the cross-referenced § 5.12.

iv. In § 5.2.3.1, clarifies how the manual addresses different terms such as 

“feasible,” “reasonable,” and “practical” precautions. Adds footnotes to 

support the discussion. Adds a paragraph to clarify how the manual 

interprets the obligation to take “all feasible” precautions or the 

requirement that “everything feasible” be done.

v. In § 5.2.3.2, clarifies in the bulleted list that money is merely a resource 

like other resources, such as time. Also, revises some of the language 

after the bulleted list for clarity, including clarifying the example in light 

of the warning requirement in relation to protected military medical 

facilities, and adds footnotes to support the following discussion. In the 

last paragraph of the section, adds a footnote to the first clause with source 

that supports the point and elaborates upon it.

vi. Adds § 5.2.3.3 to help clarify the extent to which precautions are legally 

required or are policy decisions.

d. Revisions to what is now § 5.4 (previously § 5.5).

i. Revises the third bullet in the list in § 5.4.2 to correspond to the updated 

language in § 5.11.

ii. In § 5.4.3, adds “against that target” to the end of the second sentence for 

clarity.

iii. In § 5.4.3.1, changes “exceed” to “impose greater restrictions than” for 

clarity and precision.

iv. In § 5.4.3.2, changes “its” to “AP I” in two places in the last paragraph for 

clarity.

v. In § 5.4.4, changes “may” to “might” in the second sentence of the first 

paragraph to clarify that the sentence is a statement of fact rather than a 

statement of what is legally permitted. Adds a sentence to the end of the 

paragraph and provides a footnote with two sources as support for that 

sentence to help clarify what is meant by the preceding sentence.

vi. In § 5.4.6.1, revises the last sentence to account for warning requirements 

with respect to other protected units, vessels, and facilities, such as 

protected military medical units and facilities, and adds a cross-reference 

in the footnote to the relevant section in § 5.11.5.1.

e. Revisions to what is now § 5.6 (previously § 5.7).

i. In § 5.6.1.2, changes “a proportionality analysis” to “applying the 

principle of proportionality” for precision and clarity. Changes “resulting” 

to “that is expected to result” in order to convey that the assessment will 
Page 5 of 9

be undertaken before the attack. Changes “destruction of” to “attack on” 

to clarify that harm resulting from attacks that do not destroy the object 

would be considered. 

ii. In § 5.6.5, adds “capturing, or neutralizing” to the second part of the 

definition of military objective for objects, in order to improve accuracy. 

In the second to last sentence of the section, revises the language to clarify

that the reference to the “proportionality rule” is meant as a reference to 

the obligation related to whether an attack is expected to cause excessive 

harm to civilians. 

iii. In § 5.6.6, capitalizes several of the words in the section title. 

iv. In § 5.6.6.2, adds to an existing footnote reference to a speech by the State 

Department Legal Adviser in April 2016.

v. In § 5.6.7.3, adds a citation to the Eritrea Ethiopia Claims Commission in 

a footnote. In the fifth paragraph, changes “broader than only” to “not 

limited to” and “the enemy’s” to “enemy forces’” for precision and clarity. 

f. In § 5.13.1, changes the reference to “distinction and proportionality rules” to 

“principles of distinction and proportionality” for clarity.

g. In § 5.14, clarifies the location of the referenced discussion by changing “[a]s 

discussed above” to “[a]s discussed in § 5.2.3.2 (What Precautions Are Feasible)” 

and deletes the phrase “, including operational considerations” for simplicity. 

Adds a footnote and cross reference to the last sentence in the last paragraph of § 

5.14.1.

h. Revisions to § 5.16.

i. In § 5.16.1, adds “otherwise” to the second to the last sentence in the 

section to clarify that participation in hostilities is a form of assumption of 

risk, and revises the last sentence in the section to make it consistent with 

§ 5.12.3.3.

ii. In § 5.16.4, updates the title to be more general. Adds a new paragraph to 

account for revisions to § 5.12.3.4.

iii. Adds a new section (§ 5.16.5) to clarify that language about 

“responsibility” for harm to human shields is a different, but related, issue 

from the prohibition on attacks expected to cause excessive incidental 

harm. Adds footnotes with sources to support the main text. 

i. In § 5.18.6, changes “more broadly” to “even if the property does not constitute 

cultural property” to make it clear that pillage of any property is prohibited.

2. Conforming edits to ensure consistent presentation and discussion of the principle of 

proportionality.

a. Changes the “rule of proportionality” to the “principle of proportionality” in the 

second paragraph, first sentence of § 1.11.1.2.

b. Chapter II discussion of the principle of proportionality.

i. Revises footnote 68 in the second sentence of § 2.4 to delete the existing 

source and instead cross-reference § 5.12.3.1, as the source that was 

previously cited in that footnote and other relevant sources are provided in 

the cross-referenced section.

ii. Revises language in the third sentence in the first paragraph of § 2.4.1.2 

from “proportionality rule” to “principle of proportionality” and adds a 
Page 6 of 9

footnote with a cross-reference to the new § 5.10. Shifts from discussing 

the proportionality rule in the last sentence in this paragraph to discussing 

the proportionality principle, including a reference to the obligation to take 

precautions. Omits a specific reference to combatants in the same 

sentence. Adjusts footnotes accordingly.

c. Chapter III discussion of the difference between jus ad bellum and jus in bello

proportionality.

i. Clarifies in the second paragraph of § 3.5.1 that the broader principle of 

proportionality in jus in bello is being discussed. Adds a specific 

reference to the obligation to take feasible precautions and revises the 

characterization of the prohibition against attacks expected to cause 

excessive incidental harm to match more closely the language in § 5.12. 

Adds a footnote at the end of the paragraph cross-referencing § 5.10.1.1.

Adjusts footnotes accordingly.

d. Chapter IV discussion of classes of persons.

i. Adjusts the examples of obligations of combatants in the conduct of 

hostilities in § 4.4.1 to correspond to the discussion of the principles of 

distinction and proportionality in the new § 5.5 and § 5.10. Adjusts

footnotes accordingly.

ii. Revises language in § 4.15.2 from “must accept the risk” to “accept 

certain risks” for clarity and accuracy.

iii. Adds the word “deliberate” before the word “proximity” in the first 

sentence of §4.15.2.3 to emphasize that the proximity of those authorized 

to accompany the armed forces to military operations is deliberate. 

Revises the example in the second sentence of that section to be more 

specific for clarity. Adds a cross-reference at the end of that sentence to 

§ 14.4.2. Revises the third sentence of that section to clarify the 

antecedent of “they” in light of the change to the second sentence. Adjusts

footnotes accordingly.

e. Chapter VII discussion relating to the risk of incidental harm.

i. Revises the discussion in § 7.3.3.1 for precision. Adds two sentences to 

the end of the section about the acceptance of risk by combatants who are 

wounded, sick, or shipwrecked on the battlefield, as well as their status 

under the law of war. Adjusts footnotes accordingly.

ii. Revises the language in § 7.8.2.1 to make the connection to assumption of 

the risk clearer, and in the next sentence explains how the principle of

proportionality applies to the attacker in situations involving military 

medical and religious personnel. Adjusts footnotes accordingly.

iii. Adds the word “military” in § 7.10.1.1 to make clear the scope of the 

section. Revises the last sentence and adds an additional sentence to make 

the connection to assumption of the risk clearer and to explain how the 

principle of proportionality applies to the attacker in situations involving 

military medical units and facilities. Adjusts footnotes accordingly.

iv. Adds the word “military” in § 7.10.1.3 to make clear the scope of the 

section.
Page 7 of 9

v. Adds a sentence to the end of § 7.12.2.5 explaining how the principle of 

proportionality applies to the attacker in situations involving hospital ships 

and coastal rescue craft. Adjusts footnotes accordingly.

f. Chapter XIV discussion of selection of weapons in conducting attacks from the 

air against ground military objectives.

i. Revises the third paragraph of § 14.9.2 for consistency in describing the 

general obligation to take feasible precautions.

g. Chapter XVI discussion of cyber operations and jus in bello proportionality.

i. Changes the “proportionality rule” to the “principle of proportionality” in 

several sentences of § 16.5.1.1 for consistency with language used 

elsewhere. Changes “the proportionality rule” to “this prohibition” in the 

second sentence of § 16.5.1.1 for consistency with language used 

elsewhere. Changes “losses” to “disruptions” in the third paragraph of 

§ 16.5.1.1 for consistency with language used elsewhere. Changes

“applying” to “assessing whether an attack is prohibited by” in the third 

paragraph of § 16.5.1.1 for clarity and accuracy.

ii. Changes the “proportionality rule” to the “principle of proportionality in 

conducting attacks” in the last paragraph of § 16.5.2 for consistency with 

language used elsewhere.

iii. Changes the “proportionality rule” to the “principle of proportionality” in 

the last paragraph of § 16.5.3 for consistency with language used 

elsewhere. Adjusts footnotes accordingly.

h. Chapter XVII discussion of the law of war in non-international armed conflicts.

i. Revises § 17.7 for consistency in describing the general obligation to take 

feasible precautions.

ii. Changes the “distinction and proportionality rules” to the “principles of 

distinction and proportionality” in § 17.7.1 for consistency with language 

used elsewhere.

iii. Revises language in § 17.14.1.2 to clarify the legal consequences of the 

acceptance of incidental harm in non-international armed conflicts by the 

wounded, sick, and shipwrecked. Adjusts footnotes accordingly.

iv. Revises language in § 17.15.1.2 to clarify the legal consequences of the 

acceptance of incidental harm in non-international armed conflicts by 

medical and religious personnel who are part of armed forces or groups. 

Adjusts footnotes accordingly.

v. Revises language in § 17.15.2.2 to clarify the legal consequences of the 

acceptance of incidental harm in non-international armed conflicts by 

medical units and transports that are part of armed forces or groups. 

Adjusts footnotes accordingly.

i. Chapter XVIII discussion of the duties of each individual member of the armed 

forces to implement the law of war.

i. Reorganizes and elaborates slightly upon § 18.3.1 as it explains principles 

that are discussed in the revised sections on proportionality. Adds two 

subsection headings to help organize the section and allow for crossreferencing.
Page 8 of 9

1. In the new § 18.3.1.1, articulates the underlying principle that is 

drawn upon in the revised sections on proportionality and adds an 

example from the revised sections on proportionality.

ii. Adds a sentence in the new § 18.3.2.1 connecting this section with the new 

discussion in § 5.10.2.3.

3. Revisions to § 18.7.2.3.

a. Adds an example in § 18.7.2.3 that cross-references discussion in the new 

§ 5.1.2.1.

b. Adds a sentence in § 18.7.2.3 noting that failures to adhere to policy standards 

that are more restrictive than law of war requirements would not necessarily be 

violations of the law of war.

4. Updates the example used to illustrate the use of the “For example” signal in § 1.2.4 to 

reflect the revisions to that footnote.

5. Adds a new source to support the point made in § 6.13.2 (footnote 345).

6. Updates to account for recent developments in U.S. practice.

a. Adds a source to footnote 217 in § 6.10.3.1 from a U.S. statement to the United 

Nations Sixth Committee in November 2015.

b. Adds a sentence to the end of the first paragraph of § 6.13.4 drawn from a U.S. 

statement to the United Nations Conference on Disarmament in November 2015.

c. Adds material drawn from Principles Related to the Protection of Medical Care 

Provided by Impartial Humanitarian Organizations During Armed Conflict, 

which was affirmed by the Secretary of Defense in a memorandum of October 3,

2016.

i. Adds a paragraph to the end of § 4.26.2, before § 4.26.2.1, that includes a 

relevant point discussed in Chapter XVII and that also makes a point 

reflected in the October 2016 Principles document.

ii. Adds a citation in the sixth bullet in § 5.8.3.2.

iii. Adds a sentence at the end of § 17.8.1.

d. Adds a sentence in § 18.1.2.1 drawn from a speech by the State Department Legal 

Adviser in April 2016.

7. Changes for stylistic consistency.

a. Capitalizes “versus” in the title of § 1.3.1.2.

b. Removes italicization of “proportionality” in “the principle of proportionality” in 

i. The last sentence of § 2.2.1.

ii. The first and third sentences of § 2.4.2.

c. Italicizes the word “parlementaires” in § 12.3.

d. Italicizes the word “Parlementaires” in the title of § 12.5.

e. Standardizes the references to the title of the Legal Adviser, Department of State.

i. Footnote 154, § 1.9.1.

ii. Footnote 218, § 1.11.4.3.

iii. Footnote 148, § 13.10.1.

iv. Footnote 218, § 17.18.2.

f. Standardizes the references to the title of the General Counsel, Department of 

Defense.

i. Footnote 109, § 1.6.5.

ii. Footnote 80, § 2.5.
Page 9 of 9

iii. Footnote 89, § 2.5.3.

iv. Footnote 36, § 6.4.3.

v. Footnote 159, § 6.7.4.

vi. Footnote 173, § 6.8.1.2.

8. Typographical and other administrative errors.

a. Makes conforming changes to the section numbers and titles in the crossreferences.

b. Adds a date to the citation in footnote 111 in § 6.5.9.4.

c. Refines the citation in footnote 53 in § 8.4.2.1.

d. Corrects the date in the citation to the U.S. Government’s reply brief in Hedges v. 

Obama from Sept. 20, 2012 to Dec. 20, 2012.

i. § 4.18.4.1, footnote 390.

ii. § 4.24.1, footnote 477.

e. Corrects typographical errors in footnote 44 in § 11.1.3.4.

9. Punctuation and Spacing.

a. Adds a section symbol in § 8.5.1.1 (footnote 56).

b. Adds a missing comma in the citation to Bothe, Partsch, and Solf in § 17.6.7 

(footnote 109).

10. New Cross-References.

a. Changes the cross-reference in § 1.11.1.2 (footnote 194) from § 5.12 to § 5.10.

b. Adds a cross-reference in § 2.2.3.1 (footnote 42) to § 5.12.2.1.

c. Adds a new cross-reference in § 6.13.2 (footnote 344) to § 5.11.6.

d. Deletes the cross-reference in § 12.5.3 (footnote 61) to § 5.12.3.2.

e. Changes the cross-reference in § 14.4.2 (footnote 78) from § 5.12.3.2 to 

§ 5.12.3.3.
ii

FOREWORD

The law of war is of fundamental importance to the Armed Forces of the United States.

The law of war is part of who we are. George Washington, as Commander in Chief of 

the Continental Army, agreed with his British adversary that the Revolutionary War would be 

“carried on agreeable to the rules which humanity formed” and “to prevent or punish every 

breach of the rules of war within the sphere of our respective commands.” During the Civil War, 

President Lincoln approved a set of “Instructions for the Government of the Armies of the 

United States in the Field,” which inspired other countries to adopt similar codes for their armed 

forces, and which served as a template for international codifications of the law of war. 

After World War II, U.S. military lawyers, trying thousands of defendants before military 

commissions did, in the words of Justice Robert Jackson, “stay the hand of vengeance and 

voluntarily submit their captive enemies to the judgment of law” in “one of the most significant 

tributes that Power has ever paid to Reason.” Reflecting on this distinctive history, one 

Chairman of the Joint Chiefs of Staff observed that “[t]he laws of war have a peculiarly 

American cast.” And it is also true that the laws of war have shaped the U.S. Armed Forces as 

much as they have shaped any other armed force in the world.

The law of war is a part of our military heritage, and obeying it is the right thing to do. 

But we also know that the law of war poses no obstacle to fighting well and prevailing. Nations 

have developed the law of war to be fundamentally consistent with the military doctrines that are 

the basis for effective combat operations. For example, the self-control needed to refrain from 

violations of the law of war under the stresses of combat is the same good order and discipline 

necessary to operate cohesively and victoriously in battle. Similarly, the law of war’s 

prohibitions on torture and unnecessary destruction are consistent with the practical insight that 

such actions ultimately frustrate rather than accomplish the mission.

This manual reflects many years of labor and expertise, on the part of civilian and 

military lawyers from every Military Service. It reflects the experience of this Department in 

applying the law of war in actual military operations, and it will help us remember the hardlearned lessons from the past. Understanding our duties imposed by the law of war and our 

rights under it is essential to our service in the nation’s defense.

Stephen W. Preston

General Counsel of the Department of Defense
iii

PREFACE

This manual is a Department of Defense (DoD)-wide resource for DoD personnel –

including commanders, legal practitioners, and other military and civilian personnel – on the law 

of war.

This manual has many distinguished antecedents that have provided important guidance 

to the U.S. Armed Forces. For example, General Order No. 100, the Instructions for the 

Government of Armies of the United States in the Field, commonly known as the Lieber Code, 

was prepared by Professor Francis Lieber and approved by President Abraham Lincoln during 

the Civil War in 1863.1

 A similar code related to naval warfare titled The Law and Usages of 

War at Sea: A Naval War Code was prepared by then-Captain Charles H. Stockton and 

approved by President William McKinley in 1900.2 The War Department published instructions 

for the armed land forces of the United States in a 1914 manual titled Rules of Land Warfare, 

which was updated in 1917, 1934, and 1940.3

After World War II, in connection with U.S. ratification of the 1949 Geneva 

Conventions, the Department of the Navy published Naval Warfare Information Publication 10-

2, Law of Naval Warfare, in 1955,4 and the Department of the Army published Field Manual 27-

10, The Law of Land Warfare, in 1956, which was updated in 1976.5

 The Department of the 

Army also published pamphlets on international law applicable in peace and war in the 1960s,

and, in 1979, an updated version of the pamphlet on the law of peace.6 The Department of the 

Air Force published in 1976 Air Force Pamphlet 110-31, International Law – The Conduct of 

Armed Conflict and Air Operations, which was updated in 1980.

7 More recently, the Judge 

Advocate General of the Air Force’s School has published a manual titled Air Force Operations 

and the Law in 2002, with new editions in 2009 and 2014.8 The Navy, Marine Corps, and Coast

 1 E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies 

of the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF 

THE UNITED STATES IN THE FIELD (Government Printing Office, 1898).

2 John D. Long, Secretary of the Navy, General Orders No. 551, The Laws and Usages of War at Sea, Jun. 27, 1900, 

reprinted as Appendix I in U.S. Naval War College, International Law Discussions, 1903: The United States Naval 

War Code of 1900, 101 (1904).

3 War Department, Office of the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914); War Department, Office of 

the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914 with Changes Nos. 1 and 2, corrected to Apr. 15, 1917); 

War Department, Basic Field Manual, Volume VII, Military Law, Part Two: Rules of Land Warfare (Jan. 2, 1934); 

War Department Field Manual 27-10, Rules of Land Warfare (Oct. 1, 1940).

4 Department of the Navy, Office of the Chief of Naval Operations, Naval Warfare Information Publication 10-2, 

Law of Naval Warfare (Sept. 1955), reprinted as Appendix in ROBERT W. TUCKER, THE LAW OF WAR AND 

NEUTRALITY AT SEA (U.S. Naval War College International Law Studies, Volume 50, 1955).

5 Department of the Army Field Manual 27-10, The Law of Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15, 

1976).

6 Department of the Army Pamphlet 27-161-2, II International Law (Oct. 23, 1962); Department of the Army 

Pamphlet 27-161-1, I International Law: The Law of Peace (Sept. 1, 1979).

7 Department of the Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air 

Operations (Nov. 19, 1976).
iv

Guard have published several editions of The Commander’s Handbook on the Law of Naval 

Operations starting in 1987 and most recently in 2007.

9

 Helpful annotated supplements have 

also been published.10

In addition to these major publications, DoD components have produced many other 

publications that have supported DoD lawyers in giving advice on the law of war. For example, 

since 1895, the Naval War College has published its International Law Studies journal.11 The 

Judge Advocate General of the Army’s Legal Center & School has published many editions of a 

Law of Armed Conflict Deskbook, a Law of Armed Conflict Documentary Supplement, and an 

Operational Law Handbook.12

The preparation of this manual also has benefited greatly from consulting foreign experts 

and resources – for example, the 2004 edition of the Manual of the Law of Armed Conflict by 

United Kingdom Ministry of Defence.13 In this way, the preparation of this manual is no 

different from its predecessors. For example, the 1956 Army Field manual benefited from 

considering a draft of what ultimately became the 1958 United Kingdom law of war manual, and 

the preparation of the 1914 War Department manual benefited from the Rules of Land Warfare 

prepared by officers of the English Army and Professor Lassa Oppenheim.

14 The law of war 

manuals of Germany, Australia, and Canada were also helpful resources in the preparation of this 

 8 Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and the Law (3rd ed., 

2014); Department of the Air Force, The Judge Advocate General’s School, Air Force Operations & the Law: A 

Guide for Air, Space, and Cyber Forces (2nd ed., 2009); Department of the Air Force, Office of the Judge Advocate 

General, Air Force Operations & the Law (1st ed., 2002).

9 Department of the Navy, Naval Warfare Publication 9, The Commander’s Handbook on the Law of Naval 

Operations (Jul. 1987); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps Warfighting 

Publication 5-2.1 / Commandant Publication P5800.1, The Commander’s Handbook on the Law of Naval 

Operations (Oct. 1995); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps Warfighting 

Publication 5-12.1 / Commandant Publication P5800.7A, The Commander’s Handbook on the Law of Naval 

Operations (Jul. 2007).

10 Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to the Commander’s 

Handbook on the Law of Naval Operations, NWP (Rev.A)/FMFM 1-10 (1989); U.S. Naval War College, Center for 

Naval Warfare Studies, Oceans Law and Policy Department, Annotated Supplement to the Commander’s Handbook 

on the Law of Naval Operations (1997).

11 See, e.g., U.S. Naval War College, International Law Studies, Vol. 88, Non-International Armed Conflict in the 

Twenty-first Century (2012).

12 See, e.g., The Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law 

Department, Law of Armed Conflict Deskbook (2014); The Judge Advocate General’s Legal Center and School, U.S. 

Army, International and Operational Law Department, Law of Armed Conflict Documentary Supplement (2014); 

The Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law 

Department, Operational Law Handbook (2014).

13 United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint Service Manual of the Law of 

Armed Conflict (2004).

14 See War Department, Office of the Chief of Staff, Rules of Land Warfare, Preface 7 (Apr. 25, 1914) (“Especial 

use was made of the Rules of Land Warfare, prepared by officers of the English Army and Prof. L. Oppenheim, 

LL.D., and of Prof. Nagao Ariga’s book, ‘La Guerre Russo-Japonaise,’ which deals so carefully and thoroughly with 

the laws and usages of war during one of the greatest wars of recent times.”).
v

manual.

15

The preparation of this manual has also benefited from the participation of officers from 

the United Kingdom’s Royal Air Force and the Royal Australian Air Force on exchange 

assignments with the U.S. Air Force. In addition, military lawyers from Canada, the United 

Kingdom, New Zealand, and Australia reviewed and commented on a draft of the manual in 

2009 as part of review that also included comments from distinguished scholars.

Promulgating a DoD-wide manual on the law of war has been a long-standing goal of 

DoD lawyers. Memoranda and meeting notes from the 1970s reflect that the international law 

offices of the Department of the Army’s Office of the Judge Advocate General and the 

Department of the Navy’s Office of the Judge Advocate General generally agreed on a concept 

plan for a new all-Services law of war manual that would be a resource for implementing the 

1977 Additional Protocols to the 1949 Geneva Conventions.16 At the time, it was anticipated 

that the United States would ratify the Protocols, which has not occurred.

The origin of this manual may be traced to work in the late 1980s to update Department 

of the Army Field Manual 27-10, The Law of Land Warfare.17 Then, in the mid-1990s, work 

began on an all-Services law of war manual to reflect the views of all DoD components. It was 

envisioned that the manual would provide not only the black letter rules, but also discussion, 

examples of State practice, and references to past manuals, treatises, and other documents to 

provide explanation, clarification, and elaboration. The present manual has sought to realize that 

vision and thus it falls within the tradition of the 1914 War Department manual, as well as the 

1989 and 1997 Commander’s Handbook on the Law of Naval Operations, which also adopted 

this general approach of an annotated manual.

This manual is an institutional publication and reflects the views of the Department of 

Defense, rather than the views of any particular person or DoD component. An effort has been 

made to reflect in this manual sound legal positions based on relevant authoritative sources of the 

law, including as developed by the DoD or the U.S. Government under such sources, and to 

show in the cited sources the past practice of DoD or the United States in applying the law of 

war.

This manual primarily has been prepared by the DoD Law of War Working Group, which 

is chaired by a representative of the DoD General Counsel and includes representatives of the 

Judge Advocates General of the Army, Navy, and Air Force; the Staff Judge Advocate to the 

 15 Germany, Federal Ministry of Defence, Joint Service Regulation (ZDv) 15/2, Law of Armed Conflict Manual

(May 1, 2013); Australian Defence Force, Australian Defence Doctrine Publication 06.4, Law of Armed Conflict

(May 11, 2006); Canada, Department of National Defence, Joint Doctrine Manual B-GJ-005-104/FP-021, Law of 

Armed Conflict at the Operational and Tactical Levels (Aug. 13, 2001).

16 Captain Bruce A. Harlow, JAGC, U.S. Navy, Memorandum for Mr. Waldemar H. Solf (DAJA-IA), Preparation 

of New Law of War Manual (Dec. 28, 1976).

17 Remarks by W. Hays Parks, Customary Law and Additional Protocol I to the Geneva Conventions for Protection 

of War Victims: Future Directions in Light of the U.S. Decision Not to Ratify, 81 AMERICAN SOCIETY OF 

INTERNATIONAL LAW PROCEEDINGS 26 (Apr. 9, 1987) (“I have the job of writing the new U.S. Army Field Manual 

27-10, The Law of Land Warfare, so this panel is of particular interest to me.”).
vi

Commandant of the Marine Corps; the offices of the General Counsels of the Military 

Departments; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff.18 This manual 

has been reviewed by principals of these offices. The preparation of this manual has also 

benefited significantly from the participation of experts from the Department of State, Office of 

the Legal Adviser, and the Department of Justice, Office of Legal Counsel, although the views in 

this manual do not necessarily reflect the views of those Departments or the U.S. Government as 

a whole.

Comments and suggestions from users of the DoD Law of War Manual are invited. All 

such correspondence should be addressed by email to: 

osd.pentagon.ogc.mbx.ia-law-of-war-manual-comments@mail.mil.

 18 DOD DIRECTIVE 2310.01E, DoD Law of War Program ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (providing for a “DoD Law of War Working Group, consisting of representatives, at the election by each of 

the GC, DoD; the General Counsel of each Military Department; the Counsel to the Commandant of the Marine 

Corps; the Judge Advocate General of each Military Department; the Staff Judge Advocate to the Commandant of 

the Marine Corps; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. The DoD Law of War 

Working Group shall develop and coordinate law of war initiatives and issues; support the research, preparation, 

review, and updating of the DoD Law of War Manual; manage other law of war matters as they arise; and provide 

advice to the General Counsel on legal matters covered by this Directive.”).
vii

TABLE OF CONTENTS

Foreword.........................................................................................................................ii

Preface.............................................................................................................................iii

Table of Contents...........................................................................................................vii

List of Abbreviations.....................................................................................................xviii

I – General Background............................................................................................................1

1.1 Purpose and Scope of This Manual ........................................................................1

1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual ............2

1.3 Definition of the Law of War.................................................................................7

1.4 Object and Nature of War ......................................................................................16

1.5 “War” as a Legal Concept......................................................................................18

1.6 Law of War Distinguished From Certain Topics....................................................20

1.7 Treaties..................................................................................................................27

1.8 Customary International Law.................................................................................29

1.9 Subsidiary Means of Determining International Law .............................................34

1.10 Legal Force of the Law of War ............................................................................36

1.11 Jus ad Bellum ......................................................................................................39

II – Principles .............................................................................................................................50

2.1 Introduction ...........................................................................................................50

2.2 Military Necessity..................................................................................................52

2.3 Humanity...............................................................................................................58

2.4 Proportionality.......................................................................................................60

2.5 Distinction .............................................................................................................62

2.6 Honor ....................................................................................................................65

III – Application of the Law of War ........................................................................................70

3.1 Introduction ...........................................................................................................70

3.2 Situations to Which the Law of War Applies .........................................................72

3.3 Status of the Parties and the Law of War................................................................73

3.4 When Jus in Bello Rules Apply..............................................................................78

3.5 Relationship Between Jus in Bello and Jus ad Bellum............................................86

3.6 Reciprocity and Law of War Rules ........................................................................89

3.7 Applying Rules by Analogy...................................................................................92

3.8 End of Hostilities and the Application of the Law of War ......................................94

3.9 Law of War Duties Also Applicable in Peace.........................................................96

IV – Classes of Persons..............................................................................................................97

4.1 Introduction ...........................................................................................................97
viii

4.2 The Armed Forces and the Civilian Population ......................................................99

4.3 Lawful Combatants and Unprivileged Belligerents ................................................102

4.4 Rights, Duties, and Liabilities of Combatants.........................................................105

4.5 Armed Forces of a State.........................................................................................111

4.6 Other Militia and Volunteer Corps.........................................................................117

4.7 Levée en Masse......................................................................................................124

4.8 Rights, Duties, and Liabilities of Civilians.............................................................126

4.9 Military Medical and Religious Personnel..............................................................128

4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel.........132

4.11 Authorized Staff of Voluntary Aid Societies........................................................133

4.12 Staff of a Recognized Aid Society of a Neutral Country.......................................134

4.13 Auxiliary Medical Personnel................................................................................135

4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property.........136

4.15 Persons Authorized to Accompany the Armed Forces..........................................141

4.16 Crews of Merchant Marine Vessels or Civil Aircraft............................................147

4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind 

Enemy Lines....................................................................................................148

4.18 Private Persons Who Engage in Hostilities...........................................................155

4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents.................................160

4.20 Children...............................................................................................................164

4.21 Mercenaries.........................................................................................................168

4.22 AP I Provisions on Civil Defense Personnel.........................................................170

4.23 Law Enforcement Officers...................................................................................170

4.24 Journalists............................................................................................................171

4.25 Delegates or Representatives of the Protecting Powers.........................................176

4.26 ICRC and Other Impartial Humanitarian Organizations.......................................177

4.27 Determining the Status of Detainees in Cases of Doubt........................................180

V – The Conduct of Hostilities..................................................................................................184

5.1 Introduction ...........................................................................................................184

5.2 Overview of Rules for the Protection of Civilians..................................................187

5.3 Assessing Information Under the Law of War........................................................195

5.4 Rules on Conducting Assaults, Bombardments, and Other Attacks ........................197

5.5 Discrimination in Conducting Attacks....................................................................207

5.6 Military Objectives................................................................................................208

5.7 Combatants............................................................................................................220

5.8 Civilians Taking a Direct Part in Hostilities...........................................................226

5.9 Persons Placed Hors de Combat.............................................................................236

5.10 Proportionality in Conducting Attacks .................................................................241

5.11 Proportionality – Feasible Precautions in Planning and Conducting Attacks 

to Reduce the Risk of Harm to Protected Persons and Objects..........................250

5.12 Proportionality – Prohibition on Attacks Expected to Cause Excessive 

Incidental Harm ...............................................................................................260

5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces.........270
ix

5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and 

Objects by the Party Subject to Attack .............................................................271

5.15 Undefended Cities, Towns, and Villages..............................................................276

5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or 

Impede Military Operations .............................................................................282

5.17 Seizure and Destruction of Enemy Property.........................................................285

5.18 Protection of Cultural Property During Hostilities................................................293

5.19 Sieges and Encircled Areas..................................................................................312

5.20 Starvation ............................................................................................................315

5.21 Overview of Good Faith, Perfidy, and Ruses........................................................318

5.22 Treachery or Perfidy Used to Kill or Wound........................................................319

5.23 Use of Enemy Flags, Insignia, and Military Uniforms..........................................322

5.24 Improper Use of Certain Signs.............................................................................324

5.25 Ruses of War and Other Lawful Deceptions.........................................................326

5.26 Non-Forcible Means and Methods of Warfare......................................................331

5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the 

Operations of War Directed Against Their Own Country .................................334

VI – Weapons.............................................................................................................................336

6.1 Introduction ...........................................................................................................336

6.2 DoD Policy of Reviewing the Legality of Weapons...............................................337

6.3 Other Practices to Help Implement Law of War Obligations With Respect to 

Weapons..........................................................................................................340

6.4 Prohibited Weapons...............................................................................................341

6.5 Lawful Weapons....................................................................................................342

6.6 Weapons Calculated to Cause Superfluous Injury ..................................................357

6.7 Inherently Indiscriminate Weapons........................................................................364

6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons ........367

6.9 Biological Weapons...............................................................................................373

6.10 Certain Environmental Modification Techniques .................................................376

6.11 Weapons Injuring by Fragments Not Detectable by X-Rays.................................379

6.12 Landmines, Booby-Traps, and Other Devices ......................................................380

6.13 Cluster Munitions ................................................................................................403

6.14 Incendiary Weapons ............................................................................................406

6.15 Laser Weapons ....................................................................................................410

6.16 Riot Control Agents.............................................................................................413

6.17 Herbicides............................................................................................................415

6.18 Nuclear Weapons.................................................................................................416

6.19 Explosive Ordnance.............................................................................................419

6.20 Explosive Remnants of War.................................................................................424

VII –Wounded, Sick, Shipwrecked, Dead, and the Medical Services...................................433

7.1 Introduction ...........................................................................................................433

7.2 Application of the Protections of the GWS and GWS-Sea......................................436
x

7.3 Respect and Protection of the Wounded, Sick, and Shipwrecked............................438

7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick, 

Shipwrecked, and Dead....................................................................................443

7.5 Humane Treatment and Care of Enemy Military Wounded, Sick, and 

Shipwrecked in the Power of a Party to the Conflict.........................................447

7.6 Accountability Information From the Enemy Military Wounded, Sick, 

Shipwrecked, and Dead....................................................................................450

7.7 Treatment and Handling of Enemy Military Dead..................................................452

7.8 Respect and Protection of Categories of Medical and Religious Personnel.............457

7.9 Captured Medical and Religious Personnel ............................................................461

7.10 Military Medical Units and Facilities...................................................................467

7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment ..............474

7.12 Hospital Ships, Sick-Bays in Warships, and Coastal Rescue Craft........................475

7.13 Chartered Medical Transport Ships......................................................................488

7.14 Military Medical Aircraft.....................................................................................488

7.15 Display of the Distinctive Emblem to Facilitate Identification..............................492

7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant 

Mothers............................................................................................................499

7.17 Civilian Hospitals and Their Personnel ................................................................500

7.18 Land and Sea Civilian Hospital Convoys .............................................................503

7.19 Civilian Medical Aircraft .....................................................................................504

7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked ....................................505

VIII – Detention: Overview and Baseline Rules ....................................................................508

8.1 Introduction ...........................................................................................................508

8.2 Humane Treatment of Detainees............................................................................514

8.3 Security Measures..................................................................................................517

8.4 Interrogation ..........................................................................................................518

8.5 Adequate Food, Drinking Water, and Clothing ......................................................519

8.6 General Conditions of Detention Facilities.............................................................519

8.7 Segregation of Detainees .......................................................................................520

8.8 Medical Attention ..................................................................................................521

8.9 Administration and Discipline in Detention Facilities ............................................522

8.10 Contacts With the Outside World.........................................................................522

8.11 Religious Exercise ...............................................................................................523

8.12 Intellectual, Physical, and Recreational Activities................................................524

8.13 Adequate Working Conditions.............................................................................525

8.14 Procedures for Detention......................................................................................525

8.15 National Accountability for Detention..................................................................528

8.16 Criminal Procedure and Punishment ....................................................................529

IX – Prisoners of War (POWs).................................................................................................533

9.1 Introduction ...........................................................................................................534

9.2 General Principles Applicable to the Treatment of POWs......................................537
xi

9.3 POW Status...........................................................................................................539

9.4 National-Level GPW Implementation Measures ....................................................544

9.5 Humane Treatment and Basic Protections for POWs..............................................546

9.6 Security Measures With Respect to POWs.............................................................551

9.7 POW Effects and Articles of Personal Use.............................................................552

9.8 Interrogation of POWs...........................................................................................554

9.9 Evacuation From Combat Areas ............................................................................556

9.10 Transit or Screening Facilities..............................................................................558

9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living 

Conditions .......................................................................................................559

9.12 Segregation of POWs...........................................................................................565

9.13 Food, Water, Tobacco, and Clothing for POWs ...................................................567

9.14 Medical Attention for Interned POWs..................................................................569

9.15 Religious Exercise by POWs ...............................................................................571

9.16 Intellectual, Physical, and Recreational Activities................................................573

9.17 Canteens for POWs..............................................................................................575

9.18 Financial Resources of POWs..............................................................................576

9.19 POW Labor..........................................................................................................583

9.20 POW Correspondence and Relief Shipments........................................................590

9.21 Private Legal Matters of POWs............................................................................598

9.22 Internal Discipline of POW Camps......................................................................600

9.23 POW Requests, Complaints, and Reports About Conditions of Captivity.............603

9.24 POW Representatives ..........................................................................................605

9.25 POW Escapes ......................................................................................................612

9.26 General Principles Applicable to POW Discipline................................................616

9.27 Disciplinary Proceedings and Punishment............................................................619

9.28 Judicial Proceedings and Punishment...................................................................624

9.29 Transfer of POWs From the POW Camp .............................................................631

9.30 Transfer of POWs to the Custody of Another Detaining Power............................632

9.31 National Accounting of the Detention of POWs...................................................634

9.32 Role of the Protecting Power in the GPW ............................................................639

9.33 Access to POWs by the Protecting Powers, ICRC, and Relief Organizations........642

9.34 Death of POWs....................................................................................................643

9.35 Exchanges and Other Release and Repatriation of POWs During Hostilities........647

9.36 Direct Repatriation and Accommodation in Neutral Countries During 

Hostilities.........................................................................................................648

9.37 Release and Repatriation After Hostilities............................................................653

9.38 Procedure on Release and Repatriation After Hostilities.......................................659

9.39 Code of Conduct for U.S. Armed Forces..............................................................661

X – Civilians in the Hands of a Party to the Conflict .............................................................665

10.1 Introduction .........................................................................................................666

10.2 National-Level GC Implementation Measures......................................................668

10.3 Protected Person Status........................................................................................669

10.4 Derogation for Security Reasons..........................................................................674
xii

10.5 Humane Treatment and Other Basic Protections for Protected Persons.................676

10.6 Measures of Control and Security ........................................................................679

10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory ..........682

10.8 Expulsion From Areas Within a Belligerent’s Home Territory and Departure 

and Transfers of Protected Persons From a Belligerent’s Home Territory.........685

10.9 Internment ...........................................................................................................688

10.10 Segregation of Internees.....................................................................................691

10.11 Safety, Hygiene, and Living Conditions in Places of Internment ........................693

10.12 Canteens for Internees........................................................................................696

10.13 Food, Water, Tobacco, and Clothing for Internees..............................................697

10.14 Medical Attention for Internees..........................................................................699

10.15 Religious Exercise by Internees .........................................................................701

10.16 Intellectual, Physical, and Recreational Activities..............................................702

10.17 Internee Labor....................................................................................................703

10.18 Internees’ Articles of Personal Use ....................................................................706

10.19 Financial Resources of Internees........................................................................707

10.20 Administration of Places of Internment and Discipline.......................................709

10.21 Internee Petitions, Complaints, and Reports About Conditions of 

Internment .......................................................................................................711

10.22 Internee Committees..........................................................................................712

10.23 Internee Correspondence and Relief Shipments..................................................716

10.24 Private Legal Matters of Internees......................................................................724

10.25 Internees and Visits of Family and Friends.........................................................725

10.26 Internee Escapes ................................................................................................726

10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions 

Regarding Internees.........................................................................................727

10.28 Disciplinary Proceedings and Punishment..........................................................728

10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or 

Internees in a Belligerent’s Home Territory......................................................733

10.30 Transfers of Internees From the Place of Internment ..........................................737

10.31 National Accounting for Protected Persons in Its Power.....................................740

10.32 Role of the Protecting Power in the GC..............................................................745

10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief 

Organizations...................................................................................................747

10.34 Death of Internees..............................................................................................749

10.35 Release, Return, Repatriation of Internees After the Close of Hostilities ............751

XI – Military Occupation ..........................................................................................................754

11.1 Introduction .........................................................................................................754

11.2 When Military Occupation Law Applies..............................................................763

11.3 End of Occupation and Duration of GC Obligations.............................................769

11.4 Legal Position of the Occupying Power ...............................................................771

11.5 Duty of the Occupying Power to Ensure Public Order and Safety ........................773

11.6 Protection of the Population of an Occupied Territory..........................................774

11.7 Authority of the Occupying Power Over Inhabitants............................................777
xiii

11.8 Administration of Occupied Territory ..................................................................779

11.9 Local Law and Legislation...................................................................................782

11.10 Ordinary Courts in Occupied Territory...............................................................785

11.11 Criminal Law in Occupied Territory ..................................................................787

11.12 Movement of Persons in Occupied Territory ......................................................795

11.13 Protection of Children in Occupied Territory .....................................................798

11.14 Food and Medical Supplies for the Civilian Population......................................799

11.15 Public Health and Hygiene.................................................................................800

11.16 Spiritual Assistance............................................................................................802

11.17 Relief Efforts and Consignments........................................................................803

11.18 Enemy Property During Occupation...................................................................806

11.19 Protection of Cultural Property During Occupation............................................816

11.20 Labor of Protected Persons in Occupied Territory..............................................818

11.21 Judges and Other Public Officials ......................................................................823

11.22 Public Finances and Taxes.................................................................................825

11.23 Other Economic Regulation of Occupied Territory ............................................835

XII – Non-Hostile Relations Between Belligerents .................................................................839

12.1 Introduction .........................................................................................................839

12.2 Principle of Good Faith in Non-Hostile Relations ................................................842

12.3 Methods for Communication Between Belligerents..............................................843

12.4 The White Flag of Truce to Initiate Negotiations..................................................844

12.5 Rules for Parlementaires .....................................................................................846

12.6 Military Passports, Safe-Conducts, and Safeguards..............................................851

12.7 Cartels .................................................................................................................856

12.8 Capitulations – Negotiated Instruments of Surrender............................................856

12.9 Capitulations – Subjects Usually Addressed.........................................................860

12.10 Capitulations – Violations and Denunciation......................................................862

12.11 Armistices and Other Cease-Fire Agreements....................................................863

12.12 Armistices – Subjects Usually Addressed...........................................................869

12.13 Armistices – Violations and Denunciation..........................................................873

12.14 U.N. Security Council Cease-Fires.....................................................................875

XIII – Naval Warfare ................................................................................................................877

13.1 Introduction .........................................................................................................877

13.2 Legal Boundaries of the Oceans...........................................................................879

13.3 Overview of Rules for Naval Engagements..........................................................887

13.4 Enemy Warships..................................................................................................890

13.5 Enemy Merchant Vessels.....................................................................................891

13.6 Enemy Vessels Exempt From Capture or Destruction ..........................................894

13.7 Submarine Warfare ..............................................................................................896

13.8 Belligerent Control of the Immediate Area of Naval Operations...........................897

13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and 

Safety...............................................................................................................899
xiv

13.10 Blockade............................................................................................................903

13.11 Naval Mines.......................................................................................................909

13.12 Torpedoes..........................................................................................................914

13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags.........915

XIV – Air and Space Warfare ..................................................................................................917

14.1 Introduction .........................................................................................................917

14.2 Legal Boundaries of Airspace ..............................................................................921

14.3 Aircraft Status......................................................................................................926

14.4 Status of Aircrew on Military Aircraft..................................................................929

14.5 Measures Short of Attack: Interception, Diversion, and Capture..........................931

14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities..............933

14.7 Airspace Zones....................................................................................................934

14.8 Attacks Against Military Objectives in the Air.....................................................934

14.9 Air Attacks Against Military Objectives on the Ground .......................................937

14.10 International Law And Warfare in Outer Space..................................................940

XV – The Law of Neutrality......................................................................................................946

15.1 Introduction .........................................................................................................946

15.2 Application of the Law of Neutrality....................................................................950

15.3 Overview of the Neutrality Law’s Framework of Reciprocal Rights and 

Duties ..............................................................................................................956

15.4 Remedies for Violations of Neutrality Law ..........................................................960

15.5 Prohibition on the Use of Neutral Territory as a Base of Operations.....................963

15.6 Neutral Persons....................................................................................................967

15.7 Neutral Waters.....................................................................................................970

15.8 Passage of Belligerent Vessels and Aircraft Through International Straits and 

Archipelagic Sea Lanes....................................................................................974

15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal 

Waters .............................................................................................................976

15.10 Neutral Airspace ................................................................................................980

15.11 Belligerent Right of Angary...............................................................................982

15.12 Neutral Commerce and Carriage of Contraband .................................................983

15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil 

Aircraft ............................................................................................................989

15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and 

Neutral-Marked Civil Aircraft..........................................................................994

15.15 Capture of Neutral Vessels and Aircraft .............................................................995

15.16 Belligerent Forces Taking Refuge in Neutral Territory.......................................1000

15.17 POWs or Internees Brought to, or Received by, a Neutral State..........................1005

15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral 

Territory ..........................................................................................................1007
xv

XVI – Cyber Operations ...........................................................................................................1011

16.1 Introduction .........................................................................................................1011

16.2 Application of the Law of War to Cyber Operations.............................................1013

16.3 Cyber Operations and Jus ad Bellum....................................................................1015

16.4 Cyber Operations and the Law of Neutrality ........................................................1019

16.5 Cyber Operations and Jus in Bello .......................................................................1020

16.6 Legal Review of Weapons That Employ Cyber Capabilities ................................1025

XVII – Non-International Armed Conflict (NIAC)................................................................1027

17.1 Introduction .........................................................................................................1027

17.2 Application of International Law to NIACs..........................................................1032

17.3 Special Agreements Between Parties to the Conflict ............................................1040

17.4 A State’s Use of Its Domestic Law and NIAC......................................................1041

17.5 Principle of Distinction in NIAC..........................................................................1045

17.6 Respect and Humane Treatment of Persons Taking No Active Part in 

Hostilities in NIAC ..........................................................................................1048

17.7 Rules on Conducting Attacks in NIAC.................................................................1050

17.8 Impartial Humanitarian Organizations and Humanitarian Activities During 

NIAC...............................................................................................................1052

17.9 Protection of the Civilian Population in NIAC .....................................................1052

17.10 Protection of Children in NIAC..........................................................................1054

17.11 Protection of Cultural Property in NIAC ............................................................1055

17.12 Use of Captured or Surrendered Enemy Personnel in NIAC...............................1056

17.13 Weapons in NIAC..............................................................................................1057

17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC...................1058

17.15 Protection of Medical and Religious Personnel and Medical Transports in 

NIAC...............................................................................................................1060

17.16 Display of the Distinctive Emblem in NIAC ......................................................1062

17.17 Detention in NIAC.............................................................................................1063

17.18 Non-Intervention and Neutral Duties in NIAC ...................................................1064

XVIII – Implementation and Enforcement of the Law of War.............................................1069

18.1 Introduction .........................................................................................................1069

18.2 Prudential Reasons Supporting the Implementation and Enforcement of the

Law of War......................................................................................................1072

18.3 Duties of Individual Members of the Armed Forces.............................................1074

18.4 Commanders’ Duty to Implement and Enforce the Law of War ...........................1077

18.5 Role of Judge Advocates and Legal Advisers.......................................................1079

18.6 Dissemination, Study, and Other Measures to Facilitate Understanding of 

Duties Under the Law of War...........................................................................1081

18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law 

of War..............................................................................................................1084

18.8 Considering Law of War Obligations in the Planning of Military Operations.......1087

18.9 States’ Obligations With Respect to Violations of the Law of War.......................1087
xvi

18.10 Methods for Responding to Violations of the Law of War by the Enemy ...........1095

18.11 Protests and Demands to the Offending Party.....................................................1095

18.12 U.N. Security Council and Enforcement of the Law of War ...............................1096

18.13 National Investigations of Alleged Violations of the Law of War.......................1099

18.14 International Mechanisms to Investigate Alleged Law of War Violations...........1101

18.15 Protecting Power and Other Neutral Intermediaries............................................1103

18.16 Compensation for Violations of the Law of War ................................................1107

18.17 Retorsion ...........................................................................................................1110

18.18 Reprisals............................................................................................................1110

18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law 

of War..............................................................................................................1117

18.20 Prosecution in International and Hybrid Courts..................................................1125

18.21 Limits on the Punishment of Individuals Under the Law of War ........................1131

18.22 Principles of Individual Criminal Responsibility for Crimes Under 

International Law.............................................................................................1136

18.23 Theories of Individual Criminal Liability...........................................................1139

XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents............1148

19.1 Introduction .........................................................................................................1148

19.2 Lists of Treaties and Other Documents.................................................................1148

19.3 Lieber Code .........................................................................................................1155

19.4 1856 Paris Declaration Respecting Maritime Law................................................1156

19.5 1864 GWS...........................................................................................................1157

19.6 1868 St. Petersburg Declaration ...........................................................................1157

19.7 1899 and 1907 Hague Declarations on Weapons..................................................1158

19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations 

Regarding Land Warfare..................................................................................1160

19.9 1907 Hague X......................................................................................................1163

19.10 1922 Washington Treaty on Submarines and Noxious Gases .............................1164

19.11 1923 Hague Air and Radio Rules.......................................................................1164

19.12 1925 Geneva Gas and Bacteriological Protocol..................................................1165

19.13 1929 Geneva Conventions .................................................................................1167

19.14 1930 London Treaty for the Limitation and Reduction of Naval Armament 

and 1936 London Protocol ...............................................................................1168

19.15 1935 Roerich Pact..............................................................................................1168

19.16 1949 Geneva Conventions .................................................................................1169

19.17 1954 Hague Cultural Property Convention.........................................................1174

19.18 Vienna Convention on the Law of Treaties.........................................................1175

19.19 Biological Weapons Convention ........................................................................1176

19.20 1977 Additional Protocols to the 1949 Geneva Conventions ..............................1176

19.21 CCW, CCW Amended Article 1, and CCW Protocols........................................1181

19.22 Chemical Weapons Convention .........................................................................1188

19.23 Rome Statute of the International Criminal Court...............................................1191

19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces ....................................1192

19.25 2005 ICRC Study on Customary International Humanitarian Law......................1192
xvii

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

LIST OF ABBREVIATIONS

To make the manual easier to read, the use of abbreviations has often been avoided, 

especially in the main text. Nonetheless, the following abbreviations of the titles of documents 

have been used for frequently cited documents.

Abbreviation Long Form

1899 Hague II Convention with Respect to the Laws and Customs of War 

on Land, Jul. 29, 1899, 32 Stat. 1803

1899 Hague II Reg. Regulations Respecting the Laws and Customs of War on 

Land, annexed to Convention with Respect to the Laws and 

Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803, 

1811

1909 Declaration of London Declaration Concerning the Laws of Maritime War, Feb. 

26, 1909, reprinted in James Brown Scott, The Declaration 

of London, February 26, 1909: A Collection of Official 

Papers and Documents Relating to the International Naval 

Conference Held in London, December, 1908—February, 

1909 (1919)

1914 Rules of Land Warfare War Department, Office of the Chief of Staff, Rules of 

Land Warfare (Apr. 25, 1914)

1925 Geneva Gas and 

Bacteriological Protocol

Protocol for the Prohibition of the Use in War of 

Asphyxiating, Poisonous, or Other Gases, and of 

Bacteriological Methods of Warfare, Jun. 17, 1925, 94 

LNTS 65

1928 Pan American Maritime 

Neutrality Convention

Pan American Maritime Neutrality Convention, Feb. 20, 

1928, 47 Stat. 1989

1929 GPW Geneva Convention Relative to the Treatment of Prisoners 

of War, Jul. 27, 1929, 47 Stat. 2021

1929 GWS Geneva Convention for the Amelioration of the Condition 

of the Wounded and Sick of Armies in the Field, Jul. 27, 

1929, 47 Stat. 2074

1940 Rules of Land Warfare War Department, Field Manual 27-10, Rules of Land 

Warfare (1940)

1944 Chicago Convention Convention on International Civil Aviation, Dec. 7, 1944, 

61 Stat. 1180

1954 Hague Cultural Property 

Convention

Convention for the Protection of Cultural Property in the 

Event of Armed Conflict, 249 UNTS 240

1955 NWIP 10-2 Department of the Navy, Office of the Chief of Naval 

Operations, Naval Warfare Information Publication 10-2, 

Law of Naval Warfare (Sept. 1955), reprinted as Appendix 

in Robert W. Tucker, The Law of War and Neutrality at 

Sea (U.S. Naval War College International Law Studies, 

Volume 50, 1955)

1956 FM 27-10 (Change No. 1 

1976)

Department of the Army Field Manual 27-10, The Law of 

Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15, 1976)
xix

Abbreviation Long Form

1958 UK Manual United Kingdom War Office, Manual of Military Law, Part 

III: The Law of War on Land (1958)

1976 Air Force Pamphlet 110-31 Department of the Air Force Pamphlet 110-31, 

International Law – The Conduct of Armed Conflict and 

Air Operations (Nov. 19, 1976)

1989 NWP 9 Department of the Navy, Office of the Judge Advocate 

General, Annotated Supplement to the Commander’s 

Handbook on the Law of Naval Operations, NWP 

(Rev.A)/FMFM 1-10 (1989)

1997 Multi-Service Detention 

Regulation

Army Regulation 190-8 / Office of the Chief of Naval 

Operations Instruction 3461.6 / Air Force Joint Instruction 

31-304 / Marine Corps Order 3461.1, Enemy Prisoners of 

War, Retained Personnel, Civilian Internees and Other 

Detainees (Oct. 1, 1997)

1997 NWP 9 U.S. Naval War College, Center for Naval Warfare Studies, 

Oceans Law and Policy Department, Annotated Supplement 

to the Commander’s Handbook on the Law of Naval 

Operations (1997)

2001 Canadian Manual Canada, Department of National Defence, Joint Doctrine 

Manual B-GJ-005-104/FP-021, Law of Armed Conflict at 

the Operational and Tactical Levels (Aug. 13, 2001)

2004 UK Manual United Kingdom Ministry of Defence, Joint Service 

Publication 383, The Joint Service Manual of the Law of 

Armed Conflict (2004)

2006 Australian Manual Australian Defence Force, Australian Defence Doctrine 

Publication 06.4, Law of Armed Conflict (May 11, 2006)

2007 NWP 1-14M Department of the Navy, Naval Warfare Publication 1-14M 

/ Marine Corps Warfighting Publication 5-12.1 / 

Commandant Publication P5800.7A, The Commander’s 

Handbook on the Law of Naval Operations (Jul. 2007)

2013 German Manual Germany, Federal Ministry of Defence, Joint Service 

Regulation (ZDv) 15/2, Law of Armed Conflict Manual

(May 1, 2013)

AJIL American Journal of International Law

AP I Protocol (I) Additional to the Geneva Conventions of 

August 12, 1949, and Relating to the Protection of Victims 

of International Armed Conflicts, Jun. 8, 1977, 1125 UNTS 

3

AP II Protocol (II) Additional to the Geneva Conventions of 12 

August 1949, and Relating to the Protection of Victims of 

Non-International Armed Conflicts, Jun. 8, 1977, 1125 

UNTS 609
xx

Abbreviation Long Form

AP III Protocol (III) Additional to the Geneva Conventions of 12 

August 1949, and Relating to the Adoption of an 

Additional Distinctive Emblem, Dec. 8, 2005, 2404 UNTS 

1

Appendix to 1985 CJCS Memo on 

AP I

Appendix to John W. Vessey, Jr., Chairman, Joint Chiefs of 

Staff, Review of the 1977 First Additional Protocol to the 

Geneva Conventions of 1949, May 3, 1985. 

Bevans Charles I. Bevans, Assistant Legal Adviser, Department of 

State, Treaties and Other International Agreements of the 

United States of America, 1776-1949 (13 Volumes, 1968-

1976)

Biological Weapons Convention Convention on the Prohibition of the Development, 

Production and Stockpiling of Bacteriological (Biological) 

and Toxin Weapons and on Their Destruction, Apr. 10, 

1972, 1015 UNTS 163

Bothe, Partsch, & Solf, New Rules Michael Bothe, Karl Josef Partsch, & Waldemar A. Solf, 

New Rules for Victims of Armed Conflicts (1982)

CCW Convention on Prohibitions or Restrictions on the Use of 

Certain Conventional Weapons Which May be Deemed to 

be Excessively Injurious or to Have Indiscriminate Effects, 

Oct. 10, 1980, 1342 UNTS 137

CCW Amended Amendment to Article I of the Convention on Prohibitions 

or Restrictions on the Use of Certain Conventional 

Weapons Which May be Deemed to be Excessively 

Injurious or to Have Indiscriminate Effects, Dec. 21, 2001, 

2260 UNTS 82

CCW Amended Mines Protocol Protocol (II) on Prohibitions or Restrictions on the Use of 

Mines, Booby-Traps and Other Devices, as Amended on 

May 3, 1996, Annexed to the Convention on Prohibitions 

or Restrictions on the Use of Certain Conventional 

Weapons Which May be Deemed to be Excessively 

Injurious or to Have Indiscriminate Effects, May 3, 1996, 

2048 UNTS 93

CCW Protocol I Protocol (I) on Non-Detectable Fragments, Annexed to the 

Convention on Prohibitions or Restrictions on the Use of 

Certain Conventional Weapons Which May be Deemed to 

be Excessively Injurious or to Have Indiscriminate Effects, 

Oct. 10, 1980, 1342 UNTS 137

CCW Protocol III on Incendiary 

Weapons

Protocol (III) on Prohibitions or Restrictions on the Use of 

Incendiary Weapons, Annexed to the Convention on 

Prohibitions or Restrictions on the Use of Certain 

Conventional Weapons Which May be Deemed to be 

Excessively Injurious or to Have Indiscriminate Effects, 

Oct. 10, 1980, 1342 UNTS 137
xxi

Abbreviation Long Form

CCW Protocol IV on Blinding 

Laser Weapons

Protocol (IV) on Blinding Laser Weapons, Annexed to the 

Convention on Prohibitions or Restrictions on the Use of 

Certain Conventional Weapons Which May be Deemed to 

be Excessively Injurious or to Have Indiscriminate Effects, 

Oct. 13, 1995, 1380 UNTS 163

CCW Protocol V on Explosive 

Remnants of War

Protocol (V) on Explosive Remnants of War, Annexed to 

the Convention on Prohibitions or Restrictions on the Use 

of Certain Conventional Weapons Which May be Deemed 

to be Excessively Injurious or to Have Indiscriminate 

Effects, Nov. 28, 2003, 2399 UNTS 100

Chairman’s Commentary to the 

Copenhagen Process: Principles 

and Guidelines

The Copenhagen Process on the Handling of Detainees in 

International Military Operations, Chairman’s Commentary 

to the Copenhagen Process: Principles and Guidelines

(Denmark, Ministry of Foreign Affairs, Oct. 19, 2012)

Chemical Weapons Convention Convention on the Prohibition of the Development, 

Production, Stockpiling and Use of Chemical Weapons and 

on Their Destruction, Jan. 13, 1993, 1974 UNTS 317

Copenhagen Process: Principles 

and Guidelines

The Copenhagen Process on the Handling of Detainees in 

International Military Operations, The Copenhagen 

Process: Principles and Guidelines (Denmark, Ministry of 

Foreign Affairs, Oct. 19, 2012)

Digest of United States Practice in 

International Law

Digest of United States Practice in International Law 

(Department of State, Office of the Legal Adviser)

ENMOD Convention Convention on the Prohibition of Military or Any Other 

Hostile Use of Environmental Modification Techniques, 

Dec. 10, 1976, 1108 UNTS 151

Final Record of 1949 Geneva 

Diplomatic Conference

Diplomatic Conference of Geneva, Final Record of the 

Diplomatic Conference of Geneva of 1949 (Switzerland,

Federal Political Department, 1949)

Final Report on the Persian Gulf 

War

Department of Defense, Conduct of the Persian Gulf War: 

Final Report to Congress (1992)

GC Geneva Convention Relative to the Protection of Civilian 

Persons in Time of War, Aug. 12, 1949, 75 UNTS 287

GC Commentary Jean S. Pictet, Geneva Convention Relative to the 

Protection of Civilian Persons in Time of War: 

Commentary (International Committee of the Red Cross, 

1958)

GPW Geneva Convention Relative to the Treatment of Prisoners 

of War, Aug. 12, 1949, 75 UNTS 135

GPW Commentary Jean S. Pictet, Geneva Convention Relative to the 

Treatment of Prisoners of War: Commentary (International 

Committee of the Red Cross, 1960)

Greenspan, Modern Law of Land 

Warfare

Morris Greenspan, The Modern Law of Land Warfare

(1959)
xxii

Abbreviation Long Form

Grotius, Law of War & Peace Hugo Grotius, The Law of War and Peace: De Jure Belli 

ac Pacis Libri Tres (translated by Francis W. Kelsey, 1925)

GWS Geneva Convention for the Amelioration of the Condition 

of the Wounded and Sick in Armed Forces in the Field,

Aug. 12, 1949, 75 UNTS 31

GWS Commentary Jean S. Pictet, Geneva Convention for the Amelioration of 

the Condition of the Wounded and Sick in Armed Forces in 

the Field: Commentary (International Committee of the 

Red Cross, 1952)

GWS-Sea Geneva Convention for the Amelioration of the Condition 

of the Wounded, Sick and Shipwrecked Members of Armed 

Forces at Sea, Aug. 12, 1949, 75 UNTS 85

GWS-Sea Commentary Jean S. Pictet, Geneva Convention for the Amelioration of 

the Condition of the Wounded, Sick and Shipwrecked 

Members of Armed Forces at Sea: Commentary

(International Committee of the Red Cross, 1960)

Hague IV Convention (IV) Respecting the Laws and Customs of War 

on Land, Oct. 18, 1907, 36 Stat. 2277

Hague IV Reg. Regulations Respecting the Laws and Customs of War on 

Land, Annex to Convention (IV) Respecting the Laws and 

Customs of War on Land, Oct. 18, 1907, 36 Stat. 2295

Hague IX Convention (IX) Concerning Bombardment by Naval 

Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351

Hague V Convention (V) Respecting the Rights and Duties of 

Neutral Powers and Persons in Case of War on Land, Oct. 

18, 1907, 36 Stat. 2310

Hague VIII Convention (VIII) Relative to the Laying of Automatic 

Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332

Hague X Convention (X) for the Adaptation to Maritime Warfare of 

the Principles of the Geneva Convention, Oct. 18, 1907, 36 

Stat. 2371

Hague XI Convention (XI) Relative to Certain Restrictions with 

Regard to the Exercise of the Right of Capture in Naval 

War, Oct. 18, 1907, 36 Stat. 2396

Hague XIII Convention (XIII) Concerning the Rights and Duties of 

Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415

ICJ Statute Statute of the International Court of Justice (Annex to the 

Charter of the United Nations), Jun. 26, 1945, 59 Stat. 1055

ICRC AP Commentary Jean S. Pictet et al., Commentary on the Additional 

Protocols of 8 June 1977 to the Geneva Conventions of 12 

August 1949 (International Committee of the Red Cross, 

1987)
xxiii

Abbreviation Long Form

ICTR International Criminal Tribunal for the Prosecution of 

Persons Responsible for Genocide and Other Serious 

Violations of International Humanitarian Law Committed 

in the Territory of Rwanda and Rwandan Citizens 

Responsible for Genocide and Other Such Violations 

Committed in the Territory of Neighbouring States, 

between 1 January 1994 and 31 December 1994

ICTR Statute Statute of the ICTR, Annex to U.N. Security Council 

Resolution 955 (1994), U.N. Doc. S/RES/955(1994) (Nov. 

8, 1994). 

ICTY International Tribunal for the Prosecution of Persons 

Responsible for Serious Violations of International 

Humanitarian Law Committed in the Territory of the 

Former Yugoslavia since 1991

ICTY Statute Statute of the ICTY, Annex to Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council 

Resolution 808 (1993), U.N. Doc. S/25704 (May 3, 1993), 

adopted by U.N. Security Council Resolution 827 (1993), 

U.N. Doc. S/RES/827(1993) (May 25, 1993).

J.A.G.S. Text No. 11, Law of 

Belligerent Occupation

U.S. Army, The Judge Advocate General’s School Text 

No. 11, Law of Belligerent Occupation (Jun. 1, 1944, 

reissued Jul. 2, 1945)

Lauterpacht, II Oppenheim’s 

International Law

Lassa Oppenheim, International Law, Volume II: Disputes, 

War and Neutrality (edited by H. Lauterpacht, 7th ed., 

1952)

Levie, Documents on POWs Howard S. Levie, Documents on Prisoners of War (U.S. 

Naval War College International Law Studies, Volume 60, 

1979)

Levie, POWs Howard Levie, Prisoners of War in International Armed 

Conflicts (U.S. Naval War College International Law 

Studies, Volume 59, 1978)

Lieber Code E. D. Townsend, Assistant Adjutant General, General 

Orders No. 100, Instructions for the Government of Armies 

of the United States in the Field, Apr. 24, 1863, reprinted in

Instructions for the Government of Armies of the United 

States in the Field (Government Printing Office, 1898).

LNTS League of Nations Treaty Series

LOS Convention United Nations Convention on the Law of the Sea, Dec.10, 

1982, 1833 UNTS 396.

Message from the President 

Transmitting AP II

Message from the President of the United States 

Transmitting the Protocol II Additional to the Geneva 

Conventions of August 12, 1949, and Relating to the 

Protection of Victims of Noninternational Armed Conflicts, 

Concluded at Geneva on June 10, 1977, Treaty Doc. 100-2 

(1987)
xxiv

Abbreviation Long Form

Message from the President 

Transmitting AP III, CCW 

Amended Article 1, and CCW 

Protocol V on Explosive 

Remnants of War

Message from the President of the United States 

transmitting Protocol Additional to the Geneva 

Conventions of 12 August 1949, and Relating to the 

Adoption of an Additional Distinctive Emblem (The 

“Geneva Protocol III”), Adopted at Geneva on December 8, 

2005, and Signed by the United States on that date; The 

Amendment to Article 1 of the Convention on Prohibitions 

or Restrictions on the Use of Certain Conventional 

Weapons Which May Be Deemed to be Excessively 

Injurious or to Have Indiscriminate Effects (“The CCW 

Amendment”); and The CCW Protocol Explosive 

Remnants of War (The “CCW Protocol V”), Treaty Doc.

109-10 (2006)

Message from the President 

Transmitting LOS Convention

Message from the President of the United States 

transmitting the United Nations Convention on the Law of 

the Sea, with Annexes, and the Agreement Relating to the 

Implementation of Part XI of the United Nations 

Convention on the Law of the Sea, with Annex, Adopted at 

New York on July 28, 1994 and signed by the United 

States, Subject to Ratification on July 29, 1994, Treaty 

Doc. 103-09 (1994)

Message from the President 

Transmitting the 1925 Geneva Gas 

and Bacteriological Protocol

Message From the President of the United States 

Transmitting The Protocol for the Prohibition of the Use in 

War of Asphyxiating, Poisonous, or Other Gases, and of 

Bacteriological Methods of Warfare, Signed at Geneva 

June 17, 1925, Executive J (1970)

Message from the President 

Transmitting the 1954 Hague 

Cultural Property Convention

Message from the President of the United States 

Transmitting the Hague Convention for the Protection of 

Cultural Property in the Event of Armed Conflict (the 

Convention) and, for Accession, the Hague Protocol, 

Concluded on May 14, 1954, and Entered into Force on 

August 7, 1956 with Accompanying Report from the 

Department of State on the Convention and the Hague 

Protocol, Treaty Doc. 106-1 (1999)
xxv

Abbreviation Long Form

Message from the President 

Transmitting the CCW Amended 

Mines Protocol, Protocol III on 

Incendiary Weapons, and Protocol 

IV on Blinding Laser Weapons

Message From the President of the United States 

Transmitting Protocols to the 1980 Convention on 

Prohibitions or Restrictions on the use of Certain 

Conventional Weapons which may be deemed to be 

excessively injurious or to Have Indiscriminate effects: 

The Amended Protocol on Prohibitions or Restrictions on 

the Use of Mines, Booby-traps or other devices (Protocol II 

or the Amended Mines Protocol); The Protocol On 

Prohibitions or Restrictions on the Use of Incendiary 

Weapons (Protocol III or the Incendiary Weapons 

Protocol); and the Protocol on Blinding Laser Weapons 

(Protocol IV), Treaty Doc. 105-1 (1997)

Message from the President 

Transmitting the Chemical 

Weapons Convention

Message from the President of the United States 

Transmitting the Convention on the Prohibition of 

Development, Production, Stockpiling, and use of 

Chemical Weapons and on their Destruction, Opened for 

Signature and Signed by the United States at Paris on Jan. 

13, 1993, Treaty Doc. 103-21 (1993)

Message from the President 

Transmitting the VCLT

Message from the President of the United States 

Transmitting the Vienna Convention on the Law of Treaties 

Signed for the United States on April 24, 1970, Executive L 

(1971)

Moore’s Digest John Bassett Moore, A Digest of International Law (8 

Volumes, 1906)

Official Records of the CDDH Official Records of the Diplomatic Conference on the 

Reaffirmation and Development of International 

Humanitarian Law Applicable in Armed Conflicts, Geneva 

1974-1977 (16 Volumes, 1978)

Outer Space Treaty Treaty on Principles Governing the Activities of States in 

the Exploration and Use of Outer Space, Including the 

Moon and Other Celestial Bodies, Jan. 27, 1967, 610 

UNTS 205

Public Papers of the Presidents Public Papers of the Presidents of the United States 

(National Archives and Records Administration, Office of 

the Federal Register)

Regulations for the Execution of 

the 1954 Hague Cultural Property 

Convention

Regulations for the Execution of the Convention for the 

Protection of Cultural Property in the Event of Armed 

Conflict, Annexed to the Hague Cultural Property 

Convention, May 14, 1954, 249 UNTS 270

Roerich Pact Treaty between the United States of America and other 

American Republics on the Protection of Artistic and 

Scientific Institutions and Historic Monuments, Apr. 15, 

1935, 49 Stat. 3267

Rogers, Law on the Battlefield A.P.V. Rogers, Law on the Battlefield (1996)
xxvi

Abbreviation Long Form

Rome Statute Rome Statute of the International Criminal Court, July 17, 

1998, 2187 UNTS 90

Spaight, Air Power and War 

Rights

James Maloney Spaight, Air Power and War Rights (3rd 

ed., 1947)

Spaight, War Rights on Land James Maloney Spaight, War Rights on Land (1911)

Stat. United States Statutes at Large

Technical Annex to CCW 

Amended Mines Protocol

Technical Annex to Protocol (II) on Prohibitions or 

Restrictions on the Use of Mines, Booby-Traps and Other 

Devices, as Amended on May 3, 1996, Annexed to the 

Convention on Prohibitions or Restrictions on the Use of 

Certain Conventional Weapons Which May be Deemed to 

be Excessively Injurious or to Have Indiscriminate Effects, 

May 3, 1996, 2048 UNTS 144

Technical Annex to CCW Protocol 

V On Explosive Remnants of War

Technical Annex to Protocol (V) on Explosive Remnants of 

War, Annexed to the Convention on Prohibitions or 

Restrictions on the Use of Certain Conventional Weapons 

Which May be Deemed to be Excessively Injurious or to 

Have Indiscriminate Effects, Nov. 28, 2003, 2399 UNTS 

132

Trial of the Major War Criminals 

Before the IMT

Trial of the Major War Criminals Before the International 

Military Tribunal (42 Volumes, 1947-1949)

Trials of War Criminals Before the 

NMT

Trials of War Criminals Before the Nuernberg Military 

Tribunals Under Control Council Law No. 10 (15 Volumes, 

1949-1953)

Tucker, The Law of War and 

Neutrality at Sea

Robert W. Tucker, The Law of War and Neutrality at Sea

(U.S. Naval War College International Law Studies, 

Volume 50, 1955)

U.N. Charter Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031

U.N. Law Reports United Nations War Crimes Commission, Law Reports of 

the Trials of War Criminals (15 Volumes 1947-1949)

U.S. Response to ICRC CIHL 

Study

John B. Bellinger, III, Legal Adviser, Department of State, 

& William J. Haynes II, General Counsel, Department of 

Defense, Letter to Dr. Jacob Kellenberger, President, 

International Committee of the Red Cross, Regarding 

Customary International Humanitarian Law Study, Nov. 3, 

2006, reprinted in 46 International Legal Materials 514 

(2007).

U.S.C. United States Code (as of the date of publication of this 

manual)

UNTS United Nations Treaty Series

Vattel, The Law of Nations Emer de Vattel, The Law of Nations, or the Principles of 

the Law of Nature, Applied to the Conduct and Affairs of 

Nations and Sovereigns (translated by Charles Fenwick, 

1916)
xxvii

Abbreviation Long Form

VCLT Vienna Convention on the Law of Treaties, May 23, 1969, 

1155 UNTS 331

Von Glahn, The Occupation of 

Enemy Territory

Gerhard von Glahn, The Occupation of Enemy Territory

(1957)

Whiteman’s Digest Marjorie M. Whiteman, Assistant Legal Adviser, 

Department of State, Digest of International Law (15 

Volumes, 1963-1973)

Winthrop, Military Law & 

Precedents

William Winthrop, Military Law and Precedents (2nd. ed., 

1920)
1

I – General Background

Chapter Contents

1.1 Purpose and Scope of This Manual

1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual

1.3 Definition of the Law of War

1.4 Object and Nature of War

1.5 “War” as a Legal Concept

1.6 Law of War Distinguished From Certain Topics

1.7 Treaties

1.8 Customary International Law

1.9 Subsidiary Means of Determining International Law

1.10 Legal Force of the Law of War

1.11 Jus ad Bellum

1.1 PURPOSE AND SCOPE OF THIS MANUAL

1.1.1 Purpose. The purpose of this manual is to provide information on the law of war to 

DoD personnel responsible for implementing the law of war and executing military operations.1

 

This manual represents the legal views of the Department of Defense. This manual does 

not, however, preclude the Department from subsequently changing its interpretation of the law. 

Although the preparation of this manual has benefited from the participation of lawyers from the 

Department of State and the Department of Justice, this manual does not necessarily reflect the 

views of any other department or agency of the U.S. Government or the views of the U.S. 

Government as a whole.

This manual is not intended to, and does not, create any right or benefit, substantive or 

procedural, enforceable at law or in equity against the United States, its departments, agencies, or 

other entities, its officers or employees, or any other person.

1.1.2 Scope. This manual is not a definitive explanation of all law of war issues. This 

manual focuses on jus in bello – law relating to the conduct of hostilities and the protection of 

war victims.

This manual seeks to address the law of war that is applicable to the United States, 

including treaties to which the United States is a Party, and applicable customary international 

law. It provides legal rules, principles, and discussion, particularly with respect to DoD practice. 

Although the views of other States may be referenced in this manual, it is not a purpose of this 

manual to describe the views of other States, which may differ from views expressed in this 

manual.

This manual is not a substitute for the careful practice of law. As specific legal issues 

 1 Refer to § 1.3 (Definition of the Law of War).
2

arise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions, 

judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to the 

specific factual circumstances.

This manual is intended to be a description of the law as of the date of the manual’s 

promulgation. In this vein, much of this manual has been written in the past tense to help ensure 

that the text remains accurate, even after subsequent developments have occurred. Every effort 

has been made to ensure the accuracy of the manual, but it must be read in the light of later 

developments in the law.

1.2 USE OF FOOTNOTES, SOURCES, CROSS-REFERENCES, AND SIGNALS IN THIS MANUAL

1.2.1 Use of Footnotes in This Manual. This manual uses footnotes to provide sources or 

cross-references to other sections of the manual in order to clarify, elaborate on, or support the 

main text.

An effort has been made to avoid introducing discussion in the footnotes that addresses 

different propositions than those discussed in the main text. Although providing tangential 

information in footnotes is common in academic legal writing, this practice has been avoided to 

the extent possible for principally two reasons. First, it was desirable that this manual’s main 

text convey as much information as possible without the reader needing to read the footnotes. 

For example, it was desirable to avoid the possibility that a reader might misunderstand a legal 

rule addressed in the main text because a notable exception to that rule was addressed only in a

footnote accompanying the text. Second, tangential discussion on a given issue in footnotes 

would have made it much more difficult to keep the manual’s treatment of that issue consistent 

from section to section and to allow the reader to find all the relevant information about a single 

topic. Thus, tangential discussion in footnotes has been avoided, to the extent possible, in favor 

of cross-references to the appropriate section of the manual that addresses that topic in more 

detail.

1.2.2 Use of Sources in This Manual. This manual cites sources in the footnotes to 

support or elaborate upon propositions in the main text. These sources are cited in the footnotes 

to help practitioners research particular topics discussed in the main text. Reviewing the cited 

sources in their entirety may provide additional contextual information, especially where sources 

are only partially quoted in the footnotes. 

1.2.2.1 Selection of Sources. The sources cited in the footnotes have been chosen 

for a variety of reasons. For example, a source may contain a particularly helpful explanation or 

illustration. A source may have been chosen to illustrate U.S. practice or legal interpretation. A 

source may have been selected because its author was a particularly influential and respected 

international lawyer. For example, the 1956 Department of Army Field Manual 27-10, The Law 

of Land Warfare, has been a source of legal guidance for the U.S. armed forces for more than 50 

years, and was published in connection with the U.S. ratification of the 1949 Geneva 

Conventions. One of the persons who helped prepare the 1956 manual was Richard Baxter, a 

highly respected DoD lawyer, who later became a judge on the International Court of Justice.

Citation to a particular source should not be interpreted to mean that the cited source 
3

represents an official DoD position, or to be an endorsement of the source in its entirety. For 

example, parts of a source, such as an opinion by the International Court of Justice or a 

commentary published by the International Committee of the Red Cross, may reflect the DoD 

legal interpretation, while other parts of the source may not. Similarly, the citation of the 

jurisprudence of the Inter-American Commission on Human Rights should not be understood to 

indicate that the United States has accepted the competence of the Inter-American Commission 

on Human Rights to apply the law of war.2

1.2.2.2 Use of Older Sources. Older sources are sometimes cited: (1) because 

that source is particularly influential; (2) to demonstrate the origin of a legal proposition; or (3) 

to illustrate that a particular rule or formulation has a long history. 

The citation of an older source should not necessarily be interpreted as an endorsement 

that every aspect of that source remains current law. For example, the Lieber Code is a 

canonical law of war document for the United States, but parts of it no longer reflect current 

law.3 Moreover, an older document produced by a State does not necessarily reflect its current 

legal views. For example, the 1958 UK Manual, although a particularly influential law of war 

manual prepared by distinguished experts Hersch Lauterpacht and Gerald Draper, has been 

superseded by subsequent UK Manuals, which reflect more recent developments in the law for 

the United Kingdom (e.g., its ratification of AP I).

1.2.2.3 Quotes Provided From Sources. Quotes from sources are sometimes 

given in parentheticals within footnotes. These parentheticals are provided to help practitioners, 

such as by facilitating comparison between the main text of the manual and the language used in 

the sources. Every effort has been made to quote sources accurately. Practitioners, however, 

should verify quotations using the original source.

Certain formatting rules have been followed for quoted material. Two spaces have been 

placed after each period ending a sentence. Footnote numbers and carriage returns have been 

omitted from quoted text. Otherwise, quotes have not been changed unless noted through the use 

of ellipses, brackets, or parentheticals after the quotes indicating the changes made. 

1.2.2.4 Citation of Policies and Regulations. Policies and regulations of the U.S. 

Government or particular DoD components are sometimes cited as examples of past practice. 

This manual, however, seeks primarily to address the law and not to address applicable 

U.S. Government or DoD policies or regulations. Many policies and regulations are not 

addressed in this manual, and the discussion of some policies, where relevant, should not be 

understood to indicate that other pertinent policies or regulations do not exist. Moreover, 

policies and regulations are constantly updated, so practitioners are advised to ascertain whether 

 2 See, e.g., U.S. Additional Response to the Request for Precautionary Measures—Detention of Enemy Combatants 

at Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITED 

STATES PRACTICE IN INTERNATIONAL LAW 1008, 1009 (“Put simply, the Commission’s jurisdiction does not include 

the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained 

during armed conflict.”).

3 Refer to § 19.3 (Lieber Code).
4

more recent versions of cited policies and regulations have been issued.

In some cases, cancelled issuances or superseded policies or regulations are cited to show 

the past practice, and, at times, a series of issuances are cited to illustrate a continuity in practice.

Policies and regulations often exceed the requirements of applicable law, and the mere 

citation of a policy or regulation in this manual should not be understood to reflect the view that 

the policy or regulation’s requirements have been promulgated out of a sense of legal obligation 

for the purposes of assessing customary international law or otherwise intending to reflect legal 

requirements.

1.2.2.5 Citation Forms. An effort has been made to make citations forms 

consistent throughout the manual, and to provide enough information about each cited source to 

reflect its significance and to enable readers to find it.

4

 This manual has not strictly adhered to 

an established system of citation. Although certain citation systems were consulted, 

modifications were made as deemed appropriate for this type of resource, to make the citation 

forms straightforward and simple and relatively easy for readers to understand. In regard to 

abbreviations, for example, this manual generally does not abbreviate the names of academic 

journals. Moreover, it is hoped that the quotations from the cited sources that have been 

included in footnotes will help readers find the cited sources electronically.

1.2.3 Use of Cross-References in This Manual. This manual uses cross-references in the 

footnotes to point the reader to other sections of the manual containing relevant discussion of a 

particular topic. In particular, an effort has been made to use cross-references rather than to 

repeat discussion of a recurring issue or duplicate citation of legal sources. In sections in which 

a law of war rule is only mentioned tangentially or as an example, a cross-reference is used to 

direct the reader to the section of the manual in which a more in-depth discussion of that rule and 

supporting sources are provided.

5

Cross-references are linked to enable the reader to access the referenced section quickly.

 4 Cf. Richard A. Posner, The Bluebook Blues (reviewing Harvard Law Review Association, The Bluebook: A 

Uniform System of Citation (19th ed., 2010)), THE YALE LAW JOURNAL 850, 852 (2011) (“A system of citation 

forms has basically two functions: to provide enough information about a reference to give the reader a general idea 

of its significance and whether it’s worth looking up, and to enable the reader to find the reference if he decides that 

he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such a 

system: ‘to spare the writer or editor from having to think about citation form,’ ‘to economize on space and the 

reader's time,’ ‘to provide information to the reader,’ and ‘to minimize distraction.’”).

5 Refer to § 1.2.1 (Use of Footnotes in This Manual).
5

1.2.4 Use of Signals in This Manual. This manual uses signals to introduce the sources 

and cross-references in the footnotes. The table below identifies the signals used in this manual, 

describes their function, and provides examples of their use.

Signal Function and Examples of Use

[no 

signal]

Directly states the proposition

If a person joins a levée en masse, he or she may be held as a POW even if he or she 

actually took no part in fighting.

1

1 1958 UK MANUAL ¶100 (“If it is shown that they joined the levée en masse, but took 

no part in the defence, they may be held as prisoners of war.”).

Identifies the source of a quotation

As the Supreme Court has explained: “Lawful combatants are subject to capture and 

detention as prisoners of war by opposing military forces.”

2

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

Identifies an authority referred to in the text

There are additional provisions of the CCW Amended Mines Protocol addressing 

international exchanges of information and cooperation in this respect.3

3 CCW AMENDED MINES PROTOCOL art. 11.

See Clearly supports the proposition but does not directly state it

In addition, observers on military reconnaissance aircraft have not been regarded as 

acting clandestinely or under false pretenses.4

4 See HAGUE IV REG. art. 29 (“Persons sent in balloons for the purpose of carrying 

despatches and, generally, of maintaining communications between the different parts of 

an army or a territory” are not considered spies.).

See also Elaborates on the proposition

This means that a combatant’s “killing, wounding, or other warlike acts are not 

individual crimes or offenses.”

5

5 LIEBER CODE art. 57. See also WINTHROP, MILITARY LAW & PRECEDENTS 778 (“The 

State is represented in active war by its contending army, and the laws of war justify the 

killing or disabling of members of the one army by those of the other in battle or hostile 

operations.”).
6

Signal Function and Examples of Use

Cf. Supports the proposition by analogy, i.e., discusses a different proposition that is sufficiently 

similar to support the original proposition

A person must engage in acts of espionage in the zone of operations of a belligerent to be 

considered a spy. “Zone of operations” has been construed broadly to include areas 

supporting the war effort.6

6 Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat those 

agents of enemy armies who enter our territory, armed with explosives intended for the 

destruction of war industries and supplies, as any the less belligerent enemies than are 

agents similarly entering for the purpose of destroying fortified places or our Armed 

Forces.”).

Refer to Refers to another manual section that supports or elaborates on the proposition

Certain categories of persons are not members of the armed forces, but are nonetheless 

authorized to support the armed forces in the fighting: 

• persons authorized to accompany the armed forces, but who are not members 

thereof;

7

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

Compare Refers to another manual section that is analogous to the proposition

Persons authorized to accompany the armed forces who provide security against criminal 

elements generally would not be viewed as taking a direct part in hostilities (and do not 

forfeit their protection from being made the object of attack).269

269 Compare § 4.23.1 (Police as Civilians).

Consider Identifies a treaty that relates to the proposition but to which the United States is not a Party 

(e.g., AP I)

Under international law, every treaty in force is binding upon the Parties to it and must 

be performed by them in good faith.10

10 Consider VCLT art. 26 (“Every treaty in force is binding upon the parties to it and 

must be performed by them in good faith.”).
7

Signal Function and Examples of Use

For 

example,

Illustrates the proposition with an example drawn from historical practice

Adjusting the timing of an attack may reduce the risk of incidental harm. For example, 

attacking a military objective when civilians are less likely to be present may be 

appropriate.

11

11 For example, Jennifer O’Connor, General Counsel, Department of Defense, Remarks 

at New York University School of Law: Applying the Law of Targeting to the Modern 

Battlefield, Nov. 28, 2016 (“Given the facts of this specific situation, including the 

intelligence that the cash was being used to pay ISIL fighters and conduct terrorist 

operations, the targeting authority determined that the bulk cash was a legitimate military 

objective. The next step then for the targeting authority before approving the strike was 

to conduct a proportionality analysis. This bulk cash storage site happened to be in an 

area where civilians were often present—as you might expect from a building that used 

to be a civilian bank before ISIL turned it into a cash storage site. As a result of the high 

number of civilians in the area, the targeting authority took specific steps to minimize 

potential harm to civilians by ordering the attack to occur at a time when the potential for 

any civilian casualties was deemed to be the lowest.”); FINAL REPORT ON THE PERSIAN 

GULF WAR 100 (noting that during Operation DESERT STORM “attacks on known dual 

(i.e., military and civilian) use facilities normally were scheduled at night, because fewer 

people would be inside or on the streets outside.”).

e.g., Added to any of the other signals when the cited authority is one of several authorities (some 

of which remain uncited) that stand for the same proposition

International humanitarian law is an alternative term for the law of war that may be 

understood to have the same substantive meaning as the law of war.

12

12 See, e.g., Overview of the Amendment to the Convention on the Physical Protection of 

Nuclear Material, 6, Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, 

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING AMENDMENT 

TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL (THE 

“AMENDMENT”). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE 

PHYSICAL PROTECTION OF NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979,

ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE INTERNATIONAL ATOMIC ENERGY 

AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) (“(2) The United States of America 

understands that the term ‘international humanitarian law’ in Paragraph 5 of the 

Amendment (Article 2 of the Convention on the Physical Protection of Nuclear Material, 

as amended) has the same substantive meaning as the law of war.”).

1.3 DEFINITION OF THE LAW OF WAR

For the purposes of this manual, the law of war is that part of international law that 

regulates the resort to armed force; the conduct of hostilities and the protection of war victims in 

both international and non-international armed conflict; belligerent occupation; and the 
8

relationships between belligerent, neutral, and non-belligerent States.

6

 

For the purposes of this manual, the law of war comprises treaties and customary 

international law applicable to the United States.

7

1.3.1 Law of War – Notes on Terminology. 

1.3.1.1 Different Definitions of the Law of War. The law of war may be defined 

slightly differently in other publications. For example, DoD issuances have defined the law of 

war more narrowly than the definition discussed in this section (e.g., by omitting reference to 

that part of international law that regulates the resort to armed force).

8

1.3.1.2 Law of War Versus International Humanitarian Law and Law of Armed 

Conflict. The law of war is often called the law of armed conflict. Both terms can be found in 

DoD directives and training materials. International humanitarian law is an alternative term for 

the law of war that may be understood to have the same substantive meaning as the law of war.9

 

In other cases, international humanitarian law is understood more narrowly than the law of war

(e.g., by understanding international humanitarian law not to include the law of neutrality).

10

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

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

8 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, 14 (Aug. 19, 2014) (“law of war. The part of 

international law that regulates the conduct of hostilities and the protection of victims of armed conflict in both 

international and non-international armed conflict and occupation, and that prescribes the rights and duties of 

neutral, non-belligerent, and belligerent states. It is often called the ‘law of armed conflict’ or ‘international 

humanitarian law,’ and is specifically intended to address the circumstances of armed conflict. It encompasses all 

international law applicable to the conduct of military operations in armed conflicts that is binding on the United 

States or its individual citizens, including treaties and international agreements to which the United States is a party 

(e.g., the Geneva Conventions of 1949), and applicable customary international law.”); DOD DIRECTIVE 2311.01E, 

DoD Law of War Program, ¶3.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) (“Law of War. That part of 

international law that regulates the conduct of armed hostilities. It is often called the ‘law of armed conflict.’ The 

law of war encompasses all international law for the conduct of hostilities binding on the United States or its 

individual citizens, including treaties and international agreements to which the United States is a party, and 

applicable customary international law.”).

9 See, e.g., Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material, 6, 

Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, MESSAGE FROM THE PRESIDENT OF THE UNITED 

STATES TRANSMITTING AMENDMENT TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL 

(THE “AMENDMENT”). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE PHYSICAL PROTECTION OF 

NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979, ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE 

INTERNATIONAL ATOMIC ENERGY AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) (“(2) The United States of 

America understands that the term ‘international humanitarian law’ in Paragraph 5 of the Amendment (Article 2 of 

the Convention on the Physical Protection of Nuclear Material, as amended) has the same substantive meaning as 

the law of war.”); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAGING OF WAR: AN 

INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW 11 (International Committee of the Red Cross, 3rd ed., 

2001) (“The law of war nowadays is often referred to by a phrase better suited to express its object and purpose, 

such as ‘international humanitarian law applicable in armed conflict’ or ‘humanitarian law’ – we shall be using these 

terms interchangeably, as we do with ‘war’ and ‘armed conflict’.”).

10 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF 

HUMANITARIAN LAW IN ARMED CONFLICTS 9 (¶102) (1999) (“The term ‘international humanitarian law’ is of 

relatively recent origin and does not appear in the Geneva Conventions of 1949. ... International humanitarian law 
9

1.3.2 The Law of War’s Relationship to Other Bodies of Law. An issue that often 

confronts law of war practitioners is the relationship of the law of war to other bodies of law, 

especially when rules in those bodies of law may appear to conflict with rules reflected in the 

law of war. These apparent conflicts are often resolved by considering the principle that the law 

of war is the lex specialis governing armed conflict.11 How a law of war rule relates to a 

particular rule that is not grounded in the law of war may depend on the specific legal rule in 

question.

In general, the law of war may relate to other bodies of law through: (1) law of war rules

superseding rules in other bodies of law with respect to armed conflict; (2) construing the rules in 

other bodies of law to avoid conflict with law of war rules; (3) law of war rules informing the 

content of general standards in other bodies of law, should such standards be construed to apply 

to armed conflict; and (4) law of war treaties explicitly incorporating concepts from other bodies 

of law.

In some cases, it may be difficult to distinguish between these approaches, and different 

entities may apply different approaches to achieve the same result.12 Although there are different 

approaches and although the ultimate resolution may depend on the specific rules and context, 

the law of war, as the lex specialis of armed conflict, is the controlling body of law with regard 

to the conduct of hostilities and the protection of war victims.13

1.3.2.1 The Law of War as the Lex Specialis Governing Armed Conflict. The 

maxim lex specialis derogat legi generali means that “[a]s a rule the special rule overrides the 

 

thus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws, 

such as the law of neutrality, are not included since their primary purpose is not humanitarian.”).

11 See, e.g., Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the 

U.N. Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (noting that “the law of armed conflict is the 

controlling body of law with respect to the conduct of hostilities and the protection of war victims,”); U.S. 

Delegation to U.N. General Assembly Third Committee, Statement Clarifying Legal Points of Importance, 2004 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 331 (“Third, with respect to [preambular paragraph 

(‘PP’)] 4 and PP6, references to human rights law during armed conflict by necessity refer only to those provisions, 

if any, that may be applicable. As may be well known, it is the position of the United States Government that the 

Law of War is the lex specialis governing armed conflict.”) (amendment in original).

12 Report of the International Law Commission, Fifty-sixth session (3 May-4 June and 5 July-6 August 2004), U.N. 

Doc. A/59/10 ¶304 (2004) (“In introducing the part of the study concerning the function and scope of the lex 

specialis rule, the Chairman stressed several points. First, he emphasized that recourse to the lex specialis rule was 

an aspect of legal reasoning that was closely linked to the idea of international law as a legal system. The lex 

specialis maxim sought to harmonize conflicting standards through interpretation or establishment of definite 

relationships of priority between them. In fact, he said, it was often difficult to distinguish between these two 

aspects of the functioning of the technique: the interpretation of a special law in the light of general law, and the 

setting aside of the general law in view of the existence of a conflicting specific rule. ... The adoption of a systemic 

view was important precisely in order to avoid thinking of lex specialis in an overly formal or rigid manner. Its 

operation was always conditioned by its legal-systemic environment.”).

13 Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: 

Article 9, June 10, 2014, ¶20 (“While the United States acknowledges that difficult questions arise regarding the 

applicability of international human rights law in situations of armed conflict, the draft does not accord sufficient 

weight to the well-established principle that international humanitarian law, as the lex specialis of armed conflict, is 

the controlling body of law with regard to the conduct of hostilities and the protection of war victims.”).
10

general law.”14 The rule that is more specifically directed towards the action receives priority 

because it takes better account of the particular features of the context in which the law is to be 

applied, thus creating a more equitable result and better reflecting the intent of the authorities 

that have made the law.

15

The law of war has been developed with special consideration of the circumstances of 

war and the challenges inherent in its regulation by law. Thus, for example, the exigencies of 

armed conflict cannot justify violating the law of war.16 Moreover, lawmakers sometimes have 

considered peacetime rules appropriate to apply during armed conflict, and in certain of these 

cases, they have explicitly incorporated such concepts into the law of war.17

Thus, traditionally, the law of war has been described as the only “authoritative rules of 

action between hostile armies,” or as superseding ordinary law in the actual theater of military 

operations.18 Similarly, law of war treaties have been viewed as a clear example of a lex 

specialis in relation to treaties providing peacetime norms concerning the same subjects.19

1.3.2.2 Construing Other Laws to Avoid Conflict With the Law of War. Potential 

 14 Colleanu v. German State, German-Rumanian Mixed Arbitral Tribunal, Jan. 12, 1929, reprinted in H.

LAUTERPACHT, V INTERNATIONAL LAW REPORTS 438 (1929). See also GROTIUS, LAW OF WAR & PEACE 428 

(2.16.29.1) (“[A]mong agreements which are equal in respect to the qualities mentioned, that should be given 

preference which is most specific and approaches most nearly to the subject at hand; for special provisions are 

ordinarily more effective than those that are general”).

15 U.N. International Law Commission, Conclusions of the work of the Study Group on the Fragmentation of 

International Law: Difficulties arising from the Diversification and Expansion of International Law 2(7) (2006) 

(“Rationale of the principle. That special law has priority over general law is justified by the fact that such special 

law, being more concrete, often takes better account of the particular features of the context in which it is to be 

applied than any applicable general law. Its application may also often create a more equitable result and it may 

often better reflect the intent of the legal subjects.”).

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

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

18 See LIEBER CODE art. 40 (“There exists no law or body of authoritative rules of action between hostile armies, 

except that branch of the law of nature and nations which is called the law and usages of war on land.”). See also

WINTHROP, MILITARY LAW & PRECEDENTS 773-74 (“By the term LAW OF WAR is intended that branch of 

International Law which prescribes the rights and obligations of belligerents, or—more broadly—those principles 

and usages which, in time of war, define the status and relations not only of enemies—whether or not in arms—but 

also of persons under military government or martial law and persons simply resident or being upon the theatre of 

war, and which authorizes their trial and punishment when offenders. Unlike Military Law Proper, the Law of War 

in this country is not a formal written code, but consists mainly of general rules derived from International Law, 

supplemented by acts and orders of the military power and a few legislative provisions. In general it is quite 

independent of the ordinary law. ‘On the actual theatre of military operations,’ as is remarked by a learned judge, 

‘the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is there 

suspended, and military authority and force are substituted.’ Finding indeed its original authority in the war powers 

of Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise, 

substantially supersede for the time even the Constitution itself –as will be hereinafter indicated.”).

19 C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 BRITISH YEARBOOK OF INTERNATIONAL LAW 401, 446 

(1953) (“A clear illustration of [the lex specialis principle’s] applicability is afforded by instruments relating to the 

laws of war which, in the absence of evidence of a contrary intention or other special circumstances, must clearly be 

regarded as a leges speciales in relation to instruments laying down peace-time norms concerning the same 

subjects.”).
11

conflicts between the law of war and other law may be resolved by construing such other law to 

avoid conflict with law of war rules.

Underlying this approach is the fact that the law of war is firmly established in customary 

international law as a well-developed body of law that is separate from the principles of law 

generally applicable in peace.20 Lawmakers have been understood not to amend that welldeveloped body of law, absent affirmative evidence of an intention to do so.

21 In a similar 

fashion, for comparison, the GC deliberately excludes from its application the nationals of 

certain States in order to avoid creating complications or inconsistencies in procedures should 

both the GC and the law applicable to normal diplomatic representation apply.

22 

In some cases, treaties explicitly clarify that they do not affect States’ rights under the 

law of war.23 For example, the 1944 Chicago Convention on civil aviation explicitly provides 

that it does not affect the freedom of action of States during armed conflict.24 However, even 

when not explicitly stated, infringements on the law of war through international agreements that 

primarily address situations other than armed conflict are not to be presumed.25 For example, the 

 20 Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the United 

States of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 200-01 (Mar. 4, 

1991) (“The laws of armed conflict are firmly established in customary international law as a well-developed body 

of law separate from the principles of law generally applicable in times of peace.”).

21 See, e.g., Case Concerning Oil Platforms (Iran v. United States), Preliminary Objection, Judgment,1996 I.C.J. 

874, 876 (Dissenting Opinion of Vice-President Schwebel) (“It is plain that this is a Treaty which is essentially 

concerned with encouraging mutually beneficial trade and investments and closer economic intercourse on the basis 

of reciprocal equality of treatment. There is no suggestion of regulating the use of armed force by one party against 

the other. ... None of these core provisions of the Treaty suggests that attacks by armed forces of one party against 

what it treats as military objectives within the jurisdiction of the other party are within the reach of the Treaty. It is 

significant as well that the Treaty contains none of the treaty provisions which typically do bear on the international 

use of force.”); Written Statement of the Government of the United States of America, 34, Jun. 20, 1995, I.C.J., 

Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of 

Nuclear Weapons (“No international environmental instrument is expressly applicable in armed conflict. No such 

instrument expressly prohibits or regulates the use of nuclear weapons. Consequently, such an international 

environmental instrument could be applicable only by inference. Such an inference is not warranted because none 

of these instruments was negotiated with the intention that it would be applicable in armed conflict or to any use of 

nuclear weapons. Further, such an implication is not warranted by the textual interpretation of these instruments.”); 

Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the United 

States of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 207 (Mar. 4, 

1991) (“When, 14 years later, the ICAO Assembly drafted Article 3 bis of the Chicago Convention, discussed 

above, it was careful to include in the Article a statement that it ‘should not be interpreted as modifying in any way 

the rights and obligations of States set forth in the Charter of the United Nations;’ which included the inherent right 

of self-defense. The participants at the Montreal conference would have included a similar provision if they had 

intended the Montreal Convention to modify the laws of armed conflict, and particularly if they had intended to 

address actions by military forces in armed conflict. There is no such provision in the Montreal Convention.”).

22 Refer to § 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic Representation 

Exists).

23 See, e.g., Convention on the Protection of Submarine Cables, art. 15, Mar. 14, 1884, 24 STAT. 989, 997 (“It is 

understood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents.”).

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

25 Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the United 

States of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 203 (Mar. 4, 
12

LOS Convention has been interpreted not to impair a State’s rights during armed conflict, even 

though this principle is not explicitly stated in the treaty.26 In addition, the International 

Convention for the Suppression of the Financing of Terrorism has been understood not to 

preclude any State Party to the Convention from conducting any legitimate activity against any 

lawful target in accordance with the law of armed conflict.27

In addition to treaties, domestic statutes have also been construed not to violate 

international law, including the law of war, if any other construction remains possible.

28 Certain 

domestic statutes have been interpreted not to apply to situations addressed by the law of war 

because such intention was not made clear and unequivocal.29 

 

1991) (“Infringements on the laws of armed conflict through international agreements primarily addressing 

situations other than armed conflict are not to be presumed. There is no indication that the drafters of the Montreal 

Convention intended it to apply to military forces acting in armed conflict. If they had so intended, they would have 

had to address a myriad of issues relating to acts by military forces.”); The S.S. Wimbledon, (United Kingdom, 

France, Japan v. Germany), Judgment (MM. Anzilotti and Huber, dissenting), 1923 P.C.I.J. (series A) 1, 35, 36 (¶3) 

(“In this respect, it must be remembered that international conventions and more particularly those relating to 

commerce and communications are generally concluded having regard to normal peace conditions. If, as the result 

of a war, a neutral or belligerent State is faced with the necessity of taking extraordinary measures temporarily 

affecting the application of such conventions in order to protect its neutrality or for the purposes of national defence, 

it is entitled to do so even if no express reservations are made in the convention. This right possessed by all nations, 

which is based on generally accepted usage, cannot lose its raison d’être simply because it may in some cases have 

been abused;”).

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

27 United States, Statement on Ratification of International Convention for the Suppression of the Financing 

Terrorism, Jun. 26, 2002, 2185 UNTS 611, 612 (“(1) Exclusion of legitimate activities against lawful targets. The 

United States of America understands that nothing in the Convention precludes any State Party to the Convention 

from conducting any legitimate activity against any lawful target in accordance with the law of armed conflict.”).

28 The Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.) (“It has also been observed that an act of Congress 

ought never to be construed to violate the law of nations if any other possible construction remains, and 

consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted 

by the law of nations as understood in this country. These principles are believed to be correct, and they ought to be 

kept in view in construing the act now under consideration.”).

29 See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down 

Civil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 163-

64 (“Specifically, we believe that the section would not apply to the actions of United States military forces acting 

on behalf of the United States during a state of hostilities. As discussed above, § 32(b)(2) was intended to 

implement the United States’s obligations under the Montreal Convention. That Convention does not appear to 

apply to acts of armed forces that are otherwise governed by the laws of armed conflict. ... We do not think that 

§ 32(b)(2) should be construed to have the surprising and almost certainly unintended effect of criminalizing actions 

by military personnel that are lawful under international law and the laws of armed conflict. We note specifically 

that the application of § 32(b)(2) to acts of United States military personnel in a state of hostilities could readily lead

to absurdities: for example, it could mean in some circumstances that military personnel would not be able to 

engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution. Unless 

Congress by a clear and unequivocal statement declares otherwise, § 32(b)(2) should be construed to avoid such 

outcomes. Thus, we do not think the statute, as written, should apply to such incidents as the downing on July 3, 

1988 of Iran Air Flight 655 by the United States Navy cruiser Vincennes.”); France Biddle, Attorney General, 

Procurements by Commanding Generals in Foreign Theaters of Operations, Nov. 12, 1942, 40 OPINIONS OF THE 

ATTORNEY GENERAL 250, 253 (1949) (“The statutes in question do not expressly declare that their provisions are 

inapplicable to foreign theaters of operations. But there are conclusive reasons for inferring that the Congress did 

not intend them to apply to such theaters. The Supreme Court has long recognized that the power to conduct 
13

1.3.2.3 Using the Law of War to Determine the Content of General Standards if

Applied to Armed Conflict. Another way in which the law of war has been applied as lex 

specialis is to determine the content of a more general standard with respect to the situation of 

armed conflict. For example, the law of war has been used to inform the content of general 

authorizations to conduct military operations.30

As another example, to the extent that the concept of “due regard” for the safety of civil 

aircraft may be deemed to apply during armed conflict, what regard is due would be understood 

in terms of the requirements of the law of war.31 Similarly, to the extent that the concept of “due 

regard” for the rights of other States under the law of the sea may be deemed to apply during 

armed conflict, what regard is due would be understood in terms of the requirements of the law 

of war.32

Lastly, even where international courts or commissions have characterized human rights 

obligations as applicable during armed conflict, they generally have characterized the content of 

those obligations as determined by standards and tests drawn from the law of war.33 

1.3.2.4 Explicit Incorporation of Concepts From Other Bodies of Law Into the 

Law of War. In some cases, law of war treaties explicitly incorporate concepts from other bodies 

of law. For example, the peacetime property law concept of usufruct is made applicable to the 

duties of the Occupying States.34 Similarly, the GC explicitly applies a peacetime rule with 

respect to the nationals of the Occupying Power who, before the outbreak of hostilities, have 

sought refuge in the occupied territory.35 And as another example, Common Article 3 of the 

1949 Geneva Conventions incorporates by reference those judicial guarantees that are 

 

military campaigns includes power to procure needed supplies in theaters of operations by whatever methods are 

dictated by military necessity. Property may be taken summarily, even from a citizen, if military exigencies make 

its seizure reasonably appear to be necessary. It is unthinkable that the Congress attempted, by statutory restrictions, 

to abrogate this rule of military necessity, to handicap commanding generals waging war on foreign soil, to limit or 

encroach upon the power of the President as Commander in Chief to conduct, through his subordinates, military 

campaigns abroad.”) (internal citations omitted).

30 Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (“In light of these principles, it is of no moment that the 

AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the 

battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ 

Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.”). See 

also In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention 

Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (“The 

United States bases its detention authority as to such persons on the Authorization for the Use of Military Force 

(‘AUMF’), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily 

informed by principles of the laws of war.”).

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

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

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

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

35 Refer to § 11.11.7.2 (Protection of Nationals of the Occupying Power Who, Before the Outbreak of Hostilities, 

Have Sought Refuge in the Territory of the Occupied State).
14

recognized as indispensable by civilized peoples.36

1.3.3 Restrictive and Permissive Character of the Law of War. In certain respects, the law 

of war may be viewed as prohibitive; in other respects, the law of war may be viewed as 

permissive.

37 

1.3.3.1 Law of War as Prohibitive Law. The law of war that relates to the conduct 

of hostilities has generally been viewed as “prohibitive law,” in the sense that it forbids rather 

than authorizes certain uses of force.38 For example, the lawfulness of the use of a type of 

weapon does not depend on an absence of authorization, but, on the contrary, on whether the 

weapon is prohibited.39

One rationale for this view is that the rules binding upon States in treaties and customary 

law reflect restrictions that they have accepted, and that States are otherwise independent entities 

with freedom to act.40 Thus, the authority to take actions under the law of war would be viewed 

as emanating from the State’s rights as a sovereign entity rather than from any particular 

instrument of international law.

The prohibitive character of the law of war that relates to the conduct of hostilities is also 

consistent with the view that jus in bello applies to aggressors and defenders alike. The fact that 

an aggressor complies with jus in bello does not justify the legality of its military operations 

under jus ad bellum.

41

The lack of an express prohibition in treaty law, however, does not necessarily mean that 

 36 Refer to § 8.16 (Criminal Procedure and Punishment).

37 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 5 (“Throughout the pages of this study a basic fact will 

appear repeatedly: the laws of war, including the rules applicable to belligerent occupation, are in part permissive 

and in part prohibitive—a fact that has been overlooked frequently in treatments of the subject.”).

38 See Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR 

BOOK OF INTERNATIONAL LAW 323, 324 (1951) (“The law of war is, in the descriptive words of a war crimes 

tribunal, ‘prohibitive law’ in the sense that it forbids rather than authorizes certain manifestations of force.”) 

(quoting United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252); 

Gherebi v. Obama, 609 F. Supp. 2d 43, 65 (D.D.C. 2009) (rejecting as “exactly backwards” the “notion that the 

Geneva Conventions must specifically enable its signatories to act in a specific manner for a signatory to have the 

authority necessary to take such action.”); JOHN WESTLAKE, II INTERNATIONAL LAW 52 (1907) (“These rules are 

always restrictive, never permissive in any other sense than that of the absence of prohibition, for law can give no 

positive sanction to any act of force of which it cannot secure the employment on the side of justice alone, even if 

the particular act be not one which the law would prohibit both to the just and to the unjust if it could. Whenever 

therefore in speaking of the laws of war it is said that a belligerent may do this or that, it is always only the absence 

of prohibition that must be understood.”).

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

40 The S.S. Lotus, (France v. Turkey) (Judgment), 1927 P.C.I.J. (series A) No. 10, at 18 (“International law governs 

relations between independent States. The rules of law binding upon States therefore emanate from their own free 

will as expressed in conventions or by usages generally accepted as expressing principles of law and established in 

order to regulate the relations between these co-existing independent communities or with a view to the achievement 

of common aims. Restrictions upon the independence of States cannot therefore be presumed.”).

41 Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).
15

an action is lawful under jus in bello. When no specific rule applies, the principles of the law of 

war form the general guide for conduct during war.42

1.3.3.2 Law of War as Permissive Law. Although the law of war is generally 

viewed as “prohibitive law,” in some respects, especially in the context of domestic law, the law 

of war may be viewed as permissive or even as a source of authority.43

For example, the principle of military necessity in the customary law of war may be 

viewed as justifying or permitting certain acts.44 Similarly, under the law of belligerent 

occupation, the fact of occupation is the basis for the Occupying Power to exercise authority over 

the occupied territory.45 In addition, law of war treaties also sometimes recognize States’

authorities in war.46

1.3.4 Purposes of the Law of War. The main purposes of the law of war are:

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

• providing certain fundamental protections for persons who fall into the hands of the 

enemy, particularly prisoners of war, civilians, and military wounded, sick, and 

shipwrecked;48

• facilitating the restoration of peace;49

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

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

43 See, e.g., Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 581 (“It is preferable to capture suspected 

terrorists where feasible—among other reasons, so that we can gather valuable intelligence from them—but we must 

also recognize that there are instances where our government has the clear authority—and, I would argue, the 

responsibility—to defend the United States through the appropriate and lawful use of lethal force. This principle has 

long been established under both U.S. and international law. In response to the attacks perpetrated—and the 

continuing threat posed—by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to 

use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we 

are authorized to take action against enemy belligerents under international law. The Constitution empowers the 

President to protect the nation from any imminent threat of violent attack. And international law recognizes the 

inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.”).

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

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

46 See, e.g., GPW art. 21 (recognizing that “[t]he Detaining Power may subject prisoners of war to internment.”); 

HAGUE IV REG. art. 24 (recognizing that “[r]uses of war and the employment of measures necessary for obtaining 

information about the enemy and the country are considered permissible.”).

47 Refer to § 2.3 (Humanity).

48 Refer to § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power of 

a Party to the Conflict); § 8.2 (Humane Treatment of Detainees); § 9.5 (Humane Treatment and Basic Protections 

for POWs); § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

49 Refer to § 12.1.2.2 (Non-Hostile Relations to Facilitate the Restoration of Peace).
16

force;50 and

• preserving the professionalism and humanity of combatants.

51

1.4 OBJECT AND NATURE OF WAR

Understanding the object and nature of war is important in understanding and applying 

the law of war.52

1.4.1 Object of War. The object of war has been understood to be the submission of the 

enemy as quickly and efficiently as possible.53 The military defeat of the enemy in war is 

intended to advance political objectives.54 Even where those political objectives are limited, the 

object of war is nonetheless to ensure the submission of the enemy as quickly and efficiently as 

possible.55

 50 Refer to § 18.2.1 (Reinforcing Military Effectiveness).

51 Refer to § 2.6 (Honor).

52 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 1 (Oct. 23, 1962) (“An understanding of 

the laws of war necessitates an understanding of ‘war’ itself. It is the phenomenon of war which these laws are 

attempting in some manner to control.”). See also Adam Roberts, Land Warfare: From Hague to Nuremberg, in

MICHAEL HOWARD, GEORGE J. ANDREOPOULOUS, & MARK A. SHULMAN, THE LAWS OF WAR: CONSTRAINTS ON 

WARFARE IN THE WESTERN WORLD 117 (1994) (“The laws of war are strange not only in their subject matter, which 

to many people seems a contradiction in terms, but also in their methodology. There is little tradition of disciplined 

and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have 

often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have 

been at assessing the performance of existing accords or at generalizing about the circumstances in which they can 

or cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.”).

53 See 1940 RULES OF LAND WARFARE ¶22 (“The object of war is to bring about the complete submission of the 

enemy as soon as possible by means of regulated violence.”); 1914 RULES OF LAND WARFARE ¶10 (same).

54 George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: Development 

of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 880 (Jun. 18, 1973) (“What we have seen is 

all too clearly a general acceptance of the view that modern war is aimed not merely at the enemy’s military forces 

but at the enemy’s willingness and ability to pursue its war aims. Thus, in the Second World War the enemy’s will 

to fight and his capacity to produce weapons were primary targets; and saturation bombing, blockade of food 

supplies, and indiscriminate terror weapons such as the German V bombs, were all brought to bear on those targets. 

In Viet-Nam political, rather than military, objectives were even more dominant. Both sides had as their goal not 

the destruction of the other’s military forces but the destruction of the will to continue the struggle.”); United States 

v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 485 (“War is the 

exerting of violence by one state or politically organized body against another. In other words, it is the 

implementation of a political policy by means of violence.”); CARL VON CLAUSEWITZ, ON WAR 87 (1989) (“We see, 

therefore, that war is not merely an act of policy but a true political instrument, a continuation of political 

intercourse, carried on with other means. What remains peculiar to war is simply the peculiar nature of its means. 

War in general, and the commander in any specific instance, is entitled to require that the trend and designs of policy 

shall not be inconsistent with these means. That, of course, is no small demand; but however much it may affect 

political aims in a given case, it will never do more than modify them. The political object is the goal, war is the 

means of reaching it, and means can never be considered in isolation from their purpose.”).

55 For example, General Colin L. Powell, Chairman of the Joint Chiefs of Staff, U.S. Forces: Challenges Ahead, 71 

FOREIGN AFFAIRS 32, 37 (1992) (explaining that despite the limited political objectives of the 1991 Gulf War, the 

United States “did use overwhelming force quickly and decisively.”).
17

The object of war informs the principle of military necessity and what uses of force may 

be justified in war.

56 Nevertheless, the law of war limits what uses of force the object of war 

may justify.

57

1.4.2 Nature of War. 

1.4.2.1 Nature of War – Violence and Suffering. War has been described as a 

violent clash of interests characterized by the use of force.58 The fact that violence is an essential 

element of war has been viewed as important in understanding the nature of war.59 The violent 

nature of war has also meant that suffering has been an unfortunate and tragic, but unavoidable 

consequence of war.60

Law of war treaties such as the Hague and Geneva Conventions have been negotiated 

with the understanding that suffering and destruction are unavoidably part of war.

61 But these 

 56 Refer to § 2.2.1 (Military Necessity as a Justification); § 2.2.3.1 (Consideration of the Broader Imperatives of 

Winning the War).

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

58 DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-1 (¶1-1) (Dec. 2006) (“Insurgency and 

counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, 

and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; 

however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. 

Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving 

victory still depends on a group’s ability to mobilize support for its political interests (often religiously or ethnically 

based) and to generate enough violence to achieve political consequences. Means to achieve these goals are not 

limited to conventional forces employed by nation-states.”); MARINE CORPS DOCTRINAL PUBLICATION 1,

Warfighting, 3 (Jun. 20, 1997) (explaining that war is “a violent clash of interests between or among organized 

groups characterized by the use of military force.”).

59 MARINE CORPS DOCTRINAL PUBLICATION 1, Warfighting, 14 (Jun. 20, 1997) (“War is among the greatest horrors 

known to humanity; it should never be romanticized. The means of war is force, applied in the form of organized 

violence. It is through the use of violence, or a credible threat of violence, that we compel our enemy to do our will. 

Violence is an essential element of war, and its immediate result is bloodshed, destruction, and suffering. While the 

magnitude of violence may vary with the object and means of war, the violent essence of war will never change. 

Any study of war that neglects this basic truth is misleading and incomplete.”).

60 For example, Friedrich II, Letter to Lord Marischal, Nov. 23, 1758 reprinted in THOMAS CARLYLE, V HISTORY OF 

FRIEDERICH II OF PRUSSIA: CALLED FREDERICK THE GREAT 386 (1865) (“Our Campaign is over; and there has 

nothing come of it on one side or the other, but the loss of a great many worthy people, the misery of a great many 

poor soldiers crippled forever, the ruin of some Provinces, the ravage, pillage and conflagration of some flourishing 

Towns. Exploits these, which make humanity shudder: ... .”).

61 Edward R. Cummings, Acting Assistant Legal Adviser for Politico-Military Affairs, Remarks at Symposium at 

Brooklyn Law School, Sept. 25, 1982, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL 

LAW 1981-88 3421, 3422 (“The Conventions referred to today, such as the Hague and Geneva Conventions, are 

important ones and are strongly supported by the United States. They have helped reduce the suffering caused by 

wars. But one should not ask the impossible of these agreements. They were not intended to make war ‘humane’ or 

to ban war, or to make wars more difficult to fight. They were modestly intended to reduce the inhumanity and 

barbarity of war when militarily possible. Anyone who has read the negotiating records of these old agreements will 

note that they were largely negotiated by the military. In fact, the first agreement of this kind, the St. Petersburg 

Declaration, was agreed to by a military commission. Unrealistic provisions which just would not be accepted or 

respected in battle were not favored.”).
18

treaties and the principle of humanity seek to reduce unnecessary suffering and destruction.62

1.4.2.2 Nature of War – Limited and Unreliable Information – “Fog of War”. 

During war, information is often limited and unreliable.63 The uncertainty of information in war 

results from the chaotic nature of combat and from the opposing sides’ efforts to deceive one 

another, which generally is not prohibited by the law of war.

64

The limited and unreliable nature of information available during war has influenced the 

development of the law of war. For example, it affects how the principle of military necessity is 

applied.

65 The limited and unreliable nature of information available during war also is 

recognized in the law of war’s standards for how persons are to assess information.

66

1.5 “WAR” AS A LEGAL CONCEPT

“War” is sometimes used as a legal concept, i.e., the application or operation of a legal 

rule may depend on the existence of a “war,” “armed conflict,” or “hostilities.” As a legal 

concept, “war” has traditionally been viewed as a condition in which a State is prosecuting its 

rights by military force, usually against another State. However, the precise definition of “war”

often depends on the specific legal context in which it is used.

1.5.1 Traditional Conception of War Under International Law. As international law 

began to regulate “war,” “hostilities,” and “armed conflict,” it became necessary to determine 

what “war” is for the purpose of triggering those legal obligations.67

As a legal concept, war has usually been described as a condition or state that applies 

more broadly than only the mere employment of force or the mere commission of acts of 

 62 Refer to § 2.3 (Humanity).

63 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1297 

(“The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the 

enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the 

uncertainty of his intentions.”); CARL VON CLAUSEWITZ, ON WAR 140 (1989) (“the general unreliability of all 

information presents a special problem in war: all action takes place so to speak, in a kind of twilight, which like 

fog or moonlight, often tends to make things grotesque and larger than they really are.”).

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

65 Refer to § 2.2.3 (Applying Military Necessity).

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

67 See, e.g., Arnold D. McNair, The Legal Meaning of War, and the Relation of War to Reprisals, 11 TRANSACTIONS 

OF THE GROTIUS SOCIETY 29, 30 (1925) (“There exist many treaties and other international conventions under which 

important obligations arise upon the occurrence of a state of ‘war,’ and as regards which, therefore, either because 

the term ‘war’ or some other term connoting war, such as ‘neutrality,’ is used, it becomes essential to know whether 

or not a state of war exists at a given point of time. Thus most of the Hague Conventions only come into operation 

once a state of war has arisen—for instance, those relating to the Laws and Customs of War on Land, to the Rights 

and Duties of Neutrals in Land and Maritime War respectively, to the Bombardment of Ports, Towns and Villages 

by Naval Forces, and to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.”).
19

violence.

68

When treated as a legal concept, “war” has been associated with a State’s use of force to 

vindicate its rights (principally, its inherent right of self-defense) under international law.69

Traditionally, war has often been described as a legal condition between two or more 

States.70 However, certain law of war rules apply to non-international armed conflicts (such as 

intrastate conflicts or conflicts between a State and a non-State armed group).71

1.5.2 Different Definitions of “War” for Different Legal Purposes. There is no single 

legal definition of “war,” “hostilities,” or “armed conflict,” and the definition of these terms has 

varied in both domestic and international law.

In domestic law, “war,” “hostilities,” and “armed conflict” have been interpreted 

differently depending on the specific legal context at issue.

72 For example, under the 

 68 1956 FM 27-10 (Change No. 1 1976) ¶8 (“While it is usually accompanied by the commission of acts of violence, 

a state of war may exist prior to or subsequent to the use of force.”); VII MOORE’S DIGEST 153 (“Much confusion 

may be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but the 

existence of the legal condition of things in which rights are or may be prosecuted by force.”); GROTIUS, LAW OF 

WAR & PEACE 33 (1.1.2.1) (“war is the condition of those contending by force”).

69 SPAIGHT, AIR POWER AND WAR RIGHTS 2 (“War, after all, is only a means to an end. It is a way of settling an 

international difference which diplomacy has failed to adjust and which is not susceptible of treatment by the other 

means of pacific settlement, such as inquiry commissions, arbitration, or submission to the Permanent Court of The 

Hague. When all else fails, there is no way in which a nation can assert its rights save by going to war. War is the 

means by which it vindicates a vital right threatened or infringed by the claim or act of another State. Its object is to 

cause the other State to desist from the action or abandon the claim which is the cause of offence. In other words, a 

war is fought in order to bring about a change of mind in another State.”); The Prize Cases, 67 U.S. 635, 666 (1863) 

(“War has been well defined to be, ‘That state in which a nation prosecutes its right by force.’”) (quoting EMERICH 

DE VATTEL, DROIT DE GENS (LAW OF NATIONS) (1760)); LIEBER CODE art. 30 (“Ever since the formation and 

coexistence of modern nations, and ever since wars have become great national wars, war has come to be 

acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against 

wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law 

of war imposes many limitations and restrictions on principles of justice, faith, and honor.”).

70 1956 FM 27-10 (Change No. 1 1976) ¶8a (“War may be defined as a legal condition of armed hostility between 

States. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to or 

subsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20). 

Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise of 

armed force pursuant to a recommendation, decision, or call by the United Nations, in the exercise of the inherent 

right of individual or collective self-defense against armed attack, or in the performance of enforcement measures 

through a regional arrangement, or otherwise, in conformity with appropriate provisions of the United Nations 

Charter.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 202 (§54) (“War is a contention between two or 

more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of 

peace as the victor pleases.”); LIEBER CODE art. 20 (“Public war is a state of armed hostility between sovereign 

nations or governments. It is a law and requisite of civilized existence that men live in political, continuous 

societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and 

retrograde together, in peace and in war.”).

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

72 See, e.g., Fred K. Green, The Concept of “War” and the Concept of “Combatant” in Modern Conflicts, 10 

MILITARY LAW AND LAW OF WAR REVIEW 267, 269 (1971) (“[I]n US municipal law, the existence of “war” and its 

beginning and termination is a question of objective fact determined for different purposes by different agencies of 
20

Constitution, Congress has the power to “declare war.”73 Thus, “war” might be interpreted to 

determine whether a military operation constitutes “war” in this sense.

74 Similarly, the War 

Powers Resolution states certain requirements that are triggered when U.S. forces are introduced 

into “hostilities.”75 Other statutes may require a determination that conduct has occurred 

“[w]hen the United States is at war” or during “time of war.”76 

Under international law, “war,” “hostilities,” and “armed conflict” may also be 

interpreted with different purposes in mind.77 A state of “war” can affect what duties States that 

are not participating in the conflict have under the law of neutrality.78 A state of “war” can affect 

whether peacetime treaties between two States continue to apply. Most importantly for the 

purposes of this manual, the terms “war” and “armed conflict” are used to describe when jus in 

bello rules apply.

79

1.6 LAW OF WAR DISTINGUISHED FROM CERTAIN TOPICS

The law of war may be distinguished from the following topics: (1) operational law; (2) 

arms control; (3) human rights treaties; (4) the Just War Tradition; (5) rules of engagement; and 

(6) the Code of Conduct for U.S. Armed Forces.

 the sovereign. There has been no apparent effort to coordinate federal law so as to permit establishment of fixed 

criteria that would be identified and applicable for all purposes. The tremendous variations in result that this 

situation produces renders meaningless any attempt to generalize with respect to established criteria.”).

73 U.S. CONSTITUTION art. I, § 8.

74 Caroline D. Krass, Principal Deputy Assistant Attorney General, Authority to use Military Force in Libya, 8 (Apr. 

1, 2011) (“[T]he historical practice of presidential military action without congressional approval precludes any 

suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the 

President initiates. In our view, determining whether a particular planned engagement constitutes a ‘war’ for 

constitutional purposes instead requires a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of 

the planned military operations. Haiti Deployment, 18 Op. O.L.C. at 179.”).

75 See 50 U.S.C. § 1543(a)(1) (“In the absence of a declaration of war, in any case in which United States Armed 

Forces are introduced— (1) into hostilities or into situations where imminent involvement in hostilities is clearly 

indicated by the circumstances; ... the President shall submit within 48 hours to the Speaker of the House of 

Representatives and to the President pro tempore of the Senate a report, in writing, setting forth ... .”).

76 See, e.g., 10 U.S.C. § 843(f) (“When the United States is at war, the running of any statute of limitations 

applicable to [certain offenses]... is suspended until three years after the termination of hostilities as proclaimed by 

the President or by a joint resolution of Congress.”); 10 U.S.C. § 906 (“Any person who in time of war is found 

lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any 

of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or 

institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a 

general court-martial or by a military commission and on conviction shall be punished by death. This section does 

not apply to a military commission established under chapter 47A of this title.”).

77 JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 312 (1954) (“[T]he question ‘War or No War?’ 

may have to be answered differently according to the purposes for which an answer is sought. One answer, for 

example, may be indicated for the purposes of the rules for the mitigation of suffering; another for those governing 

war supplies to belligerents from neutral governments, or governing blockade or contraband.”).

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

79 Refer to § 3.4 (When Jus in Bello Rules Apply).
21

1.6.1 Operational Law. The law of war is an important part of, but not the entirety of,

operational law. Operational law consists of that body of domestic, foreign, and international 

law that specifically pertains to the activities of military forces across the entire conflict 

spectrum. Operational law includes diverse legal disciplines, such as military justice, 

administrative and civil law, legal assistance, claims, procurement law, national security law, 

fiscal law, and the law of war.80 

1.6.2 Arms Control. Arms control is a broad term that includes a variety of efforts to 

reduce the numbers, types, performance characteristics, proliferation, testing, or other aspects of 

certain categories of weapons. Arms control usually proceeds through bilateral or multilateral 

treaties. Arms control can also include non-binding political commitments, as well as reciprocal 

unilateral statements of intention or policy. The overall goals of arms control are to reduce: (1) 

the likelihood of war; (2) the consequences of war, should it occur; and (3) the costs of preparing 

for war.

Arms control is closely related to other concepts. For example, “non-proliferation” refers 

specifically to efforts to restrict the spread of weapons (in particular, weapons of mass 

destruction). “Disarmament” refers to efforts to eliminate entirely, rather than to restrict, a 

particular category of weapon. And sometimes States accept “confidence-building measures” (or 

confidence, security, and transparency-building measures) that do not directly reduce the 

quantity or quality of armaments, but rather increase States’ certainty that ambiguous activities 

by other States are not secret actions in violation of arms control obligations.

Arms control and the law of war frequently overlap in treaties. For example, the CCW 

Protocol IV on Blinding Laser Weapons has both arms control and law of war provisions.

81 

Similarly, the Chemical Weapons Convention prohibits, inter alia, the development and 

stockpiling of chemical weapons, but it is also directly relevant to the law of war because it 

prohibits the use of chemical weapons in all circumstances.

82 

Human Rights Treaties.

83 1.6.3 Human rights treaties address primarily the obligations 

 80 THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK JA 422 1-1 (1997) 

(“[Operational law is] [t]hat body of domestic, foreign, and international law that impacts specifically upon the 

activities of U.S. Forces across the entire operational spectrum. Operational law is the essence of the military legal 

practice. It is a collection of diverse legal and military skills, focused on military operations. It includes military 

justice, administrative and civil law, legal assistance, claims, procurement law, environmental law, national security 

law, fiscal law, international law, host nations law, and the law of war. In short, operational law is a unique blend of 

every source of law that has application within the operational context. ... Because the definition of operational law 

is so broad, ample statutory and regulatory references serve to establish the substance of the practice.”).

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

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

83 This section focuses on human rights treaties and not other sources of international human rights law. See, e.g., 

Catherine Amirfar, Counselor for International Law, Department of State, Statement at 53rd Session of the U.N. 

Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“For example, the prohibition against torture is 

customary international law binding on all nations everywhere, at all times.”); U.N. International Law Commission, 

State responsibility: Comments and observations received from Governments, U.N. Doc. A/CN.4/488, 133 (Mar. 

25, 1998) (“United States of America Subparagraph (e) [which would reflect a prohibition against conduct by way 

of countermeasures in contravention of a peremptory norm of general international law] similarly does not provide 

useful guidance in determining whether a countermeasure would be permissible. Just as there is little agreement 
22

of governments with respect to the rights of individuals, including their own nationals.84 For 

example, governments must refrain from subjecting individuals to arbitrary detention, to 

arbitrary deprivation of life, or to cruel, inhuman, or degrading treatment or punishment.

85

As a general matter, human rights treaties have been described as primarily applicable to 

the relationship between a State and individuals in peacetime.

86 Some human rights treaties also 

provide for derogation from certain provisions in emergency situations.87

Law of war treaties have been described as chiefly concerned with the conditions 

particular to armed conflict and the relationship between a State and nationals of the enemy 

State.

88 Law of war treaties generally do not provide for derogation because necessity is not a 

 

with respect to ‘basic’ human rights and political and economic ‘coercion’, the content of peremptory norms is 

difficult to determine outside the areas of genocide, slavery and torture.”).

84 See, e.g., Jimmy Carter, United Nations Remarks on Signing International Covenants on Human Rights, 1977-II

PUBLIC PAPERS OF THE PRESIDENTS 1734 (“The Covenant on Civil and Political Rights concerns what governments 

must not do to their people, and the Covenant on Economic, Social and Cultural Rights concerns what governments 

must do for their people. By ratifying the Covenant on Civil and Political Rights, a government pledges, as a matter 

of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading 

treatment. It recognizes the right of every person to freedom of thought, freedom of conscience, freedom of 

religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, 

and the right to emigrate from that country.”).

85 International Covenant on Civil and Political Rights, art. 9(1), Dec. 19, 1966, 999 UNTS 171, 175 (“Everyone has 

the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be 

deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”); 

International Covenant on Civil and Political Rights, art. 6(1), Dec. 19, 1966, 999 UNTS 171, 174 (“Every human 

being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his 

life.”); International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 UNTS 171, 175 (“No one 

shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall 

be subjected without his free consent to medical or scientific experimentation.”).

86 See, e.g., JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 15 (1975) (“Admittedly, 

human rights embody more general principles while the law of armed conflicts is of a specific and exceptional 

nature, coming as it does into operation at the very time when the exercise of human rights is prevented or restricted 

by war. But the two legal systems are fundamentally different, for humanitarian law is valid only in the case of an 

armed conflict while human rights are essentially applicable in peacetime, and contain derogation clauses in case of 

conflict. Moreover, human rights govern relations between the State and its own nationals, the law of war those 

between the State and enemy nationals.”).

87 See, e.g., International Covenant on Civil and Political Rights, art. 4(1), Dec. 19, 1966, 999 UNTS 171, 174 (“In 

time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, 

the States Parties to the present Covenant may take measures derogating from their obligations under the present 

Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not 

inconsistent with their other obligations under international law and do not involve discrimination solely on the 

ground of race, colour, sex, language, religion or social origin.”).

88 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF 

HUMANITARIAN LAW IN ARMED CONFLICTS 9 (¶102) (1999) (“Human rights law is designed to operate primarily in 

normal peacetime conditions, and within the framework of the legal relationship between a state and its citizens. 

International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict and 

the relationship between a state and the citizens of its adversary, a relationship otherwise based upon power rather 

than law.”).
23

basis for derogating from law of war rules.

89

1.6.3.1 Relationship Between Human Rights Treaties and the Law of War. In 

some circumstances, the rules in the law of war and the rules in human rights treaties may appear 

to conflict; these apparent conflicts may be resolved by the principle that the law of war is the lex 

specialis during situations of armed conflict, and, as such, is the controlling body of law with 

regard to the conduct of hostilities and the protection of war victims.

90

For example, the right to challenge the lawfulness of an arrest before a court provided in 

Article 9 of the International Covenant on Civil and Political Rights (ICCPR) would appear to 

conflict with the authority under the law of war to detain certain persons without judicial process

or criminal charge.

91 However, the United States has understood Article 9 of the ICCPR not to 

affect a State’s authorities under the law of war, including a State’s authority in both 

international and non-international armed conflicts to detain enemy combatants until the end of 

hostilities.92 Some international courts or commissions have interpreted the rights conveyed by 

human rights treaties in light of the rules of the law of war, as the applicable lex specialis, when 

assessing situations in armed conflict.

93

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

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

91 International Covenant on Civil and Political Rights, art. 9(4), Dec. 19, 1966, 999 UNTS 171, 176 (“Anyone who 

is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that 

court may decide without delay on the lawfulness of his detention and order his release if the detention is not 

lawful.”).

92 Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: 

Article 9, ¶22, Jun. 10, 2014 (“Given that international humanitarian law is the controlling body of law in armed 

conflict with regard to the conduct of hostilities and the protection of war victims, the United States does not 

interpret references to ‘detainees’ and ‘detention’ in several paragraphs to refer to government action in the context 

of and associated with an armed conflict. For example, paragraph 15 incorrectly implies that the detention of enemy 

combatants in the context of a non-international armed conflict ‘would normally amount to arbitrary detention as 

other effective measures addressing the threat, including the criminal justice system, would be available.’ On the 

contrary, in both international and non-international armed conflicts, a State may detain enemy combatants 

consistent with the law of armed conflict until the end of hostilities. Similarly, to the extent paragraphs 15 and 66 

are intended to address law-of-war detention in situations of armed conflict, it would be incorrect to state that there 

is a ‘right to take proceedings before a court to enable the court to decide without delay on the lawfulness of 

detention’ in all cases. In addition, to the extent the discussion of an individual right to compensation under Article 

9 in paragraphs 49-52 is intended to extend to individuals detained in the context of an armed conflict, as a matter of 

international law, the rules governing available remedies for unlawful detention in the context of an armed conflict 

would be drawn from international humanitarian law.”).

93 Coard, et al. v. United States, Inter-American Commission on Human Rights, Organization of American States, 

Case 10.951, Report 109/99, ¶42 (Sept. 29, 1999) (“[I]n a situation of armed conflict, the test for assessing the 

observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that 

applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the 

applicable lex specialis.”); Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights, 

Organization of American States, Case 11.137, OEA/Ser.L/V/II.98, ¶161 (Nov. 18, 1997) (“[T]he Commission must 

necessarily look to and apply definitional standards and relevant rules of humanitarian law as sources of 

authoritative guidance in its resolution of this and other kinds of claims alleging violations of the American 

Convention in combat situations.”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 

I.C.J. 226, 240 (¶25) (“In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. 
24

On the other hand, during armed conflict, human rights treaties would clearly be 

controlling with respect to matters that are within their scope of application and that are not 

addressed by the law of war. For example, a time of war does not suspend the operation of the 

ICCPR with respect to matters within its scope of application. Therefore, as an illustration,

participation in a war would in no way excuse a State Party to the ICCPR from respecting and 

ensuring the right and opportunity of every citizen to vote and to be elected at genuine periodic 

elections.94

1.6.3.2 Different Views on the Applicability of Human Rights Treaties. In 

conducting operations with coalition partners, it may be important to consider that some States 

may have different perspectives on the applicability of human rights treaties. Such differences 

may result from different legal interpretations or from the fact that the other State is a Party to 

different human rights treaties than the United States. For example, the European Court of 

Human Rights – as well as some European States – have construed certain obligations under the 

European Convention on Human Rights (ECHR) as applicable to their military forces abroad 

during occupation.

95

1.6.3.3 International Covenant on Civil and Political Rights (ICCPR). The 

United States is a Party to the International Covenant on Civil and Political Rights (ICCPR).

The ICCPR creates obligations for a State with respect to persons within its territory and 

subject to its jurisdiction.

96 The United States has long interpreted the ICCPR not to apply 

abroad.

97 The inclusion of the reference to “within its territory” in Article 2(1) of the ICCPR 

 

The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex 

specialis, namely, the law applicable to armed conflict which is designed to regulate the conduct of hostilities.”).

94 Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights 

Concerning the International Covenant on Civil and Political Rights, Dec. 30, 2011, ¶506 (“With respect to the 

application of the Covenant and the international law of armed conflict (also referred to as international 

humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of 

war.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of 

application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no 

way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right 

and opportunity of every citizen to vote and to be elected at genuine periodic elections.”).

95 Case of Al-Skeini and Others v. The United Kingdom, ECtHR, 55721/07, ¶149 (Jul. 7, 2011) (“It can be seen, 

therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim 

Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the 

public powers normally to be exercised by a sovereign government. In particular the United Kingdom assumed 

authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances 

the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during 

the period in question, exercised authority and control over individuals killed in the course of such security 

operations so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of 

Article 1 of the (ECHR).”).

96 International Covenant on Civil and Political Rights, art. 2(1), Dec. 19, 1966, 999 UNTS 171, 173 (“Each State 

Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to 

its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, 

sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”).

97 See, e.g., U.N. Human Rights Committee, Summary Record of the 1405th Meeting, U.N. Doc. CCPR/C/SR.1405 

6-7 (¶20) (Apr. 24, 1995) (“Klein had asked whether the United States took the view that the Covenant did not apply 
25

was adopted as a result of a proposal made by U.S. delegate Eleanor Roosevelt – specifically to 

ensure that a State Party’s obligations would not apply to persons outside its territories, such as 

in occupied territory and leased territory.98

1.6.3.4 Convention Against Torture. The United States is a Party to the 

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

99 

The Convention against Torture was not intended to supersede the prohibitions against 

torture already contained in customary international law and the 1949 Geneva Conventions or its 

Additional Protocols.100 The law of war is the controlling body of law with respect to the 

conduct of hostilities and the protection of war victims. Nevertheless, a time of war does not 

suspend operation of the Convention Against Torture. The Convention Against Torture

continues to apply even when a State is engaged in armed conflict.101 For example, a state of 

war could not justify a State’s torture of individuals during armed conflict.102

In addition, where the text of the Convention Against Torture provides that obligations 

apply to a State Party in “any territory under its jurisdiction,” such obligations, including the 

obligations in Articles 2 and 16 to prevent torture and cruel, inhuman, or degrading treatment or 

punishment, extend to certain areas beyond the sovereign territory of the State Party, and more 

specifically to “all places that the State Party controls as a governmental authority.”103 

 

to government actions outside the United States. The Covenant was not regarded as having extraterritorial 

application. In general, where the scope of application of a treaty was not specified, it was presumed to apply only 

within a party’s territory. Article 2 of the Covenant expressly stated that each State party undertook to respect and 

ensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. That dual 

requirement restricted the scope of the Covenant to persons under United States jurisdiction and within United 

States territory. During the negotiating history, the words ‘within its territory’ had been debated and were added by 

vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.”).

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

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

1465 UNTS 85.

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

101 Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N. 

Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“Although the law of armed conflict is the 

controlling body of law with respect to the conduct of hostilities and the protection of war victims, a time of war 

does not suspend operation of the Convention Against Torture, which continues to apply even when a State is 

engaged in armed conflict. The obligations to prevent torture and cruel, inhuman, and degrading treatment and 

punishment in the Convention remain applicable in times of armed conflict and are reinforced by complementary 

prohibitions in the law of armed conflict.”).

102 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10, 

1984, 1465 UNTS 85, 114 (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, 

internal political instability or any other public emergency, may be invoked as a justification of torture.”).

103 Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N. 

Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“In brief, we understand that where the text of the 

Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, 

including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or 

punishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘all 

places that the State Party controls as a governmental authority.’ We have determined that the United States 
26

1.6.4 Just War Tradition. The Just War Tradition describes customs, ethical codes, and 

moral teachings associated with warfare that military thinkers and philosophers have developed 

over centuries to seek the moral justification of and the limitations to war.

104 

The Just War Tradition provides part of the philosophical foundation for the modern law 

of war and has considered both jus ad bellum and jus in bello. The Just War Tradition developed 

criteria or principles that have provided the foundation for modern jus ad bellum rules.105 

Similarly, law of war treaties that provide jus in bello rules, such as the 1949 Geneva 

Conventions, are also rooted in the Just War Tradition. The Just War Tradition remains relevant 

for decisions to employ U.S. military forces and in warfighting.106

1.6.5 Rules of Engagement (ROE). Rules of engagement (ROE) have been defined as 

“[d]irectives issued by competent military authority that delineate the circumstances and 

limitations under which United States forces will initiate and/or continue combat engagement 

with other forces encountered.”107 ROE are used by States to tailor the rules for the use of force 

to the circumstances of a particular operation.108

 

currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. 

registered ships and aircraft.”).

104 WILLIAM O’BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 4 (1981) (“The just-war tradition begins with the 

efforts of St. Augustine to justify Christian participation in Roman wars. From this foundation, St. Thomas Aquinas 

and other Scholastic thinkers developed the Scholastic just-war doctrine. This doctrine reached its mature form by 

the time of the writings of Vitoria and Suarez in the sixteenth and seventeenth centuries. Various Protestant 

moralists and secular writers dealt with just-war issues during the Reformation, but by the eighteenth century justwar doctrine was becoming a curiosity that was not taken seriously. It remained for the twentieth century reaction 

against total war to spark renewed studies in the just-war tradition.”).

105 Refer to § 1.11.1 (Jus ad Bellum Criteria).

106 See, e.g., Barack Obama, Remarks on Accepting the Nobel Peace Prize in Oslo, Dec. 10, 2009, 2009-II PUBLIC 

PAPERS OF THE PRESIDENTS 1799 (“And over time, as codes of law sought to control violence within groups, so did 

philosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a just war 

emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in 

self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.”); 

George H. W. Bush, Remarks at the Annual Convention of the National Religious Broadcasters, Jan. 28, 1991, 

1991-I PUBLIC PAPERS OF THE PRESIDENTS 70 (“Nowhere is this more true than in the Persian Gulf where -- despite 

protestations of Saddam Hussein -- it is not Iraq against the United States, it’s the regime of Saddam Hussein against 

the rest of the world. Saddam tried to cast this conflict as a religious war, but it has nothing to do with religion per 

se. It has, on the other hand, everything to do with what religion embodies: good versus evil, right versus wrong, 

human dignity and freedom versus tyranny and oppression. The war in the Gulf is not a Christian war, a Jewish 

war, or a Moslem war; it is a just war. And it is a war with which good will prevail.”).

107 JOINT PUBLICATION 1-04, Legal Support to Military Operations, GL-3 (Aug. 17, 2011) (“rules of engagement. 

Directives issued by competent military authority that delineate the circumstances and limitations under which 

United States forces will initiate and/or continue combat engagement with other forces encountered. Also called 

ROE.”).

108 For example, Juan Carlos Gomez, Twenty-First-Century Challenges: The Use of Military Forces to Combat 

Criminal Threats, 88 INTERNATIONAL LAW STUDIES 279, 285-86 (2012) (“There must be clear, understandable rules 

provided to military forces on the circumstances under which force may be used and the type and degree of that 

force. This is dependent on the mission assigned to the forces. In Colombia, two differently colored cards are used. 

A blue card is used when the military unit is engaged in a law enforcement mission. The rules on the blue card are 

based on HRL. They provide for the use of force only when no other option is available to accomplish the mission 
27

ROE reflect legal, policy, and operational considerations, and are consistent with the 

international law obligations of the United States, including the law of war.109 ROE may restrict 

actions that would be lawful under the law of war, but may not permit actions prohibited by the 

law of war. States have used ROE as part of the implementation of their law of war obligations

during military operations.

110

1.6.6 Code of Conduct for U.S. Armed Forces. The Code of Conduct is a moral guide for 

U.S. forces to govern their conduct in resisting capture and their actions in the event they fall 

into hostile hands.111 The Code of Conduct was developed after the Korean War and was 

promulgated by Executive Order.112 The Code of Conduct is consistent with the law of war 

obligations of the United States, including obligations in the GPW.113

1.7 TREATIES

Treaties are generally defined as international agreements concluded between States in 

written form and governed by international law.

114 Under international law, a treaty is binding 

upon States that are Parties to it.115

The United States is a Party to a number of law of war treaties.116 For many years, the 

Department of State has published annually a listing of treaties and other international 

agreements in force for the United States. This publication has provided helpful information 

about such treaties, including the date of U.S. ratification and a listing of other Parties to each

treaty.

 

and in self-defense of the person and others. The red card is used in operations against military objectives. These 

cards are based on IHL and permit the offensive use of force, including lethal force if demanded by military 

necessity.”).

109 J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972, 

reprinted in 67 AJIL 124 (1973) (“With reference to your inquiry concerning the rules of engagement governing 

American military activity in Indochina, you are advised that rules of engagement are directives issued by competent 

military authority which delineate the circumstances and limitations under which United States Forces will initiate 

and/or continue combat engagement with the enemy. These rules are the subject of constant review and command 

emphasis. They are changed from time to time to conform to changing situations and the demands of military 

necessity. One critical and unchanging factor is their conformity to existing international law as reflected in the 

Hague Conventions of 1907 and the Geneva Conventions of 1949, as well as with the principles of customary 

international law of which UNGA Resolution 2444 (XXIII) is deemed to be a correct restatement.”).

110 Refer to § 5.1.2 (Implementation of Law of War Obligations in the Conduct of Hostilities During Military 

Operations).

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

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

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

114 Consider, e.g., VCLT art. 1(a) (“‘[T]reaty’ means an international agreement concluded between States in written 

form and governed by international law, whether embodied in a single instrument or in two or more related 

instruments and whatever its particular designation;”).

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

116 Refer to § 19.2.1 (Law of War Treaties to Which the United States Is a Party).
28

1.7.1 Treaties – Notes on Terminology. Treaties may be titled or referred to by several 

other terms in addition to “treaty” – including convention, protocol, or agreement. In the context 

of the law of war, “protocol” often refers to an agreement that supplements or updates an 

existing agreement.

1.7.1.1 “Treaties” Under U.S. Constitutional Law. Under the Constitution, a

“treaty” must receive the advice and consent of the Senate before U.S. ratification or accession. 

Certain international agreements, such as Executive agreements, are not classified as “treaties”

for the purposes of this requirement, although they may be characterized as “treaties” for the 

purposes of international law and impose obligations upon the United States.117

1.7.2 Reservations to Treaties. A State may limit the application of provisions of a treaty 

by reservation upon ratification of the treaty as long as the treaty does not prohibit such 

reservations and the reservation is compatible with the object and purpose of the treaty.

118 For 

example, the United States has taken a reservation to certain provisions of CCW Protocol III on 

Incendiary Weapons.119 On the other hand, for example, the Chemical Weapons Convention 

expressly prohibits reservations to the Convention and prohibits reservations to the Convention’s 

Annexes that are incompatible with its object and purpose.120

1.7.3 Withdrawal From Treaties. Under certain circumstances, States may withdraw 

from treaties.121 Some law of war and arms control treaties specify the conditions under which 

Parties may withdraw from them.122 Even upon denunciation of a treaty, States remain bound by 

 117 See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982) (“The word ‘treaty’ has more than one meaning. 

Under principles of international law, the word ordinarily refers to an international agreement concluded between 

sovereigns, regardless of the manner in which the agreement is brought into force. Under the United States 

Constitution, of course, the word ‘treaty’ has a far more restrictive meaning. Article II, §2, cl. 2, of that instrument 

provides that the President ‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, 

provided two thirds of the Senators present concur.’”) (internal citation omitted).

118 Consider VCLT art. 19 (“A State may, when signing, ratifying, accepting, approving or acceding to a treaty, 

formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only 

specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing 

under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”). See 

also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 

VCLT 2 (“Part 2 of Section II sets forth the rules on reservations to treaties (Articles 19-23). The articles reflect 

flexible current treaty practice with regard to multilateral treaties as generally followed since World War II. The 

earlier traditional rule on reservations had been that in order for a State to become party to a multilateral treaty with 

a reservation the unanimous consent of the other parties was required. That rule has given way in practice to a more 

flexible approach particularly after the International Court of Justice in 1951 handed down its Advisory Opinion on 

Reservations to the Genocide Convention.”).

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

120 Refer to § 19.22 (Chemical Weapons Convention).

121 Consider VCLT art. 54 (“The termination of a treaty or the withdrawal of a party may take place: (a) in 

conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with 

the other contracting States.”).

122 See, e.g., CCW art. 9(1) (“Any High Contracting Party may denounce this Convention or any of its annexed 

Protocols by so notifying the Depositary.”); GWS art. 63 (“Each of the High Contracting Parties shall be at liberty to 

denounce the present Convention.”).
29

customary international law, including law of war principles.123

1.7.4 Use of Certain Subsequent Practice in Treaty Interpretation. Certain subsequent 

State practice in the application of a treaty provision may be taken into account when 

interpreting that provision.124 Subsequent State practice is important as an element of 

interpretation when it constitutes objective evidence of the understanding of the Parties as to the 

meaning of the treaty.125 For example, the subsequent practice of States in the application of the 

GWS-Sea’s requirements for hospital ships has clarified that States may use hospital ships with 

the capability to conduct encrypted communications.126

1.7.5 Treaties and Domestic Implementing Legislation. States may enact domestic 

legislation to implement treaty provisions. Although such implementing legislation is not 

international law, it may reflect a State’s interpretation of those provisions.127

A State’s domestic implementing legislation, or lack of such legislation, however, does 

not justify that State’s noncompliance with an international obligation as a matter of international 

law.128

1.8 CUSTOMARY INTERNATIONAL LAW

Customary international law results from a general and consistent practice of States that 

 123 Refer to § 19.8.3 (Martens Clause).

124 Consider VCLT art. 31(3) (“There shall be taken into account, together with the context: (b) Any subsequent 

practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;”). 

See also I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 199 (§325(2)) (1987) (“Any 

subsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practice 

between the parties in the application of the agreement, are to be taken into account in its interpretation.”); I 

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 203 (§325, comment c) (1987) (This 

“conforms to United States modes of interpretation, affirming that subsequent practice of the parties can be taken 

into account in interpreting international agreements.”).

125 See II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 221 (¶15) (1966) (“The importance of such 

subsequent practice in the application of the treaty, as an element of interpretation, is obvious; for it constitutes 

objective evidence of the understanding of the parties as to the meaning of the treaty. Recourse to it as a means of 

interpretation is well-established in the jurisprudence of international tribunals.”). See also Case Concerning 

Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 1999 I.C.J. 1045, 1075-76 (¶49) (same); Russian Claim 

for Interest on Indemnities (The Russian Indemnity Case), Russia/Turkey, 11 R.I.A.A. 421, 433 (1912) Permanent 

Court of Arbitration Unofficial English Translation, 3 (“Whereas the fulfilment of obligations is, between States as 

between individuals, the surest commentary on the meaning of these obligations;”); Case Concerning The Temple of 

Preah Vihear (Cambodia v. Thailand), Merits, Judgment, 1962 I.C.J. 6, 34 (The map “was accepted by the Parties in 

1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitation 

which the Treaty itself required. In other words, the Parties at that time adopted an interpretation of the treaty 

settlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevail 

over the relevant clause of the treaty.”).

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

127 See United States v. Navarre, 173 U.S. 77, 79 (1899) (noting that “[i]f the meaning of the treaty was doubtful, it 

was competent for Congress to resolve the doubt” in its enactment of legislation).

128 Refer to § 1.10.1.4 (Force of International Law Notwithstanding a State’s Domestic Law).
30

is followed by them from a sense of legal obligation (opinio juris).129 Customary international 

law is an unwritten form of law in the sense that it is not created through a written agreement by

States.

Customary international law is generally binding on all States, but States that have been 

persistent objectors to a customary international law rule during its development are not bound

by that rule.130

Assessing whether State practice and opinio juris have resulted in a rule of customary 

international law may be a difficult inquiry.131 

1.8.1 Relationship Between Treaties and Customary International Law. Treaty 

provisions may, inter alia: (1) not reflect customary international law; (2) reflect customary 

international law; or (3) be based on customary law, but not precisely reflect it. 

In most cases, treaty provisions do not reflect customary international law. For example, 

AP I’s provisions changing which persons would be entitled to the privileges of combatant status 

were viewed as novel at the time of the adoption of AP I and as not reflecting customary 

international law.132

In some cases, a treaty provision may reflect customary international law. The rule 

reflected in the treaty would thus be understood to be binding, even if the treaty provision was 

not applicable, because the rule maintains a separate existence as a customary norm.133 For 

example, provisions of Hague IV and the Hague IV Regulations have been found to reflect 

customary international law.134 Law of war treaties have specified that customary law and 

 129 See I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 24 (§102(2)) (1987) 

(“Customary international law results from a general and consistent practice of states followed by them from a sense 

of legal obligation.”).

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

131 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 421-22 (1987) 

(“Having described the reasons why I believe that the topic of this Workshop is important and very relevant to 

decisions currently being taken with respect to Protocol I in the United States and other governments, it is of course 

much more difficult to say exactly which of the rules contained in the Protocol currently are in fact a part of 

customary law. As I am sure you all appreciate quite well, there is no clear line drawn in the dust for all to see 

between those principles that are now customary law and those which have not yet attained the degree of acceptance 

and observance that might make them customary law. Instead, there are degrees of acceptance and degrees of 

observance, and the judgment as to what degree of each is sufficient for establishment as customary law is 

inherently subjective and hard to define precisely.”).

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

133 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 

1986 I.C.J. 14, 95 (¶178) (“[E]ven if two norms belonging to two sources of international law appear identical in 

content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of 

customary international law, these norms retain a separate existence.”).

134 Refer to § 19.8.2.1 (Hague IV and Customary International Law).
31

principles continue to apply even if the treaty is not applicable.135

A treaty provision may be based on an underlying principle that is an accepted part of 

customary law, but the precise language of the treaty provision may not reflect customary 

international law because there may be considerable disagreement as to the precise statement of 

that underlying principle.

136 For example, the United States has expressed support for the 

customary principle on which Article 51(3) of AP I is based, but has noted that Article 51(3) of 

AP I, as drafted, does not reflect customary international law.137

1.8.2 State Practice. One part of determining whether a purported rule is customary 

international law is to analyze whether there is a general and consistent practice of States that 

supports the purported rule.

An analysis of State practice to determine whether a purported rule reflects the customary 

international law of war should include consideration of, inter alia: (1) whether the State 

practice is extensive and virtually uniform; (2) actual operational practice; (3) the practice of 

specially affected States; and (4) contrary practice.

1.8.2.1 Extensive and Virtually Uniform. State practice should be sufficiently 

dense and consistent to meet the “extensive and virtually uniform” standard generally required 

for existence of a customary rule.138

1.8.2.2 Actual Operational Practice. An analysis of State practice should include

an analysis of actual operational practice by States during armed conflict. Although manuals or 

other official statements may provide important indications of State behavior, they cannot 

 135 Refer to § 19.8.3 (Martens Clause).

136 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 422 (1987) (“In 

addition, it may be possible in many cases to say that a general principle is an accepted part of customary law, but to 

have considerable disagreement as to the precise statement of that general principle.”).

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

138 See, e.g., Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard 

G. Lugar, in Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112th 

Congress, First Session, 53, 57 (Jun. 28, 2011) (“Determining that a principle has become customary international 

law requires a rigorous legal analysis to determine whether such principle is supported by a general and consistent 

practice of states followed by them from a sense of legal obligation. Although there is no precise formula to indicate 

how widespread a practice must be, one frequently used standard is that state practice must be extensive and 

virtually uniform, including among States particularly involved in the relevant activity (i.e., specially affected 

States).”); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of 

Germany v. Netherlands), 1969 I.C.J. 3, 43 (¶74) (“Although the passage of only a short period of time is not 

necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was 

originally a purely conventional rule, an indispensable requirement would be that within the period in question, short 

though it might be, State practice, including that of States whose interests are specially affected, should have been 

both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in 

such a way as to show a general recognition that a rule of law or legal obligation is involved.”).
32

replace a meaningful assessment of operational State practice.139

1.8.2.3 Specially Affected States. The practice of “States whose interests are 

specially affected,” e.g., States with a distinctive history of participation in the relevant matter, 

must support the purported rule.140 States that have had a wealth of experience, or that have 

otherwise had significant opportunities to develop a carefully considered military doctrine, may 

be expected to have contributed a greater quantity and quality of State practice relevant to the 

law of war than States that have not.

For example, “specially affected States” could include, depending upon the relevant 

matter, the nuclear powers, other major military powers, and occupying or occupied States.141 

As a case in point, the United Kingdom has been viewed as a specially affected State with 

respect to the law of the sea.142

1.8.2.4 Contrary Practice. Evidence of contrary practice, i.e., the practice of 

States that does not support the purported rule, must be considered in assessing whether that rule 

 139 U.S. RESPONSE TO ICRC CIHL STUDY 515 (“Second, we are troubled by the type of practice on which the Study 

has, in too many places, relied. Our initial review of the State practice volumes suggests that the Study places too 

much emphasis on written materials, such as military manuals and other guidelines published by States, as opposed 

to actual operational practice by States during armed conflict. Although manuals may provide important indications 

of State behavior and opinio juris, they cannot be a replacement for a meaningful assessment of operational State 

practice in connection with actual military operations. We also are troubled by the extent to which the Study relies 

on non-binding resolutions of the General Assembly, given that States may lend their support to a particular 

resolution, or determine not to break consensus in regard to such a resolution, for reasons having nothing to do with 

a belief that the propositions in it reflect customary international law.”).

140 See U.S. RESPONSE TO ICRC CIHL STUDY 517 endnote 3 (“Not every State that has participated in an armed 

conflict is ‘specially affected;’ such States do generate salient practice, but it is those States that have a distinctive 

history of participation that merit being regarded as ‘specially affected.’”); Written Statement of the Government of 

the United States of America, 28-29, Jun. 20, 1995, I.C.J., Request by the United Nations General Assembly for an 

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“Evidence of a customary norm 

requires indication of ‘extensive and virtually uniform’ State practice, including States whose interests are ‘specially 

affected.’ ... With respect to the use of nuclear weapons, customary law could not be created over the objection of 

the nuclear-weapon States, which are the States whose interests are most specially affected.”).

141 Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL 

238, 249 (1996) (“A broader question, however, concerns the degree of weight to be assigned to the practice of 

various states in the formation of the international customary law of war. I find it difficult to accept the view, 

sometimes advanced, that all states, whatever their geographical situation, military power and interests, inter alia, 

have an equal role in this regard. Belligerency is only one factor here. The practice and opinion of Switzerland, for 

example, as a neutral state, surely have more to teach us about assessment of customary neutrality law than the 

practice of states that are not committed to the policy of neutrality and have not engaged in pertinent national 

practice. The practice of ‘specially affected states’ -such as nuclear powers, other major military powers, and 

occupying and occupied states-which have a track record of statements, practice and policy, remains particularly 

telling. I do not mean to denigrate state equality, but simply to recognize the greater involvement of some states in 

the development of the law of war, not only through operational practice but through policies expressed, for 

example, in military manuals.”).

142 See, e g., The Paquete Habana, 175 U.S. 677, 719 (1900) (Fuller, J., dissenting) (noting that “[i]t is difficult to 

conceive of a law of the sea of universal obligation to which Great Britain has not acceded.”).
33

exists as a rule of customary international law.143 

In addition, the persistent objection of States may be relevant after the formation of that

rule by preventing the application of that rule to States that have objected to that rule during its 

development.

144

1.8.3 Opinio Juris. In addition to analyzing State practice, one must determine whether 

the State practice results from a sense of legal obligation (opinio juris) or merely reflects States’

policy or practical interests. Opinio juris cannot simply be inferred from consistent State 

practice, which may exist for reasons other than opinio juris.145 For example, the fact that 

nuclear weapons have not been used to conduct attacks during armed conflict since 1945 does 

not reflect a prohibition in customary international law against their use because such lack of use 

has not resulted from opinio juris.

146

1.8.3.1 Potential Sources of Opinio Juris. It may be difficult to find evidence of 

opinio juris, and care should be exercised in assessing whether a source reflects opinio juris on 

the part of a State. For example, treaty provisions do not necessarily reflect opinio juris.

147 

Similarly, rather than indicating a position expressed out of a sense of a customary legal 

 143 For example, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 311, 311-12 

(Dissenting Opinion of Vice-President Schwebel) (“One way of surmounting the antinomy between practice and 

principle would be to put aside practice. That is what those who maintain that the threat or use of nuclear weapons 

is unlawful in all circumstances do. ... State practice demonstrates that nuclear weapons have been manufactured 

and deployed by States for some 50 years; that in that deployment inheres a threat of possible use; and that the 

international community, by treaty and through action of the United Nations Security Council, has, far from 

proscribing the threat or use of nuclear weapons in all circumstances, recognized in effect or in terms that in certain 

circumstances nuclear weapons may be used or their use threatened.”).

144 Refer to § 1.8.4 (Objection During Development).

145 U.S. RESPONSE TO ICRC CIHL STUDY 515 (“Although the same action may serve as evidence both of State 

practice and opinio juris, we do not agree that opinio juris simply can be inferred from practice. Both elements 

instead must be assessed separately in order to determine the presence of a norm of customary international law.”).

146 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 253-54 (¶¶65-67) 

(“States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the 

existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclear 

weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part of 

those who possess such weapons. Some other States, which assert the legality of the threat and use of nuclear 

weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. 

They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the 

exercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if 

nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely 

because circumstances that might justify their use have fortunately not arisen. The Court does not intend to 

pronounce here upon the practice known as the ‘policy of deterrence.’ It notes that it is a fact that a number of 

States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the 

members of the international community are profoundly divided on the matter of whether non-recourse to nuclear 

weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court 

does not consider itself able to find that there is such an opinio juris.”).

147 U.S. RESPONSE TO ICRC CIHL STUDY 515 (“One therefore must be cautious in drawing conclusions as to opinio 

juris from the practice of States that are parties to conventions, since their actions often are taken pursuant to their 

treaty obligations, particularly inter se, and not in contemplation of independently binding customary international 

law norms.”).
34

obligation, a State’s military manual often recites requirements applicable to that State under 

treaties to which it is a Party, or provides guidance to its military forces for reasons of national 

policy.148 

1.8.4 Objection During Development. Even if a rule otherwise reflects customary 

international law, the rule is not binding upon a State that has persistently objected to that rule

during its development.

149 This principle is an accepted application of the traditional principle 

that international law essentially depends on the consent of States.150

1.9 SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW

As a subsidiary means, it may be helpful to consult judicial decisions and the teachings of 

the most highly qualified publicists of various nations in determining the applicable rules of

international law. These means are subsidiary in the sense that they do not, in themselves, 

constitute sources of treaty or customary international law.

Discretion must be exercised in weighing sources, however, because sources vary 

significantly in their probative value. For example, the United States has said that it is not in a 

position to accept without further analysis the conclusions in a study on customary international 

humanitarian law published by the ICRC.

151

1.9.1 Judicial Decisions. Judicial decisions have sometimes been used as a subsidiary 

 148 U.S. RESPONSE TO ICRC CIHL STUDY 516 (“We are troubled by the Study’s heavy reliance on military manuals. 

We do not agree that opinio juris has been established when the evidence of a State’s sense of legal obligation 

consists predominately of military manuals. Rather than indicating a position expressed out of a sense of a 

customary legal obligation, in the sense pertinent to customary international law, a State’s military manual often 

(properly) will recite requirements applicable to that State under treaties to which it is a party. Reliance on 

provisions of military manuals designed to implement treaty rules provides only weak evidence that those treaty 

rules apply as a matter of customary international law in non-treaty contexts.”).

149 See Fisheries Case, (United Kingdom v. Norway), Judgment, 1951 I.C.J. 116, 131 (“In these circumstances the 

Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their 

national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between 

these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the 

authority of a general rule of international law. In any event the ten-mile rule would appear to be inapplicable as 

against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”); Asylum 

Case (Colombia v. Peru), 1950 I.C.J. 266, 277-78 (“The Court cannot therefore find that the Colombian Government 

has proved the existence of such a custom. But even if it could be supposed that such a custom existed between 

certain Latin-American States only, it could not be invoked against Peru which, far from having by its attitude 

adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 

and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic 

asylum.”). See also U.S. RESPONSE TO ICRC CIHL STUDY 529 endnote 38 (“We note that the Study raises doubts 

about the continued validity of the ‘persistent objector’ doctrine. Study, Vol. I, p. xxxix. The U.S. Government 

believes that the doctrine remains valid.”).

150 I RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 32 (§102, Reporters’ Note 2)

(1987) (“That a rule of customary law is not binding on any state indicating its dissent during the development of the 

rule (Comment d) is an accepted application of the traditional principle that international law essentially depends on 

the consent of states.”).

151 Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law).
35

means of determining the rules of international law.152

Judicial decisions are generally consulted as only persuasive authority because a

judgment rendered by an international court generally binds only the parties to the case in respect 

of that particular case.

153 The legal reasoning underlying the decisions of the International Court 

of Justice is not binding on States.

154 Similarly, the decisions of the International Criminal 

Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda cannot, 

as a strictly legal matter, “bind” other courts.155

The legal principle of stare decisis does not generally apply between international 

tribunals, i.e., customary international law does not require that one international tribunal follow 

the judicial precedent of another tribunal in dealing with questions of international law.

156 

Moreover, depending on the international tribunal, a tribunal may not be bound by its prior 

decisions. Some international courts, however, may adhere to their own prior decisions in 

 152 ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law such 

disputes as are submitted to it, shall apply: ... d. subject to the provisions of Article 59, judicial decisions ... as 

subsidiary means for the determination of rules of law.”).

153 See, e.g., ICJ STATUTE art. 59 (“The decision of the Court has no binding force except between the parties and in 

respect of that particular case.”).

154 John B. Bellinger, III, Legal Adviser, Department of State, 2006 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1024 (“We believe that these concerns were largely borne out in the advisory opinion 

rendered by the Court. In practice, the opinion has made little meaningful contribution to efforts to resolve issues 

between the Israelis and Palestinians. Also, the Court’s opinion is open to criticism on its treatment of both factual 

and legal issues, in some cases due more to process than to any fault on the part of the Court. For example, the fact 

that the General Assembly had already declared itself on many of the issues, risks creating the impression that the 

Court was being used to advance a particular set of political claims. Also of concern are efforts in some quarters to 

suggest that aspects of the Court’s advisory opinion, such as that relating to the extraterritorial application of the 

International Covenant on Civil and Political Rights, have binding force on member states in contexts that go 

beyond those addressed in the advisory opinion. This of course, is not the case. Under the ICJ statute, states are 

bound only by the decisions—and not by the Court’s reasoning underlying those decisions—in contentious cases to 

which they are parties, and advisory opinions have no binding force at all, but rather serve to provide guidance on 

legal questions to the UN organ or specialized agency requesting them.”).

155 Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera 

Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 61, 67 (“The ICTY and ICTR began developing a modern jurisprudence of 

criminal liability that was based on existing law as applied to a modern ethnic conflict. One of the ICTY’s early 

accomplishments was the Dusko Tadic case, which involved a relatively low-level offender who -- had he been 

caught only a few years later -- would have been referred to Bosnia for domestic prosecution. The Tadic decision 

provided a reasoned basis for the seminal conclusions that (1) the UN Security Council had the authority to set up a 

criminal court under Chapter VII of the UN Charter; (2) the tribunal’s jurisdiction extended to war crimes 

committed in the course of a non-international armed conflict; and (3) Tadic could be convicted for his association 

with a small group of offenders, articulating the concept of joint criminal enterprise (“JCE”) that later became a 

central feature of the ICTY’s work. ... The post-WWII tribunals had largely ignored sexual violence, but the ICTY 

and ICTR situated the issue within the existing law of war crimes, crimes against humanity, and genocide. Although 

these decisions cannot, as a strictly legal matter ‘bind’ other courts, there is no doubt that the jurisprudence of the 

ICTY and ICTR has been influential in the broader development of international criminal law.”).

156 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 36-37 (§103, comment b) (1987) 

(“That provision [Article 59 of the Statute of the ICJ] reflects the traditional view that there is no stare decisis in 

international law.”).
36

resolving a case absent a sufficiently persuasive reason to reconsider the point of law.

157

1.9.2 Legal Writings of Highly Qualified Publicists. The writings “of the most highly 

qualified publicists” have sometimes been used as a subsidiary means of determining the rules of 

international law.158 For example, classical publicists, such as Hugo Grotius and Emmerich de 

Vattel, and recognized scholars, such as Francis Lieber and Hersch Lauterpacht, have been 

widely cited and relied upon as practitioners have sought to interpret and apply the law of war. 

The standard for whose writings should be relied upon is high, and writings are only as 

authoritative as the evidence upon which they are based. The writings should only be relied 

upon to the degree they accurately reflect existing law, rather than the author’s views about what 

the law should be.

159

1.10 LEGAL FORCE OF THE LAW OF WAR

This section addresses the technical legal force of the law of war under international and 

U.S. domestic law. As a matter of policy, DoD personnel may be required to adhere to law of 

war rules, even where the rules do not technically apply as a matter of law.160

1.10.1 Legal Force of the Law of War Under International Law. The technical force of a 

law of war rule depends on whether it takes the form of a treaty or customary international law. 

1.10.1.1 Legal Force of Treaties Among States. Under international law, every 

treaty in force is binding upon the Parties to it and must be performed by them in good faith.161

A treaty enters into force for a State after, inter alia, it has provided its consent to be bound by 

the treaty.162 In some cases, the terms of a treaty may cause it to expire, and in other cases, 

 157 See, e.g., Prosecutor v. Aleksovski, ICTY Appeals Chamber, IT-95-14/1-A, Judgment, ¶¶107-109 (Mar. 24, 

2000) (“[I]in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, 

but should be free to depart from them for cogent reasons in the interests of justice. ... It is necessary to stress that 

the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals 

Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as 

to the law, including the authorities cited, and the facts.”).

158 ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law such 

disputes as are submitted to it, shall apply: ... d. subject to the provisions of Article 59, ... the teachings of the most 

highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”).

159 See The Paquete Habana, 175 U.S. 677, 700 (1900) (“For this purpose, where there is no treaty, and no 

controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized 

nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and 

experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are 

resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for 

trustworthy evidence of what the law really is.”).

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

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

good faith.”).

162 Consider VCLT art. 24 (“1. A treaty enters into force in such manner and upon such date as it may provide or as 

the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as 

consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State 

to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for 
37

States may withdraw from a treaty.

163 In some cases, a reservation may also modify the 

obligations imposed by a treaty on that State.164

A treaty does not create either obligations or rights for a third State without its consent.165 

Thus, a treaty generally would not be binding on non-Parties to the treaty or create rights or 

obligations for a non-Party to the treaty with respect to a Party to the treaty. Instead, a treaty 

only creates law (i.e., rights that may be invoked) as between the States that are Parties to it.

166

1.10.1.2 Legal Force of Customary International Law Among States. The 

customary law of war generally binds all States. However, States that have objected to a 

customary international law rule during its development are not bound by that rule.

167

1.10.1.3 Predominately Inter-State Nature of International Obligations. 

International obligations are generally viewed as running to other States, although individuals 

may have responsibility under international law.

Traditionally, international law has governed relations between States, although over time 

it has increasingly regulated the relationships between States and persons. Under the traditional 

view, a State’s international law obligations run to other States, even when the obligations relate 

to an individual (e.g., by protecting that individual), such that individuals’ “place in international 

life depends largely on their status as nationals of states.”168 For example, the 1949 Geneva 

Conventions and the customary law of war do not provide a private right for individuals to claim 

compensation directly from a State for violations of the law of war; rather, such claims are made 

 

that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the 

authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of 

its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry 

into force of the treaty apply from the time of the adoption of its text.”). See also DEPARTMENT OF THE ARMY 

PAMPHLET 27-161-1, I International Law: Law of Peace, ¶8-12 (Sept. 1, 1979) (“An international agreement is 

basically a contract between states, and elements of obligation akin to those found in municipal contract law are 

present. However, as discussed in Part I, a treaty is not a contract in the common law sense of an agreement 

requiring consideration. It is the assent to be bound and not reciprocity or quid pro quo that obligates the parties.”).

163 Refer to § 1.7.3 (Withdrawal From Treaties).

164 Refer to § 1.7.2 (Reservations to Treaties).

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

consent.”).

166 Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) 1925 P.C.I.J. 

(series A) No. 7, at 29 (“A treaty only creates law as between the States which are parties to it; in case of doubt, no 

rights can be deduced from it in favour of third States.”).

167 Refer to § 1.8.4 (Objection During Development).

168 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 71 (1987). See also II 

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 217 (§713, comment a) (1987) 

(explaining that in principle, state responsibility for injury to the nationals of other states “is to the state of the 

alien’s nationality and gives that state a claim against the offending state. The claim derives from injury to an 

individual, but once espoused it is the state’s claim, and can be waived by the state.”).
38

by other States.169

International law has long prescribed certain rules regulating the conduct of 

individuals.170 Under international law, there may be responsibility for individuals, apart from 

State responsibility.

171

1.10.1.4 Force of International Law Notwithstanding a State’s Domestic Law. A 

State’s domestic law does not justify that State’s noncompliance with an international obligation

as a matter of international law.

172 Similarly, the fact that a State’s domestic law does not 

provide for a penalty with respect to a violation of international law does not relieve a person 

from responsibility for that act under international law.173

1.10.2 Force of the Law of War Under U.S. Domestic Law. The specific legal force of a 

law of war rule under U.S. domestic law may depend on whether that rule takes the form of a 

self-executing treaty, non-self-executing treaty, or customary international law.

Longstanding DoD policy has been to require DoD personnel to comply with the law of 

war obligations of the United States.174

Even if a violation of a rule is not directly punishable under U.S. law, a variety of tools in 

U.S. domestic law may be used to enforce a law of war obligation of the United States. For 

example, a violation of a law of war obligation may be made punishable through implementation 

of the obligation in military instructions, regulations, and procedures.175

1.10.2.1 Force of Self-Executing and Non-Self-Executing Treaties Under U.S. 

Domestic Law. Under domestic law, treaties to which the United States is a Party are part of 

U.S. law.

176 

 169 Refer to § 18.16.4 (No Private Right to Compensation Under Customary International Law or the 1949 Geneva 

Conventions).

170 See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004) (noting that international law has included “a body of 

judge-made law regulating the conduct of individuals situated outside domestic boundaries” and “rules binding 

individuals for the benefit of other individuals [that] overlapped with the norms of state relationships”).

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

172 Secretary of State Bayard, Instruction to Mr. Connery, charge to Mexico, Nov. 1, 1887, II MOORE’S DIGEST 235 

(“[A] government can not appeal to its municipal regulations as an answer to demands for the fulfillment of 

international duties. Such regulations may either exceed or fall short of the requirements of international law, and in 

either case that law furnishes the test of the nation’s liability and not its own municipal rules.”). Consider VCLT art. 

27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This 

rule is without prejudice to article 46.”).

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

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

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

176 See U.S. CONSTITUTION art. VI (“This Constitution, and the laws of the United States which shall be made in 

pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be 
39

The terms “self-executing” and “non-self-executing” may be used to explain how a treaty 

is to take effect in U.S. domestic law. A treaty may be classified as a self-executing treaty that 

“operates of itself, without the aid of any legislative provision,” or as a non-self-executing treaty 

that would require “that the Legislature must execute the contract before it can become a rule for 

the Court.”177

1.10.2.2 Force of Customary International Law Under U.S. Domestic Law. The 

customary law of war is part of U.S. law insofar as it is not inconsistent with any treaty to which 

the United States is a Party, or a controlling executive or legislative act.178

1.11 JUS AD BELLUM

The law of war has been categorized into jus ad bellum (law concerning the resort to 

force) and jus in bello (law concerning conduct during war).179 Although jus ad bellum is an 

essential part of the law of war to consider in the political process of whether to resort to military 

force, this manual focuses on jus in bello.

180 Although jus in bello rules generally operate 

independently of whether a side has comported with jus ad bellum in the resort to force, parts of 

jus ad bellum are relevant to jus in bello.

181

This section provides a brief overview of some basic aspects of jus ad bellum. Jus ad 

bellum issues might raise questions of national policy that, in the Executive Branch, would be 

 

the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or 

laws of any State to the contrary notwithstanding.”).

177 Foster & Elam v. Neilson 27 U.S. 253, 314 (1829) (Marshall, C.J.). See also Whitney v. Robertson, 124 U.S. 

190, 194 (1888) (“A treaty is primarily a contract between two or more independent nations, and is so regarded by 

writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through 

reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to 

legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress 

as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no 

legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”); 

Medellin v. Texas, 552 U.S. 491, 525-26 (2008) (“The responsibility for transforming an international obligation 

arising from a non-self-executing treaty into domestic law falls to Congress.”).

178 The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, ... where there is no treaty 

and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of 

civilized nations,”).

179 See, e.g., WILLIAM O‘BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 9 (1981) (defining jus ad bellum as the 

“doctrines concerning permissible recourse to war” and jus in bello as “the just conduct of war”); MICHAEL 

WALZER, JUST AND UNJUST WARS 21 (1977) (“War is always judged twice, first with reference to the reasons states 

have for fighting, secondly with reference to the means they adopt. The first kind of judgment is adjectival in 

character: we say that a particular war is just or unjust. The second is adverbial: we say that a war is being fought 

justly or unjustly. Medieval writers made the difference a matter of prepositions, distinguishing jus ad bellum, the 

justice of war, from jus in bello, justice in war.”). But see Robert Kolb, Origin of the twin terms jus ad bellum/jus in 

bello, 37 INTERNATIONAL REVIEW OF THE RED CROSS 553 (Sept.-Oct. 1997) (“The august solemnity of Latin confers 

on the terms jus ad bellum and jus in bello the misleading appearance of being centuries old. In fact, these 

expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until 

after the Second World War, in the late 1940s to be precise.”).

180 Refer to § 1.1.2 (Scope).

181 Refer to § 3.5 (Relationship Between Jus in Bello and Jus ad Bellum).
40

decided by the President. In U.S. practice, legal advice provided to national-level principal 

officials on such issues generally would need to be addressed through interagency discussions 

coordinated by the legal adviser to the National Security Council, including consultation and 

coordination among senior counsel of relevant U.S. departments and agencies.

1.11.1 Jus ad Bellum Criteria. Certain jus ad bellum criteria have, at their philosophical 

roots, drawn from principles that have been developed as part of the Just War Tradition.182 

These principles have included:

• a competent authority to order the war for a public purpose;

• a just cause (such as self-defense);

• the means must be proportionate to the just cause;

• all peaceful alternatives must have been exhausted; and

• a right intention on the part of the just belligerent.

183

These principles may be reflected in modern law of war rules. For example, the Charter 

of the United Nations recognizes the inherent right of States to use force in individual or 

collective self-defense—a just cause for military action.

184 

These principles have also been incorporated into military doctrine.185

1.11.1.1 Competent Authority (Right Authority) to Wage War for a Public 

Purpose. One longstanding criterion for a just war is that war must be ordered by a competent 

authority for a public purpose. This jus ad bellum principle (sometimes called right authority) 

acknowledges that the resort to military force is a prerogative of the State.

186

 182 Refer to § 1.6.4 (Just War Tradition).

183 WILLIAM O’BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 16 (1981) (“The decision to invoke the 

exceptional rights of war must be based on the following criteria: there must be competent authority to order the 

war for a public purpose; there must be a just cause (it may be self-defense or the protection of rights by offensive 

war) and the means must be proportionate to the just cause and all peaceful alternatives must have been exhausted; 

and there must be right intention on the part of the just belligerent.”).

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

185 MARINE CORPS DOCTRINAL PUBLICATION 1-1, Strategy, 93, 95 (1997) (“[T]he just war criteria provide objective 

measures from which to judge our motives. The effective strategist must be prepared to demonstrate to all sides 

why the defended cause meets the criteria of just war theory and why the enemy’s cause does not. If a legitimate 

and effective argument on this basis cannot be assembled, then it is likely that both the cause and the strategy are 

fatally flawed.”).

186 See Talbot v. Janson, 3 U.S. 133, 160-61 (1795) (Iredell, J., concurring) (“[N]o hostilities of any kind, except in 

necessary self-defence, can lawfully be practised by one individual of a nation, against an individual of any other 

nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority; 

it is instituted for national purposes, and directed to national objects; and each individual on both sides is engaged in 

it as a member of the society to which he belongs, not from motives of personal malignity and ill will.”); VATTEL,

THE LAW OF NATIONS 235 (3.1.4) (“It is the sovereign power alone, therefore, which has the right to make war.”);
41

The criterion that war must be ordered by a competent authority for a public purpose is 

reflected in the requirement that armed groups must belong to a State to receive the privileges of 

combatant status.187 This criterion is also reflected in the general denial to private persons of the 

entitlement to the privileges of combatant status.

188 This criterion is also reflected in the 

condemnation under international law of certain types of private acts of hostility (such as piracy 

or terrorism) outside the context of patriotic resistance against an enemy State during 

international armed conflict.189

1.11.1.2 The Means Must Be Proportionate to the Just Cause (Proportionality –

Jus ad Bellum). Proportionality involves a weighing of the contemplated actions with the 

justification for taking action.190 For example, the proportionality of the measures taken in selfdefense is to be judged according to the nature of the threat being addressed.191 Force may be 

used in self-defense, but only to the extent that it is required to repel the armed attack and to 

restore the security of the party attacked.192 As an illustration, assessing the proportionality of 

measures taken in self-defense may involve considerations of whether an actual or imminent 

attack is part of an ongoing pattern of attacks or what force is reasonably necessary to discourage 

future armed attacks or threats thereof.

193

 GROTIUS, LAW OF WAR & PEACE 97 (1.3.4.2) (“But because the whole state is endangered by war, provision has 

been made by the laws of almost every state that war may be waged only under the authority of him who holds the 

sovereign power in the state.”).

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

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

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

190 Refer to § 2.4 (Proportionality).

191 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE 

JOURNAL OF INTERNATIONAL LAW 295, 305-06 (2004) (“There is no requirement in international law that a State 

exercising its right of self-defense must use the same degree or type of force used by the attacking State in its most 

recent attack. Rather, the proportionality of the measures taken in self-defense is to be judged according to the 

nature of the threat being addressed... . A proper assessment of the proportionality of a defensive use of force 

would require looking not only at the immediately preceding armed attack, but also at whether it was part of an 

ongoing series of attacks, what steps were already taken to deter future attacks, and what force could reasonably be 

judged to be needed to successfully deter future attacks.”).

192 Counter-memorial and Counter-claim Submitted by the United States of America, International Court of Justice, 

Case Concerning Oil Platforms (Iran v. United States) 141 (¶4.31) (Jun. 23, 1997) (“Actions in self-defense must be 

proportionate. Force can be used in self-defense, but only to the extent that it is required to repel the armed attack 

and to restore the security of the party attacked.”).

193 Herbert S. Okun, Letter Dated 14 April 1986 from the Acting Permanent Representative of the United States of 

America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/17990 (Apr. 14, 

1986) (“The United States objective was to destroy facilities used to carry out Libya’s hostile policy of international 

terrorism and to discourage Libyan terrorist attacks in the future. These facilities constituted essential elements 

which have enabled Libyan agents to carry out deadly missions against U.S. installations and innocent 

individuals.”); Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the United 

States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun. 

26, 1993) (“Accordingly, as a last resort, the United States has decided that it is necessary to respond to the 

attempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target that is 

involved in such attacks. ... It is the sincere hope of the United States Government that such limited and 
42

The jus ad bellum criterion of proportionality is different from the jus in bello principle 

of proportionality in conducting attacks.194 These concepts should not be confused with one 

another.195

1.11.1.3 All Peaceful Alternatives Must Have Been Exhausted (Necessity – Jus ad 

Bellum). The jus ad bellum condition of necessity requires that no reasonable alternative means 

of redress are available.196 For example, in exercising the right of self-defense, diplomatic 

means must be exhausted or provide no reasonable prospect of stopping the armed attack or 

threat thereof.

197

The jus ad bellum criterion of necessity is different from the jus in bello concept of 

military necessity.

198

1.11.2 U.N. Charter Framework and the U.N. Security Council. The Charter of the 

United Nations provides the modern treaty framework for jus ad bellum. Under the Charter of 

the United Nations, the U.N. Security Council has primary responsibility for the maintenance of 

international peace and security.

199 The U.N. Security Council may determine the existence of 

any threat to the peace, breach of the peace, or act of aggression, and may decide what measures 

shall be taken under the Charter to maintain or restore international peace and security.200 For 

 proportionate action may frustrate future unlawful actions on the part of the Government of Iraq and discourage or 

preempt such activities.”).

194 Refer to § 5.10 (Proportionality in Conducting Attacks).

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

196 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE 

JOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (“The condition of ‘necessity,’ rather, requires that no 

reasonable alternative means of redress are available.”).

197 For example, Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the United 

States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun. 

26, 1993) (“Based on the pattern of the Government of Iraq’s behavior, including the disregard for international law 

and Security Council resolutions, the United States has concluded that there is no reasonable prospect that new 

diplomatic initiatives or economic measures can influence the current Government of Iraq to cease planning future 

attacks against the United States. Accordingly, as a last resort, the United States has decided that it is necessary to 

respond to the attempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target 

that is involved in such attacks.”); Thomas R. Pickering, Letter Dated 20 December 1989 from the Permanent 

Representative of the United States of America to the United Nations Addressed to the President of the Security 

Council, U.N. Doc. S/21035 (Dec. 20, 1989) (“The United States has exhausted every available diplomatic means to 

resolve peacefully disputes with Mr. Noriega, who has rejected all such efforts. Action by the United States was 

taken after Mr. Noriega declared on 15 December that a state of war existed with the United States, and following 

brutal attacks by forces of Mr. Noriega on lawfully present American personnel, murdering one American and 

injuring and threatening others.”).

198 Refer to § 2.2 (Military Necessity).

199 U.N. CHARTER art. 24(1) (“In order to ensure prompt and effective action by the United Nations, its Members 

confer on the Security Council primary responsibility for the maintenance of international peace and security, and 

agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”).

200 U.N. CHARTER art. 39 (“The Security Council shall determine the existence of any threat to the peace, breach of 

the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in 

accordance with Articles 41 and 42, to maintain or restore international peace and security.”).
43

example, the U.N. Security Council may recognize that a State is acting lawfully in self-defense 

or that another State is the aggressor in an armed conflict.201 In addition, the U.N. Security 

Council may authorize the use of military force.202

1.11.2.1 U.N. Member State Obligations With Respect to U.N. Security Council 

Decisions. Members of the United Nations have agreed to give the United Nations every 

assistance in any action it takes in accordance with the Charter and to refrain from giving 

assistance to any State against which the United Nations is taking preventive or enforcement 

action.203

Members of the United Nations have agreed to accept and carry out the decisions of the 

U.N. Security Council in accordance with the Charter.204 They have also agreed to join in 

affording mutual assistance in carrying out the measures decided upon by the U.N. Security 

Council.205

Moreover, in the event of a conflict between the obligations of the Members of the 

United Nations under the Charter and their obligations under any other international agreement, 

their obligations under the Charter prevail.206

1.11.3 Prohibition on Certain Uses of Force. Under Article 2(4) of the Charter of the 

United Nations, “[a]ll Members shall refrain in their international relations from the threat or use 

of force against the territorial integrity or political independence of any State, or in any other 

manner inconsistent with the Purposes of the United Nations.207 Numerous other treaties also 

 201 For example, U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc. S/RES/661 (1990) (“Affirming the inherent 

right of individual or collective self-defence, in response to the armed attack of Iraq against Kuwait, in accordance 

with Article 51 of the Charter,”); U.N. SECURITY COUNCIL RESOLUTION 1368, U.N. Doc. S/RES/1368 (2001) 

(“Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing

the inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemns

in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, 

Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to 

international peace and security;”).

202 Refer to § 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the 

Charter of the United Nations).

203 U.N. CHARTER art. 2(5) (“All Members shall give the United Nations every assistance in any action it takes in 

accordance with the present Charter, and shall refrain from giving assistance to any state against which the United 

Nations is taking preventive or enforcement action.”).

204 U.N. CHARTER art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the 

Security Council in accordance with the present Charter.”).

205 U.N. CHARTER art. 49 (“The Members of the United Nations shall join in affording mutual assistance in carrying 

out the measures decided upon by the Security Council.”).

206 U.N. CHARTER art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations 

under the present Charter and their obligations under any other international agreement, their obligations under the 

present Charter shall prevail.”).

207 U.N. CHARTER art. 2(4).
44

reflect these prohibitions on the threat or use of force.208 

The resort to force must have a legal basis in order not to violate these prohibitions. The 

legality of the use of force must be assessed in light of the particular facts and circumstances at 

issue.209

1.11.3.1 Aggression. Aggression is the most serious and dangerous form of the 

illegal use of force.210 Not every act of illegal use of force prohibited by Article 2(4) of the 

Charter constitutes aggression.211 Initiating a war of aggression is a serious international 

crime.212

U.N. General Assembly Resolution 3314 suggested considerations that the Security 

Council should bear in mind in determining whether an act of aggression had occurred.213 

 208 See, e.g., Inter-American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 STAT. 1681, 1700 (“The High 

Contracting Parties formally condemn war and undertake in their international relations not to resort to the threat or 

the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this 

Treaty.”); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928, 

46 STAT. 2343, 2345-46 (“The High Contracting Parties solemnly declare in the names of their respective peoples 

that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of 

national policy in their relations with one another.”).

209 See, e.g., William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviser 

for Political-Military Affairs, Department of State, Preemption, Iraq, and International Law, 97 AJIL 557 (2003) 

(“In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made 

it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it.”); 

Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC AND OFFICIAL 

PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 105 (1848) (“It is admitted that a just right of selfdefense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. 

But the extent of this right is a question to be judged of by the circumstances of each particular case;”).

210 Definition of Aggression, preamble ¶5, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX), 

Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“Considering also that, since aggression 

is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the 

existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its 

catastrophic consequences, aggression should be defined at the present stage.”).

211 Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of the 

Special Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the Special 

Committee at the concluding stage of the Special Committee’s session, U.N. General Assembly Official Records: 

Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (“Mr. 

ROSENSTOCK (United States of America) ... The fifth preambular paragraph, while recognizing the dangers 

which would flow from an illegal use of force amounting to aggression, correctly stated the view that not every act 

of force in violation of the Charter constituted aggression.”).

212 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 421 

(“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime 

differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”).

213 Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of the 

Special Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the Special 

Committee at the concluding stage of the Special Committee’s session, U.N. General Assembly Official Records: 

Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (“Mr. 

ROSENSTOCK (United States of America) ... The text that had been produced was a recommendation of the 

General Assembly for use by the Security Council. ... In article 2, the definition suggested the considerations which 

the Security Council should bear in mind in determining whether an act of aggression had occurred.”).
45

Although this resolution states basic principles as guidance for such determinations, it recognizes 

that whether an act of aggression has been committed must be considered in light of all the 

circumstances of each particular case.

214 

The United States has expressed the view that the definition of the act of aggression in 

the Kampala amendments to the Rome Statute does not reflect customary international law.215

1.11.4 Rationales for the Resort to Force. 

1.11.4.1 Use of Force in Self-Defense. The right to use force in self-defense is an 

inherent right of States.

216

1.11.4.2 Use of Force Authorized by the U.N. Security Council Acting Under 

Chapter VII of the Charter of the United Nations. Chapter VII of the Charter of the United 

Nations provides that the U.N. Security Council may take such action by air, sea, or land forces 

as may be necessary to maintain or restore international peace or security, including 

demonstrations, blockade, and other military operations.

217

1.11.4.3 Use of Force With the Consent of the Territorial State. Military action in 

the territory of another State is not a violation of Article 2(4)’s prohibition against the use of 

force against that State where it consents to such military action.218

1.11.4.4 Humanitarian Intervention. Violations of law of war treaties applicable

to non-international armed conflict generally have not been understood to provide an 

 214 Definition of Aggression, preamble ¶10, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX), 

Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“Believing that, although the question 

whether an act of aggression has been committed must be considered in the light of all the circumstances of each 

particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,”).

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

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

217 U.N. CHARTER art. 42 (“Should the Security Council consider that measures provided for in Article 41 would be 

inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary 

to maintain or restore international peace and security. Such action may include demonstrations, blockade, and 

other operations by air, sea, or land forces of Members of the United Nations.”).

218 For example, Davis R. Robinson, Legal Adviser, Department of State, Letter to Professor Edward Gordon, 

Chairman of the Committee on Grenada Section on International Law and Practice American Bar Association on 

The Legal Position of the United States on the Action taken in Grenada (Feb. 10, 1984), reprinted in 18 

INTERNATIONAL LAWYERS 381 (1984) (“In the case of the action taken in Grenada, the legal position of the United 

States was based upon the application of a combination of three well established principles of international law... 

(1) the lawful governmental authorities of a State may invite the assistance in its territory of military forces of other 

states or collective organizations in dealing with internal disorder as well as external threats.”); Statement of the 

U.S. Government, attached to Adlai E. Stevenson, Letter Dated 24 November 1964 From the Permanent 

Representative of the United States of America Addressed to the President of the Security Council, U.N. Doc. 

S/6062, Nov. 24, 1964 (“The United States Government has just received confirmation that a short time ago - early 

morning of 24 November in the Congo - a unit of Belgian paratroopers, carried by United States military transport 

planes, landed at Stanleyville in the Congo. This landing has been made (1) with the authorization of the 

Government of the Congo, (2) in conformity with our adherence to the Geneva Conventions, and (3) in exercise of 

our clear responsibility to protect United States citizens under the circumstances existing in the Stanleyville area.”).
46

independent basis for intervening in a State.219

Although the United Kingdom and certain other States have argued that intervention for 

humanitarian reasons may be a legal basis for the resort to force, the United States has not 

adopted this legal rationale.220 Consistent with this view, the United States did not adopt this 

theory as a legal rationale for NATO’s military action to address the humanitarian catastrophe in 

Kosovo in 1999, but rather expressed the view that such action was justified on the basis of a 

number of factors.221

Military action for humanitarian reasons may, however, be authorized by the U.N. 

Security Council.222

1.11.5 Use of Force in Self-Defense. Article 51 of the Charter of the United Nations 

provides that “[n]othing in the present Charter shall impair the inherent right of individual or 

collective self-defence if an armed attack occurs against a Member of the United Nations, until

the Security Council has taken measures necessary to maintain international peace and 

 219 Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed 

Groups Against Other States).

220 William H. Taft IV, Legal Adviser, Department of State, Role and Significance of International Law Governing 

the Use of Force in the New Global Context Confronting the United States After 9/11: remarks regarding the use of 

force under international law (Oct. 27, 2004) (“Of particular note, the idea that humanitarian catastrophes must be 

avoided has been asserted as a reason for rethinking what actions international law permits in a number of situations. 

NATO’s intervention in Kosovo in 1999 is a case to consider in this connection. In defending the legality of 

NATO’s actions, the United Kingdom and several other allies asserted a doctrine of humanitarian intervention, 

under which states have a right to use force if it is necessary to prevent genocide, a major loss of civilian life, or a 

large scale forced movement of a population, which would destabilize other states and threaten international peace 

and security. In this view, the humanitarian intervention doctrine is often presented as a necessary extension of 

humanitarian law as it has evolved since 1945. Significantly, the doctrine was invoked in the absence of 

authorization by the UN Security Council. The United States did not, however, adopt this theory as a basis for the 

NATO intervention in Kosovo, and instead pointed to a range of other factors to justify its participation in the 

Kosovo campaign.”).

221 David Andrews, Legal Adviser, Department of State, Oral Proceedings, May 11, 1999, Legality of Use of Force 

(Yugoslavia v. United States) I.C.J. 10 (¶1.7) (“As you have already heard, the actions of the Members of the NATO 

Alliance find their justification in a number of factors. These include: - The humanitarian catastrophe that has 

engulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing has forced many hundreds of 

thousands to flee their homes and has severely endangered their lives and well-being; - The acute threat of the 

actions of the Federal Republic of Yugoslavia to the security of neighbouring States, including threat posed by 

extremely heavy flows of refugees and armed incursions into their territories; - The serious violation of international 

humanitarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia, 

including widespread murder, disappearances, rape, theft and destruction of property; and, finally - The resolutions 

of the Security Council, which have determined that the actions of the Federal Republic of Yugoslavia constitute a 

threat to peace and security in the region and, pursuant to Chapter VII of the Charter, demanded a halt to such 

actions.”).

222 For example, U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc. S/RES/1973, ¶4 (Mar. 17, 2011) (“[This 

Resolution] [a]uthorizes Member States that have notified the Secretary-General, acting nationally or through 

regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary 

measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas 

under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation 

force of any form on any part of Libyan territory ... .”).
47

security.”223

The Charter of the United Nations was not intended to supersede a State’s inherent right 

of individual or collective self-defense in customary international law.224

To constitute legitimate self-defense under customary international law, it is generally 

understood that the defending State’s actions must be necessary.225 For example, reasonably 

available peaceful alternatives must be exhausted.226 In addition, the measures taken in selfdefense must be proportionate to the nature of the threat being addressed.227

1.11.5.1 Responding to an Imminent Threat of an Attack. The text of Article 51 

of the Charter of the United Nations refers to the right of self-defense “if an armed attack occurs 

against a Member of the United Nations.”228 Under customary international law, States had, and 

continue to have, the right to take measures in response to imminent attacks.229

1.11.5.2 Use of Force Versus Armed Attack. The United States has long taken the 

position that the inherent right of self-defense potentially applies against any illegal use of 

force.230 Others, however, would be inclined to draw more of a distinction between “armed 

 223 U.N. CHARTER art. 51.

224 Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 94 (1989) 

(“The United States rejects the notion that the U.N. Charter supersedes customary international law on the right of 

self-defense. Article 51 characterizes that right as ‘inherent’ in order to prevent its limitation based on any provision 

in the Charter. We have always construed the phrase ‘armed attack’ in a reasonable manner, consistent with a 

customary practice that enables any State effectively to protect itself and its citizens from every illegal use of force 

aimed at the State.”).

225 William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE 

JOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (“To constitute legitimate self-defense under customary 

international law, it is generally understood that the defending State’s actions must be both ‘necessary’ and 

‘proportional.’”).

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

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

228 U.N. CHARTER art. 51.

229 Lord Peter Henry Goldsmith, Attorney General, United Kingdom, Oral Answers to Questions, Apr. 21, 2004, 

HANSARD 660 HOUSE OF COMMONS DEBATES §§ 370-71 (“It is argued by some that the language of Article 51 

provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistent 

position of successive United Kingdom Governments over many years that the right of self-defence under 

international law includes the right to use force where an armed attack is imminent. It is clear that the language of 

Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of selfdefence that states enjoy under international law. ... It is not a new invention. The charter did not therefore affect 

the scope of the right of self-defence existing at that time in customary international law, which included the right to 

use force in anticipation of an imminent armed attack.”).

230 See Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 92-93 

(1989) (“The United States has long assumed that the inherent right of self defense potentially applies against any 

illegal use of force, and that it extends to any group or State that can properly be regarded as responsible for such 

activities. These assumptions are supported in customary practice.”). See also William H. Taft IV, Legal Adviser, 

Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295, 

300-01 (2004) (“A requirement that an attack reach a certain level of gravity before triggering a right of self-defense 

would make the use of force more rather than less likely, because it would encourage States to engage in a series of 
48

attacks” and uses of force that do not give rise to the right to use force in self-defense.231

1.11.5.3 Use of Force to Protect Nationals Abroad. A State’s right to use force in 

self-defense may be understood to include the right to use force to protect its nationals abroad.232 

The United States has taken action to protect U.S. nationals abroad when the government of the 

territory in which they are located was unwilling or unable to protect them.233 A State need not 

await actual violence against its nationals before taking such action if an attack against them is 

imminent.

234

1.11.5.4 Right of Self-Defense Against Non-State Actors. The inherent right of 

self-defense, recognized in Article 51 of the Charter of the United Nations, applies in response to 

any “armed attack,” not just attacks that originate with States.235 As with any other exercise of 

 

small-scale military attacks, in the hope that they could do so without being subject to defensive responses. 

Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force, 

their eventual response would likely be much greater, making it more difficult to prevent disputes from escalating 

into full-scale military conflicts.”).

231 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, 

Judgment, 1986 I.C.J. 14, 101 (¶191) (“As regards certain particular aspects of the principle in question, it will be 

necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less 

grave forms.”); id. at 126-27 (¶247) (“So far as regards the allegations of supply of arms by Nicaragua to the armed 

opposition in El Salvador, the Court has indicated that while the concept of an armed attack includes the despatch by 

one State of armed bands into the territory of another State, the supply of arms and other support to such bands 

cannot be equated with armed attack. Nevertheless, such activities may well constitute a breach of the principle of 

the non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly 

wrongful, but is of lesser gravity than an armed attack.”).

232 Ambassador William Scranton, U.S. Representative to the United Nations, Statement in the U.N. Security 

Council regarding Israeli action at Entebbe, Jul. 12, 1976, 1976 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 150 (“[T]here is a well-established right to use limited force for the protection of one’s own 

nationals from an imminent threat of injury or death in a situation where the State in whose territory they are located 

either is unwilling or unable to protect them. The right, flowing from the right of self defense, is limited to such use 

of force as is necessary and appropriate to protect threatened nationals from injury.”).

233 For example, Jimmy Carter, Letter to Thomas P. O’Neal, Jr., Speaker of the House of Representatives, and 

Warren G. Magnuson, President pro tempore of the Senate regarding the rescue attempt for American hostages in 

Iran, Apr. 26, 1980, 1980-I PUBLIC PAPERS OF THE PRESIDENTS 779 (“In carrying out this operation [to rescue the 

American hostages in the U.S. embassy in Tehran] the United States was acting wholly within its right, in 

accordance with Article 51 of the United Nations Charter, to protect and rescue its citizens where the government of 

the territory in which they are located is unwilling or unable to protect them.”).

234 Kenneth W. Dam, Deputy Secretary of State, Statement before the House Committee on Foreign Affairs, Nov. 2, 

1983, reprinted in 78 AJIL 200, 203-04 (1984) (“U.S. actions have been based on three legal grounds: ... Third, 

U.S. action to secure and evacuate endangered U.S. citizens on the island was undertaken in accordance with wellestablished principles of international law regarding the protection of one’s nationals. That the circumstances 

warranted this action has been amply documented by the returning students themselves. There is absolutely no 

requirement of international law that compelled the United States to await further deterioration of the situation that 

would have jeopardized a successful operation. Nor was the United States required to await actual violence against 

U.S. citizens before rescuing them from the anarchic and threatening conditions the students have described.”).

235 See, e.g., In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention 

Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (“Under 

international law, nations lawfully can use military force in an armed conflict against irregular terrorist groups such 

as al-Qaida. The United Nations Charter, for example, recognizes the inherent right of states to use force in self 

defense in response to any ‘armed attack,’ not just attacks that originate with states. United Nations Charter, art. 
49

the right of self-defense, actions taken in self-defense against non-State actors must comply with 

applicable international law.236

1.11.5.5 Right of Collective Self-Defense. Article 51 of the Charter of the United 

Nations also recognizes a right of States to engage in collective self-defense with a State that can

legitimately invoke its own right of national self-defense. Collective self-defense of a State must 

proceed with that State’s consent, although this consent need not necessarily be expressed in the 

form of an explicit request.

237

Some treaties include commitments by States to assist one another in collective selfdefense.238

1.11.5.6 Reporting to the U.N. Security Council. Measures taken in the exercise 

of national self-defense shall be immediately reported to the U.N. Security Council.239

 

51.”); U.S. Additional Response to the Request for Precautionary Measures—Detention of Enemy Combatants at 

Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITED 

STATES PRACTICE IN INTERNATIONAL LAW 1008, 1011-12 (“The terrorist attacks of September 11 were not ordinary 

criminal acts. ... The international community has clearly recognized the right of the United States and allied forces 

to resort to armed force in self-defense in response to these attacks. For instance, the United Nations explicitly 

recognized the ‘inherent right of individual and collective self-defence’ immediately following September 11. It is 

in this context that NATO and others recognized that the September 11 attacks constituted an ‘armed attack,’ a 

conclusion inherent in the UN Security Council’s recognition of the right of self-defense.”).

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

237 See also BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 675 (1994) (“Art. 51 of the 

Charter allows not only individual, but also collective self-defence. The latter is not, as the wording might suggest, 

restricted to a common, co-ordinated exercise of the right to individual self-defence by a number of states. ... It is 

not required for the exercise of the right of collective self-defence that the state invoking the right be under an 

obligation resulting from a treaty of assistance. Rather, it is sufficient, but also necessary, that the support be given 

with the consent of the attacked state. But this consent does not, as the ICJ states for the right of self-defence under 

customary law, need to be declared in the form of an explicit ‘request’.”).

238 For example, The North Atlantic Treaty, Washington, D.C., Apr. 4, 1949, art. 5 (“The Parties agree that an armed 

attack against one or more of them in Europe or North America shall be considered an attack against them all and 

consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or 

collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties 

so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, 

including the use of armed force, to restore and maintain the security of the North Atlantic area.”).

239 U.N. CHARTER art. 51 (“Measures taken by Members in the exercise of this right of self-defence shall be 

immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the 

Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain 

or restore international peace and security.”).
50

II – Principles

Chapter Contents

2.1 Introduction

2.2 Military Necessity

2.3 Humanity

2.4 Proportionality

2.5 Distinction

2.6 Honor

2.1 INTRODUCTION

Three interdependent principles – military necessity, humanity, and honor – provide the 

foundation for other law of war principles, such as proportionality and distinction, and most of 

the treaty and customary rules of the law of war.

This Chapter briefly addresses certain specific rules to illustrate these foundational 

principles. For more information about a specific rule, practitioners should refer to the crossreferenced section that addresses that rule.

1

2.1.1 Legal Principles as Part of International Law. General principles of law common to 

the major legal systems of the world are a recognized part of international law.2 Law of war 

principles have been understood to be included in this category of international law.3

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

2 See ICJ STATUTE art. 38(1)(c) (providing that “the general principles of law recognized by civilized nations” are a 

source of applicable law for the court); I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED 

STATES 24 (§102(1)(c)(4)) (1987) (including “general principles common to the major legal systems of the world,” 

among sources of international law); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815) (Marshall, C.J.) 

(ascertaining international law includes “resort to the great principles of reason and justice”).

3 See BOTHE, PARTSCH, & SOLF, NEW RULES 44 (AP I art. 1, ¶2.10) (“Following the original clause in the preamble 

of the 1899 IV. Hague Convention on Land Warfare (para. 9) and para. 4 of the denunciation clause in the 

Conventions (63/62/142/158) these principles are stated in the present text to be part of international law. They are 

‘general principles of law’ in the sense of Art. 38 of the Statute of the ICJ.”); Speech by Baron Descamps on the 

Rules of Law to be applied, Annex No. 1 to 14th Meeting (Private), held at the Peace Palace, the Hague, on July 

2nd, 1920, PERMANENT COURT OF INTERNATIONAL JUSTICE, ADVISORY COMMITTEE OF JURISTS, PROCÈS-VERBAUX 

OF THE PROCEEDINGS OF THE COMMITTEE: JUNE 16TH – JULY 24TH 1920 WITH ANNEXES 322, 323-24 (1920) (“The 

only question is, -- how to make unerring rules for the judge’s guidance. ... I allow him to take into consideration 

the legal conscience of civilised nations, which is illustrated so strikingly on certain occasions. ... [L]isten to this 

solemn declaration of the Powers, placed at the beginning of the Convention dealing with laws and customs of war 

on land: ‘Until a more complete code of the laws of war has been issued, the high contracting Parties deem it 

expedient to declare that, in cases not included in the Regulations adopted by them, populations and belligerents 

remain under the protection and the rule of the principles of the law of nations, as they result from the usages 

established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.’ ... I am 

convinced that the assembly of all the States does not and cannot intend, in dealing with the state of peace, to abjure 

principles which are clearly intended to be applied in war.”).
51

2.1.2 Uses of Law of War Principles. Law of war principles provide the foundation for 

the specific law of war rules. Legal principles, however, are not as specific as rules, and thus 

interpretations of how principles apply to a given situation may vary. 

Law of war principles: (1) help practitioners interpret and apply specific treaty or 

customary rules; (2) provide a general guide for conduct during war when no specific rule 

applies; and (3) work as interdependent and reinforcing parts of a coherent system.

2.1.2.1 Law of War Principles as an Aid in Interpreting and Applying Law of War 

Rules. Understanding law of war principles helps practitioners interpret and apply specific law 

of war rules. For example, the principle of military necessity has been incorporated into specific 

law of war rules.4 Similarly, the principle of humanity can assist in the proper interpretation and 

application of law of war rules that are based on humanitarian considerations.

5

2.1.2.2 Law of War Principles as a General Guide. When no specific rule 

applies, the principles of the law of war form the general guide for conduct during war. 

States have reflected this idea in certain treaty provisions, including the “Martens 

Clause,” which make clear that situations not covered by the treaty remain governed by 

principles of international law.

6

The considerable progress States have made in developing specific law of war rules, 

however, has lessened the need to rely solely on these principles to guide conduct during war.

7

2.1.2.3 Law of War Principles as a Coherent System. Law of war principles work 

as interdependent and reinforcing parts of a coherent system.

Military necessity justifies certain actions necessary to defeat the enemy as quickly and 

efficiently as possible.8

 Conversely, humanity forbids actions unnecessary to achieve that 

object.9

 Proportionality requires that even when actions may be justified by military necessity,

such actions not be unreasonable or excessive.

10 Distinction underpins the parties’ responsibility 

to comport their behavior with military necessity, humanity, and proportionality by requiring 

parties to a conflict to apply certain legal categories, principally the distinction between the 

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

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

6 Refer to § 19.8.3 (Martens Clause).

7 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 46-47 (“Where the general principles of the law of war have 

received—through the agreement of states—detailed application in the form of specific rules, the question of the 

proper interpretation of these general principles can only be answered by an examination of the former. Hence, to 

the extent that the conduct of war is increasingly subjected to such regulation resort to the general principles of the 

law of war must become, in turn, correspondingly less frequent. The reason for this is simply that the essential 

function of these general principles is to provide a guide for determining the legal status of weapons and methods of 

warfare where no more specific rule is applicable.”).

8 Refer to § 2.2 (Military Necessity).

9 Refer to § 2.3 (Humanity).

10 Refer to § 2.4 (Proportionality).
52

armed forces and the civilian population.

11 Lastly, honor supports the entire system and gives 

parties confidence in it.

12

2.2 MILITARY NECESSITY

Military necessity may be defined as the principle that justifies the use of all measures

needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the 

law of war. Military necessity has been defined in military publications,13 judicial decisions,

14

and scholarly works.

15

2.2.1 Military Necessity as a Justification. Military necessity justifies actions, such as 

destroying and seizing persons and property.16 Thus, military necessity underlies law of war 

 11 Refer to § 2.5 (Distinction).

12 Refer to § 2.6 (Honor).

13 See LIEBER CODE art. 14 (“Military necessity, as understood by modern civilized nations, consists in the necessity 

of those measures which are indispensable for securing the ends of the war, and which are lawful according to the 

modern law and usages of war.”); 1914 RULES OF LAND WARFARE ¶¶9-11 (“a belligerent is justified in applying any 

amount and any kind of force which is necessary for the purpose of the war; that is, the complete submission of the 

enemy at the earliest possible moment with the least expenditure of men and money. ... Military necessity justifies a 

resort to all measures which are indispensable for securing this object and which are not forbidden by the modern 

laws and customs of war.”); 1940 RULES OF LAND WARFARE ¶4a (“a belligerent is justified in applying any amount 

and any kind of force to compel the complete submission of the enemy with the least possible expenditure of time, 

life, and money.”); 1956 FM 27-10 (Change No. 1 1976) ¶3 (“that principle which justifies those measures not 

forbidden by international law which are indispensable for securing the complete submission of the enemy as soon 

as possible.”); 1958 UK MANUAL ¶3 ( “a belligerent is justified in applying compulsion and force of any kind, to the 

extent necessary for the realization of the purpose of war, that is, the complete submission of the enemy at the 

earliest possible moment with the least possible expenditure of men, resources, and money.”); 2004 UK MANUAL

¶2.2 (“Military necessity is now defined as ‘the principle whereby a belligerent has the right to apply any measures 

which are required to bring about the successful conclusion of a military operation and which are not forbidden by 

the laws of war.’ Put another way, a state engaged in an armed conflict may use that degree and kind of force, not 

otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the 

conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum 

expenditure of life and resources.”); NATO, Glossary of Terms and Definitions, AAP-6 at 2-M-6 (2009) (defining 

military necessity as “the principle whereby a belligerent has the right to apply any measures which are required to 

bring about the successful conclusion of a military operation and which are not forbidden by the laws of war.”).

14 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253 

(“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to 

compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”).

15 See GREENSPAN, MODERN LAW OF LAND WARFARE 313-14 (military necessity is “the right to apply that amount 

and kind of force which is necessary to compel the submission of the enemy with the least possible expenditure of 

time, life, and money); CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED 

BY THE UNITED STATES 299-300 (1922) (“Military necessity, as understood by the United States, justifies a resort to 

all measures which are indispensable to bring about the complete submission of the enemy by means of regulated 

violence and which are not forbidden by the modern laws and customs of war.”); WILLIAM EDWARD HALL, A

TREATISE ON INTERNATIONAL LAW 63 (§17) (A. Pearce Higgins, ed., 7th ed., 1917) (“When violence is permitted at 

all, the amount which is permissible is that which is necessary to attain the object proposed. The measure of the 

violence which is permitted in war is therefore that which is required to reduce the enemy to terms.”).

16 See LIEBER CODE art. 15 (“Military necessity admits of all destruction of life or limb of armed enemies, ... it 

allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of 

peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of 
53

concepts that explain when persons and property may be the object of attack, e.g., the concepts 

of “taking a direct part in hostilities”17 and “military objective.”18

Military necessity may justify not only violence and destruction, but also alternative 

means of subduing the enemy.

19 For example, military necessity may justify the capture of 

enemy persons,20 or non-forcible measures, such as propaganda and intelligence-gathering.21 

Military necessity also justifies certain incidental harms that inevitably result from the 

actions it justifies.

22 The extent to which military necessity justifies such harms is addressed by 

the principle of proportionality.23

2.2.2 Military Necessity and Law of War Rules. 

2.2.2.1 Military Necessity Does Not Justify Actions Prohibited by the Law of War. 

Military necessity does not justify actions that are prohibited by the law of war. 

From the late 19th Century through World War II, Germany asserted that military 

necessity could override specific law of war rules (Kriegsraeson geht vor Kriegsmanier –

“necessity in war overrules the manner of warfare”).24 This view was strongly criticized.25 Post-

 traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the 

appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of 

such deception as does not involve the breaking of good faith either positively pledged, regarding agreements 

entered into during the war, or supposed by the modern law of war to exist.”); United States v. List, et al. (The 

Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (“In general, [military necessity] 

sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his 

operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally 

unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar 

danger ... . It is lawful to destroy railways, lines of communication, or any other property that might be utilized by 

the enemy. Private homes and churches even may be destroyed if necessary for military operations.”).

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

18 Refer to § 5.6 (Military Objective).

19 For example, Abraham Lincoln, The Emancipation Proclamation, Jan. 1, 1863, reprinted in 12 STAT. 1268 

(justifying emancipation of slaves held in rebellious states as “warranted by the Constitution, upon military 

necessity”).

20 Refer to § 8.1.3.1 (Detention Authority).

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

22 See LIEBER CODE art. 15 (“Military necessity admits of all destruction of life or limb of ... persons whose 

destruction is incidentally unavoidable in the armed contests of the war;”); United States v. List, et al. (The Hostage 

Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (military necessity “permits the destruction of life 

of ... persons whose destruction is incidentally unavoidable by the armed conflicts of the war;”).

23 Refer to § 2.4 (Proportionality).

24 See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 231-32 (§69) (“In accordance with the German 

proverb, Kriegsraeson geht vor Kriegsmanier (necessity in war overrules the manner of warfare), many German 

authors before the First World War were maintaining that the laws of war lose their binding force in case of extreme 

necessity.”); United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 227 (“The truth remains that War Crimes were committed on a vast scale, never before seen in the history of 

war. ... There can be no doubt that the majority of them arose from the Nazi conception of ‘total war’, with which 
54

World War II war crimes tribunals rejected it as well.26 

Military necessity cannot justify departures from the law of war because States have 

crafted the law of war specifically with war’s exigencies in mind.27 In devising law of war rules, 

States considered military requirements.28 Thus, prohibitions on conduct in the law of war may 

be understood to reflect States’ determinations that such conduct is militarily unnecessary per se.

The fact that law of war rules are formulated specifically with military requirements in 

 the aggressive wars were waged. For in this conception of ‘total war’, the moral ideas underlying the conventions 

which seek to make war more humane are no longer regarded as having force or validity. Everything is made 

subordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties all alike are of no 

moment; and so, freed from the restraining influence of international law, the aggressive war is conducted by the 

Nazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Führer 

and his close associates thought them to be advantageous.”).

25 See, e.g., Elihu Root, Opening Address, 15 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 1, 

2 (1921) (“More important still is a fact which threatens the foundation of all international law. The doctrine of 

kriegsraison has not been destroyed. It was asserted by Bethman Hollweg at the beginning of the war when he 

sought to justify the plain and acknowledged violation of international law in the invasion of Belgium upon the 

ground of military necessity. The doctrine practically is that if a belligerent deems it necessary for the success of its 

military operations to violate a rule of international law, the violation is permissible. As the belligerent is to be the 

sole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore it 

whenever that is deemed to be for its military advantage. The alleged necessity in the case of the German invasion 

of Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attack 

France. Of course, if that doctrine is to be maintained, there is no more international law, for the doctrine cannot be 

confined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there are 

few rules of peaceful intercourse, the violation of which may not be alleged to have some possible bearing upon a

military advantage, and a law which may rightfully be set aside by those whom it is intended to restrain is no law at 

all.”).

26 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1255-

56 (“It is apparent from the evidence of these defendants that they considered military necessity, a matter to be 

determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are 

anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules.”); 

United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340 (rejecting defense counsel 

argument that Hague IV and Hague IV Reg. rules did not apply in cases of “total war”). See also Trial of Gunther 

Thiele and Georg Steinert, III U.N. LAW REPORTS 58-59 (U.S. Military Commission, Augsberg, Germany, Jun. 13, 

1945) (rejecting military necessity as a defense to the murder of a prisoner of war); United States v. Milch, II TRIALS 

OF WAR CRIMINALS BEFORE THE NMT 849-50 (Musmanno, J., concurring) (rejecting defense counsel argument that 

“total warfare” allowed suspension or abrogation of law of war rules).

27 1956 FM 27-10 (Change No. 1 1976) ¶3a (“Military necessity has been generally rejected as a defense for acts 

forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed 

with consideration for the concept of military necessity.”); United States v. Krupp, et al., IX TRIALS OF WAR 

CRIMINALS BEFORE THE NMT 1347 (“In short these rules and customs of warfare are designed specifically for all 

phases of war. They comprise the law for such emergency.”); Treaty of Amity and Commerce between His Majesty 

the King of Prussia and the United States of America, art. 24, Sept. 10, 1785, 18 STAT. 641, 647 (declaring that 

“neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or 

suspending this and next preceding article; but on the contrary, that the state of war is precisely that for which they 

are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of 

nature or nations.”).

28 See, e.g., HAGUE IV preamble ¶5 (“these provisions, the wording of which has been inspired by the desire to 

diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct 

for the belligerents in their mutual relations and in their relations with the inhabitants.”) (emphasis added).
55

mind has played an important part in the doctrine that the law of war is the lex specialis

governing armed conflict.29

2.2.2.2 Incorporation of Military Necessity Into Law of War Rules. Although 

military necessity cannot justify actions that have been prohibited by the law of war, some law of 

war rules expressly incorporate military necessity. 

For example, certain law of war rules specify that departures from what would otherwise 

be the rule are permissible when absolutely or imperatively necessary. In these cases, military 

necessity must not be conflated with mere convenience.30 Examples of rules incorporating the 

concept of absolute or imperative necessity include the following:

• The activities of the representatives or delegates of the Protecting Powers shall only be 

restricted as an exceptional and temporary measure when this is rendered necessary by 

imperative military necessities.

31

• The internment or placing in assigned residence of protected persons may be ordered 

only if the security of the Detaining Power makes it absolutely necessary.

32 

• If the Occupying Power considers it necessary, for imperative reasons of security, to take 

safety measures concerning protected persons, it may, at the most, subject them to 

assigned residence or to internment.33 

• The seizure or destruction of enemy property must be imperatively demanded by the 

necessities of war.

34

Certain law of war rules may direct that persons comply with an obligation, but only to 

the extent feasible or consistent with military necessity. Examples of rules incorporating the

concept of feasibility or necessity include the following:

• Certain affirmative duties to take feasible precautions to reduce the risk of harm to the 

 29 Refer to § 1.3.2.1 (The Law of War as the Lex Specialis Governing Armed Conflict).

30 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252 

(rejecting defendants’ “plea of military necessity, a term which they confuse with convenience and strategical 

interests.”); General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the 

Protection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (explaining that 

although “the phrase ‘military necessity’ is sometimes used where it would be more truthful to speak of military 

convenience or even personal convenience,” military necessity should not “cloak slackness or indifference” to 

discerning whether law of war obligations, such as the protection of cultural property, may be fulfilled without any 

detriment to operational needs).

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

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

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

34 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard); § 11.18.2 (Seizure or Destruction of Property 

During Occupation – Application of the Military Necessity Standard).
56

civilian population and other protected persons and objects.35

• Military medical and religious personnel, if their retention is not indispensable, are to be 

returned to the party to the conflict to which they belong as soon as a road is open for 

their return and military requirements permit.

36 

• Whenever military considerations permit, POW camps shall be indicated in the day time 

by the letters PW or PG, placed so as to be clearly visible from the air.37 

• Should military necessity require the quantity of relief shipments to civilian internees to 

be limited, due notice thereof shall be given to the Protecting Power and to the 

International Committee of the Red Cross, or to any other organization giving assistance 

to the internees and responsible for the forwarding of such shipments.38

2.2.3 Applying Military Necessity. Military necessity is a difficult concept to define and 

apply.39 What is necessary in war may depend closely on the specific facts and circumstances of 

a given situation, and different people often assess military necessity differently. The limited and 

unreliable nature of information available during war compounds this difficulty in evaluating 

what is necessary.

40 This difficulty runs throughout the law of war, since military necessity is 

itself important and is an element of many other principles and rules.

The law of war seeks to ameliorate these difficulties in applying military necessity by: 

(1) permitting consideration of the broader imperatives of winning the war as quickly and 

efficiently as possible; (2) recognizing that certain types of actions are, as a general matter, 

inherently militarily necessary; and (3) recognizing that persons must assess the military 

necessity of an action in good faith based on the information available to them at the relevant 

time and that they cannot be judged based on information that subsequently comes to light.

2.2.3.1 Consideration of the Broader Imperatives of Winning the War. In 

evaluating military necessity, one may consider the broader imperatives of winning the war as 

quickly and efficiently as possible and is not restricted to considering only the demands of the 

specific situation.

This is the case because military necessity justifies those measures necessary to achieve 

the object of war, and the object of war is not simply to prevail, but to prevail as quickly and 

efficiently as possible.

41 Thus, military necessity may consider the broader imperatives of 

 35 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

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

37 Refer to § 9.11.4.3 (Marking of POW Camps).

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

39 See SPAIGHT, WAR RIGHTS ON LAND 113 (“There is no conception in International Law more elusive, protean, 

wholly unsatisfactory, than that of war necessity.”).

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

41 Refer to § 1.4.1 (Object of War).
57

winning the war and not only the demands of the immediate situation. For example, in assessing 

the military advantage of attacking an object, one may consider the entire war strategy rather 

than only the potential tactical gains from attacking that object.42 An interpretation of military 

necessity that only permitted consideration of the immediate situation could prolong the fighting 

and increase the overall suffering caused by the war.

43

Some commentators have argued that military necessity should be interpreted so as to 

permit only what is actually necessary in the prevailing circumstances, such as by requiring 

commanders, if possible, to seek to capture or wound enemy combatants rather than to make 

them the object of attack.44 This interpretation, however, does not reflect customary 

international law or treaty law applicable to DoD personnel.45 For example, the law of war does 

not require that enemy combatants be warned before being made the object of attack, nor does 

the law of war require that enemy combatants be given an opportunity to surrender before being 

made the object of attack.

46 Moreover, the law of war may justify the use of overwhelming force 

against enemy military objectives.

47

2.2.3.2 Recognizing Certain Types of Actions as Generally Inherently Militarily 

 42 Refer to § 5.6.7.3 (Definite Military Advantage); § 5.12.2.1 (Considering the Advantage From the Attack as a 

Whole – In the Operational and Strategic Context). 

43 See, e.g., Department of Defense, National Military Strategy of the United States, 10 (Jan. 1992) (“Once a 

decision for military action has been made, half-measures and confused objectives extract a severe price in the form 

of a protracted conflict which can cause needless waste of human lives and material resources, a divided nation at 

home, and defeat. Therefore, one of the essential elements of our national military strategy is the ability to rapidly 

assemble the forces needed to win -- the concept of applying decisive force to overwhelm our adversaries and 

thereby terminate conflicts swiftly with a minimum loss of life.”); LIEBER CODE art. 29 (“The more vigorously wars 

are pursued, the better it is for humanity. Sharp wars are brief.”); Count von Moltke, letter to Professor Bluntschli, 

Dec. 11, 1880, reprinted in G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 19 footnote 1 (1908) (“The 

greatest kindness in war is to bring it to a speedy conclusion.”).

44 See, e.g., Nils Melzer, Legal Adviser, International Committee of the Red Cross, Interpretive Guidance on the 

Notion of Direct Participation in Hostilities Under International Humanitarian Law, 79 (May 2009) (“In 

conjunction, the principles of military necessity and of humanity reduce the sum total of permissible military action 

from that which IHL does not expressly prohibit to that which is actually necessary for the accomplishment of a 

legitimate military purpose in the prevailing circumstances.”) (emphasis added); JEAN PICTET, DEVELOPMENT AND 

PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 75-76 (1985) (“If we can put a soldier out of action by 

capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill 

him.”).

45 See, e.g., W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of 

the Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3419 (“In the employment of military forces, the phrase 

‘capture or kill’ carries the same meaning or connotation in peacetime as it does in wartime. There is no obligation 

to attempt capture rather than attack of an enemy. In some cases, it may be preferable to utilize ground forces in 

order to capture, e.g., a known terrorist. However, where the risk to U.S. forces is deemed too great, if the President 

has determined that the individual[s] in question pose such a threat to U.S. citizens or the national security interests 

of the United States as to require the use of military force, it would be legally permissible to employ, e.g., an 

airstrike against that individual or group rather than attempt his, her, or their capture, and would not violate the 

prohibition on assassination.”).

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

47 Refer to § 5.4.6 (Force That May Be Applied Against Military Objectives).
58

Necessary. The law of war recognizes that certain types of actions are, as a general matter, 

inherently militarily necessary.

48 For example, attacking enemy combatants is generally 

lawful.49 Similarly, the internment of enemy POWs is generally lawful.50 Such rules may be 

viewed as an example of how, when specific rules are applicable, there is less need to resort to

fundamental law of war principles as a general guide for conduct during war.51

2.2.3.3 Good Faith Evaluation of Military Necessity Based on the Available 

Information. In what is sometimes called the “Rendulic Rule,” the law of war recognizes that 

persons must assess the military necessity of an action based on the information available to 

them at that time; they cannot be judged based on information that subsequently comes to light.52

2.3 HUMANITY

Humanity may be defined as the principle that forbids the infliction of suffering, injury, 

or destruction unnecessary to accomplish a legitimate military purpose.

53

2.3.1 Humanity as a Prohibition. Although military necessity justifies certain actions 

necessary to defeat the enemy as quickly and efficiently as possible, military necessity cannot 

justify actions not necessary to achieve this purpose, such as cruelty or wanton violence.54 

Moreover, once a military purpose has been achieved, inflicting more suffering is unnecessary

 48 See VATTEL, THE LAW OF NATIONS 295 (3.9.173) (explaining that the law of war seeks to avoid contentious 

disputes between belligerents about whether actions are militarily necessary by establishing “general rules 

independent of circumstances and of certain and easy application” and thus “permits or tolerates every act which in 

its essential nature is adapted to attaining the end of war; and it does not stop to consider whether the act was 

unnecessary, useless, or superfluous in a given case unless there is the clearest evidence that an exception should be 

made in that instance”).

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

50 Refer to § 9.11.1 (Internment in POW Camps).

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

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

53 See, e.g., 2001 CANADIAN MANUAL ¶202(6) (humanity “forbids the infliction of suffering, injury or destruction 

not actually necessary for the accomplishment of legitimate military purposes.”); 2004 UK MANUAL ¶2.4

(“Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment 

of legitimate military purposes.”); GREENSPAN, MODERN LAW OF LAND WARFARE 315 (humanity “forbids the 

employment of all such kinds and degrees of violence as are not necessary for the purpose of the war”); 1958 UK

MANUAL ¶3 (humanity is the principle “according to which kinds and degrees of violence which are not necessary 

for the purpose of war are not permitted to a belligerent;”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 

227 (§67) (Humanity “postulates that all such kinds and degrees of violence as are not necessary for the 

overpowering of the opponent should not be permitted to a belligerent.”); 1940 RULES OF LAND WARFARE ¶4b 

(defining the principle of humanity as “prohibiting employment of any such kind or degree of violence as is not 

actually necessary for the purpose of the war”); 1914 RULES OF LAND WARFARE ¶9 (The principle of humanity 

“says that all such kinds and degrees of violence as are not necessary for the purpose of war are not permitted to a 

belligerent.”).

54 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 

(“[Military necessity] does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction 

of a lust to kill. ... It does not admit the wanton devastation of a district or the willful infliction of suffering upon its 

inhabitants for the sake of suffering alone.”); LIEBER CODE art. 16 (“Military necessity does not admit to cruelty --

that is, the infliction of suffering for the sake of suffering or for revenge, ... .”).
59

and should be avoided. For example, if an enemy combatant has been placed hors de combat

(e.g., incapacitated by being severely wounded or captured), no military purpose is served by 

continuing to attack him or her.

55 Thus, the principle of humanity forbids making enemy 

combatants who have been placed hors de combat the object of attack.56 Similarly, the principle 

of humanity has been viewed as the source of the civilian population’s immunity from being 

made the object of attack because their inoffensive and harmless character means that there is no 

military purpose served by attacking them.

57

2.3.1.1 Relationship Between the Principles of Humanity and Military Necessity. 

Humanity is related to military necessity, and these principles logically complement one another. 

Humanity may be viewed as the logical inverse of the principle of military necessity. If 

certain necessary actions are justified, then certain unnecessary actions are prohibited. The 

principle of humanity is an example of how the concept of necessity can function as a limitation

as well as a justification.

58

Because humanity forbids those actions that are unnecessary, the principle of humanity is 

not in tension with military effectiveness, but instead reinforces military effectiveness.

59

2.3.2 Humanity and Law of War Rules. Humanity animates certain law of war rules, 

including: 

• fundamental safeguards for persons who fall into the hands of the enemy;60

• protections for the civilian population and civilian objects;

61

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

62

 55 See 2004 UK MANUAL ¶2.4.1 (“The principle of humanity is based on the notion that once a military purpose has 

been achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out of 

action by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. For 

the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects 

from attack because civilians and civilian objects make no contribution to military action.”).

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

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

58 Cf. Ex parte Milligan, 71 U.S. 2, 127 (1866) (“If, in foreign invasion or civil war, the courts are actually closed, 

and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, 

where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to 

preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by 

martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if 

this government is continued after the courts are reinstated, it is a gross usurpation of power.”) (emphasis added).

59 Refer to § 18.2.1 (Reinforcing Military Effectiveness).

60 Refer to § 8.2 (Humane Treatment of Detainees); § 9.5 (Humane Treatment and Basic Protections for POWs); 

§ 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

61 Refer to § 5.2 (Overview of Rules for the Protection of Civilians).
60

• prohibitions on weapons that are calculated to cause superfluous injury;63 and 

• prohibitions on weapons that are inherently indiscriminate.64

The principle of humanity may help interpret or apply these and other law of war rules. 

For example, the requirement that POWs be interned only in premises located on land has been 

understood not to prohibit POW detention aboard ships pending the establishment of suitable 

facilities on land, if detention aboard ships provides the most appropriate living conditions for 

POWs.65 Similarly, the U.S. reservation to CCW Protocol III on Incendiary Weapons makes 

clear that U.S. forces may use incendiary weapons against military objectives located in 

concentrations of civilians where it is judged that such use would cause fewer casualties and/or 

less collateral damage than alternative weapons.66

2.4 PROPORTIONALITY

Proportionality may be defined as the principle that even where one is justified in acting,

one must not act in a way that is unreasonable or excessive.

67 

Proportionality has also been viewed as a legal restatement of the military concept of 

economy of force.68

2.4.1 Proportionality as a Limit on the Exercise of a Right. 

2.4.1.1 Justification in Acting. Proportionality is implicated in cases in which 

one is justified in acting. In jus in bello, for example, military necessity justifies making military 

objectives, such as enemy combatants, the object of attack. So, an attack on enemy combatants 

that incidentally damages civilian property would raise proportionality considerations. On the 

other hand, where there is no justification for acting, such as unlawful attacks directed against 

 62 Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel); § 7.10 (Military 

Medical Units and Facilities); § 7.11 (Ground Transport); § 7.12 (Hospital Ships, Sick-Bays in Warships, and 

Coastal Rescue Craft); § 7.14 (Military Medical Aircraft).

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

64 Refer to § 6.7 (Inherently Indiscriminate Weapons).

65 Refer to § 9.11.3.1 (Location on Land).

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

67 See Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC AND 

OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 110 (1848) (explaining that even actions taken 

in self-defense should not be “unreasonable or excessive” since such actions “justified by the necessity of selfdefense, must be limited by that necessity and kept clearly within it”). See also GROTIUS, LAW OF WAR & PEACE

601 (3.1.4.2) (“we must also beware of what happens, and what we foresee may happen, beyond our purpose, unless 

the good which our action has in view is much greater than the evil which is feared, or, greater than the fear of the 

evil.”); VATTEL, THE LAW OF NATIONS 279 (3.8.137) (explaining that a Sovereign has “the right to make war upon 

his fellow-men as a matter of necessity, and as a remedy,” but the Sovereign should not “push the remedy beyond its 

just limits,” and should “be careful not to make it more severe or more disastrous to mankind than the care of his 

own safety and the defense of his rights require.”).

68 Refer to § 5.12.3.1 (The Military Concept of Economy of Force).
61

the civilian population, a proportionality analysis would not be necessary to reach the conclusion 

that the attack would be unlawful.

2.4.1.2 Unreasonable or Excessive. Proportionality generally weighs the 

justification for acting against the expected harms to determine whether the latter are 

disproportionate in comparison to the former. In war, incidental damage to the civilian

population and civilian objects is unfortunate and tragic, but inevitable.69 Thus, applying the 

principle of proportionality in conducting attacks does not require that no incidental damage 

result from attacks.70 Rather, this principle creates obligations to refrain from attacks in which 

the expected harm incidental to such attacks would be excessive in relation to the concrete and 

direct military advantage anticipated to be gained and to take feasible precautions in planning 

and conducting attacks to reduce the risk of harm to civilians and other persons and objects 

protected from being made the object of attack.

71

Under the law of war, judgments of proportionality often involve difficult and subjective 

comparisons.72 Recognizing these difficulties, States have declined to use the term 

“proportionality” in law of war treaties because it could incorrectly imply an equilibrium 

between considerations or suggest that a precise comparison between them is possible.73

2.4.2 Examples Where Proportionality Is Reflected in Law of War Rules. The principle 

of proportionality is reflected in many areas in the law of war.

Proportionality is often used to refer to the jus in bello prohibition on attacks expected to 

cause excessive incidental harm.

74 However, the principle of proportionality described in a more 

general sense in this section also underlies the affirmative duties to take feasible precautions for 

the protection of civilians and other protected persons and objects.75 These obligations apply 

both in conducting attacks and to the party subject to attack.76 Proportionality also plays a role 

in assessing whether weapons are prohibited because they are calculated to cause unnecessary 

 69 Refer to § 1.4.2 (Nature of War).

70 Refer to § 5.10 (Proportionality in Conducting Attacks).

71 Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm); § 5.11

(Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of Harm to 

Protected Persons and Objects).

72 Refer to § 5.10.2.2 (Subjective Aspects of the Decisions and Judgments Required by the Principle of 

Proportionality). Compare § 2.2.3 (Applying Military Necessity).

73 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 309-10 (AP I art. 51, ¶2.6.2) (describing how some government 

delegations in the 1974-1977 Diplomatic Conference opposed incorporation of the term “proportionality” or 

acknowledgement of a law of war “rule” of proportionality in AP I and AP II).

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

75 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

76 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects); § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected 

Persons and Objects by the Party Subject to Attack).
62

suffering.77

In jus ad bellum, proportionality requires that the State’s means in resorting to force be 

proportionate to its just cause in using force, such as the threat that the State seeks to address.78 

Proportionality is also a requirement for reprisals, which must respond in a proportionate manner 

to the preceding illegal act by the party against which they are taken.

79

2.5 DISTINCTION

Distinction, sometimes called discrimination, obliges parties to a conflict to distinguish

principally between the armed forces and the civilian population, and between unprotected and 

protected objects.80

Distinction may be understood as encompassing two sets of reinforcing duties. Parties to 

a conflict must apply a framework of legal classes for persons and objects by: (1) discriminating 

in conducting attacks against the enemy; and (2) distinguishing a party’s own persons and 

objects.

2.5.1 Distinction as a Framework of Legal Classes. Distinction requires parties to a 

conflict to apply a framework of legal classes for persons and objects, each class characterized 

by different rights, duties, and liabilities.

Principally, distinction seeks to separate the armed forces and the civilian population.

81 

There are, however, certain special cases, such as military medical and religious personnel, who 

may be treated like a combatant for one purpose (e.g., detention) but like a civilian for another 

purpose (e.g., not being made the object of attack).82 However, for any particular legal purpose, 

a person may not claim the distinct rights afforded to both combatants and civilians at the same 

 77 Refer to § 6.6.3.3 (Clearly Disproportionate).

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

79 Refer to § 18.18.2.4 (Proportionality in Reprisal).

80 See, e.g., J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 

22, 1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals 

certain general principles including the following: ... (c). That a distinction must be made at all times between 

persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared 

as much as possible. These general principles were recognized in a resolution unanimously adopted by the United 

Nations General Assembly in its Resolution dated 13 January 1969 (Resolution 2444 (XXIII)). We regard them as 

declaratory of existing customary international law.”); Ex parte Quirin, 317 U.S. 1, 30 (1942) (“By universal 

agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of 

belligerent nations,”); 2004 UK MANUAL ¶2.5 (“Since military operations are to be conducted only against the 

enemy’s armed forces and military objectives, there must be a clear distinction between the armed forces and 

civilians, or between combatants and non-combatants, and between objects that might legitimately be attacked and 

those that are protected from attack.”). Consider AP I art. 48 (“In order to ensure respect for and protection of the 

civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian 

population and combatants and between civilian objects and military objectives and accordingly shall direct their 

operations only against military objectives.”).

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

82 Refer to § 4.2.3 (Mixed Cases).
63

time.83

2.5.2 Discriminating in Conducting Attacks Against the Enemy. Distinction requires 

parties to a conflict to discriminate in conducting attacks against the enemy.

84 On the one hand, 

consistent with military necessity, parties may make enemy combatants and other military 

objectives the object of attack.85 On the other hand, consistent with humanity, parties may not 

make the civilian population and other protected persons and objects the object of attack.86 

Moreover, persons using force must discriminate between legitimate and illegitimate objects of 

attack in good faith based on the information available to them at the time.

87

2.5.3 Distinguishing a Party’s Own Persons and Objects. Distinction enjoins the party 

controlling the population88 to use its best efforts to distinguish or separate its military forces and 

war-making activities from members of the civilian population to the maximum extent feasible 

so that civilian casualties and damage to civilian objects incidental to attacks on military 

objectives will be minimized as much as possible.

89

Parties to a conflict must: (1) take certain measures to help ensure that military forces 

and civilians can be visually distinguished from one another; (2) physically separate, as feasible,

their military objectives from the civilian population and other protected persons and objects;

and (3) refrain from the misuse of protected persons and objects to shield military objectives.

2.5.3.1 Measures to Help Ensure That Military Forces and Civilians Are Visually 

Distinguishable From One Another. Parties to a conflict must take certain measures, in offense 

or defense, to help ensure that military forces and civilians can be visually distinguished from 

one another.

First, parties to a conflict must not disguise their armed forces as civilians or as other 

protected categories of persons in order to kill or wound opposing forces.90 Second, other rules 

 83 Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the 

Same Time).

84 Refer to § 5.5 (Discrimination in Conducting Attacks).

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

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

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

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

89 See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 

1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals 

certain general principles including the following: ... (c). That a distinction must be made at all times between 

persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared 

as much as possible. ... The principle in (c) addresses primarily the Party exercising control over members of the 

civilian population. This principle recognizes the interdependence of the civilian community with the overall war 

effort of a modern society. But its application enjoins the party controlling the population to use its best efforts to 

distinguish or separate its military forces and war making activities from members of the civilian population to the 

maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military 

objectives, will be minimized as much as possible.”).

90 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).
64

obligate parties to mark protected persons and objects to help ensure they receive the protections 

of that status.91 Third, certain rules encourage parties to a conflict to identify certain persons and 

objects as unprotected. For example, during international armed conflict, members of organized 

resistance movements must, inter alia, wear fixed distinctive signs visible at a distance and carry 

arms openly to distinguish themselves from the civilian population in order for members of their 

group to receive POW status.

92

2.5.3.2 Feasible Measures to Separate Physically a Party’s Own Military 

Objectives From the Civilian Population and Other Protected Persons and Objects. Distinction

also creates obligations for parties to a conflict to take feasible measures to separate physically 

their own military objectives from the civilian population and other protected persons and 

objects.

93 

For example, it may be appropriate to evacuate civilians from danger areas.94 Similarly, 

if feasible, military commanders should avoid placing military objectives in densely populated 

areas.95 In addition, it may be appropriate to establish zones where civilians and other protected 

persons may seek refuge.96

2.5.3.3 Refrain From the Misuse of Protected Persons and Objects to Shield 

Military Objectives. Parties to a conflict must refrain from the misuse of civilians and other 

protected persons and objects to shield their own military objectives.

97 For example, it is 

prohibited to take hostages or otherwise to endanger deliberately protected persons or objects for 

the purpose of deterring enemy military operations.

Misusing protected persons and objects to shield military objectives also offends honor

because it constitutes a breach of trust with the enemy and thus undermines respect for the law of 

war.

98

2.5.4 Misconceptions About Distinction. Distinction seeks to ensure that protected and 

unprotected categories are distinct from one another, not distinct in the abstract. For example, 

using camouflage is consistent with distinction because foliage is not a protected category and 

because civilians generally do not wear camouflage.

99 Similarly, U.S. forces have worn nonstandard uniforms to blend with local forces while remaining distinct from the civilian 

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

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

93 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

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

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

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

97 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

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

99 Refer to § 5.25.2 (Examples of Ruses), footnote 799 and accompanying text.
65

population.100

Distinction addresses the different rights, duties, and liabilities of the categories; it does 

not require that a particular person or object fall within a particular category. For example, the 

principle of distinction does not prohibit an otherwise civilian object from being used for military 

purposes, thereby turning it into a military objective.

101 However, if such an object were seized 

from the enemy, such seizure would have to have been imperatively demanded by the necessities 

of war.102 Similarly, persons with medical training or who provide medical care on the 

battlefield are not necessarily military medical personnel and need not be identified as such.

103 

Rather, a State may reserve the ability to use these persons as combatants by refraining from 

designating them as exclusively engaged in medical activities.

2.5.5 Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a 

Party’s Own Persons and Objects. Discriminating in conducting attacks against the enemy and 

distinguishing a party’s own persons and objects reinforce one another. 

A party is not relieved of its obligations to discriminate in conducting attacks by the 

failures of its adversary to distinguish its military objectives from protected persons and 

objects.104 Nonetheless, the practical ability of a party to a conflict to discriminate in conducting 

attacks often depends on the degree to which its enemy has distinguished its military objectives 

from its protected persons and objects. For example, if enemy forces intermingle with civilians,

then a party may be less able to avoid incidentally harming the civilian population. 

In addition, the degree to which an enemy force in fact discriminates in conducting 

attacks may affect whether a party distinguishes its protected persons and objects from its 

military objectives. For example, if enemy forces do not respect the red cross emblem, but 

instead specifically attack persons wearing it, then the party receiving these attacks is less likely 

to distinguish its medical personnel and transports.

105 Similarly, if insurgents seek to attack 

civilians in a non-international armed conflict, positioning military forces near the civilian 

population may be essential to protecting the civilian population.106

2.6 HONOR

Honor demands a certain amount of fairness in offense and defense and a certain mutual 

 100 Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

101 Refer to § 5.16.1 (Protected Persons and Objects).

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

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

104 Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to 

Discriminate in Conducting Attacks).

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

106 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect 

Them).
66

respect between opposing military forces.107

2.6.1 Honor – Background and Notes on Terminology. Honor has been vital to the 

development of the law of war, which was preceded by warriors’ codes of ethical behavior.

108 

U.S. military canons of personal conduct continue to emphasize the importance of honor as a 

core value. Honor as a core value and other ethical norms continue to be vital as a medium for 

the implementation of the law of war.109

Honor has also been called chivalry. Chivalry is often associated with a specific 

historical context—a code of behavior for knights in Europe during the Middle Ages. Rather 

than refer to this specific context, the term honor is used in this manual to indicate more clearly 

that the law of war principle of honor draws from warriors’ codes from a variety of cultures and 

time periods.

2.6.2 Certain Amount of Fairness in Offense and Defense. Honor requires a certain 

amount of fairness in offense and defense. Honor forbids resort to means, expedients, or conduct 

 107 See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 227 (§67) (chivalry “arose in the Middle Ages 

and introduced a certain amount of fairness in offence and defence, and a certain mutual respect”); 1958 UK

MANUAL ¶3 (“The development of the law of war has been determined by three principles: ... and thirdly, the 

principle of chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual 

respect between the opposing forces.”); 1914 RULES OF LAND WARFARE ¶9 (“The development of the laws and 

usages of war is determined by three principles. ... Third, the principle of chivalry, which demands a certain amount 

of fairness in offense and defense and a certain mutual respect between opposing forces.”); UNITED KINGDOM WAR 

OFFICE, MANUAL OF MILITARY LAW, Chapter XIV, The Laws and Usages of War on Land, 234 (¶3) (1914) (“The

development of the laws and usages of war is determined by three principles. ... And there is, thirdly, the principle 

of chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual respect 

between the opposing forces.”).

108 See, e.g., LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 20-23 (2000) (describing references 

to warrior codes from ancient Israel, China, India, Greece, Rome, and Islam).

109 John Keegan, If you won’t, we won’t: Honour and the decencies of battle, THE TIMES LITERARY SUPPLEMENT, 

Issue 4834, 11 (Nov. 24, 1995; London, England) (“In the most perceptive sentence in The Laws of War, Adam 

Roberts observes, during his survey of the effect of the Hague Conventions of 1895 and 1907, that ‘the experience

of land war in two world wars must raise a question as to whether formal legal codification is necessarily superior to 

notions of custom, honour, professional standards, and natural law’ in making for battlefield decencies. He might 

have made his point more emphatically. There is no substitute for honour as a medium of enforcing decency on the 

battlefield, never has been and never will be. There are no judges, more to the point, no policemen at the place 

where death is done in combat; that may be, in fact, the intended and all too often true, meaning of ‘silent leges inter 

arma’. All turns on the values of the junior leader present at the moment when the opponent’s capacity or will to 

resist fails, he ceases to be a combatant and he must hope for the mercy of the suddenly stronger.”); for example, 

MORAL COURAGE IN COMBAT: THE MY LAI STORY, Lecture by Hugh Thompson, 26 (U.S. Naval Academy Center 

for Professional Military Ethics 2003) (“Question Do you attribute your ability to see through the moral fog that 

day, better than those who made the massacre at My Lai happen, to any prior military training or experience? Mr. 

Thompson No, I don’t believe it was any military training, because I had been through the training that everybody 

else had been. We had a 50-minute class of instruction on the Geneva Convention, a 50-minute class of instruction 

on the Code of Conduct, and a 50-minute class of instruction on the rules of engagement. ... But [my parents] 

always taught me to help the underdog. Don’t be a bully and live by the golden rule. That golden rule says so 

much, and it’s so simple and so basic. You know, I can’t say it was a leadership 405 or whatever. I just think it was 

my parents, and they taught me right from wrong.”).
67

that would constitute a breach of trust with the enemy.

110

2.6.2.1 Acceptance That Belligerent Rights Are Not Unlimited. In requiring a 

certain amount of fairness in offense and defense, honor reflects the principle that parties to a 

conflict must accept that certain limits exist on their ability to conduct hostilities. For example, 

parties to the conflict must accept that the right of belligerents to adopt means of injuring the 

enemy is not unlimited.

111 Here, honor does not address what those limits are so much as 

requires that parties accept that there are legal limits that govern their conduct of hostilities.

112 

This acceptance is a prerequisite for the existence and operation of the law of war in the way that 

the principle of pacta sunt servanda (treaties are binding on parties and must be performed by 

them in good faith) provides a necessary foundation for treaties to exist and operate as 

instruments that are legally binding on States.

113

Thus, honor may be understood to provide a foundation for obligations that help enforce 

and implement the law of war or special agreements between belligerents during armed 

conflict.114 For example, honor may be understood to provide the foundation for the requirement 

for persons to comply with the law of war in good faith.

115 Similarly, POWs are bound to adhere 

to paroles on their personal honor.116

2.6.2.2 Prohibition on Conduct That Breaches Trust With the Enemy. In

requiring a certain amount of fairness in offense and defense, honor also forbids resort to means, 

expedients, or conduct that would constitute a breach of trust with the enemy. In particular, 

honor requires a party to a conflict to refrain from taking advantage of its opponent’s adherence 

to the law by falsely claiming the law’s protections.

Honor forbids such conduct because it may: (1) undermine the protections afforded by 

the law of war; (2) impair non-hostile relations between opposing belligerents; and (3) damage 

the basis for the restoration of peace short of complete annihilation of one belligerent by 

 110 1940 RULES OF LAND WARFARE ¶4(c) (chivalry “denounces and forbids resort to dishonorable means, 

expedients, or conduct”); 2001 CANADIAN MANUAL ¶202(7) (“An armed conflict is rarely a polite contest. 

Nevertheless, the concept of chivalry is reflected in specific prohibitions such as those against dishonourable or 

treacherous conduct and against misuse of enemy flags or flags of truce.”).

111 See, e.g., 1899 HAGUE II REG. art. 22 (“The right of belligerents to adopt means of injuring the enemy is not 

unlimited.”); HAGUE IV REG. art. 22 (same); CCW preamble (noting “the principle of international law that the right 

of the parties to an armed conflict to choose methods or means of warfare is not unlimited”). Consider AP I art. 

35(1) (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not 

unlimited.”).

112 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 583, 585 (¶11) (Dissenting 

Opinion of Judge Higgins) (“The legal principle by which parties to an armed conflict do not have an unlimited 

choice of weapons or of methods of warfare... [is intended] to ensure that weapons, both in the context of their use, 

and in the methods of warfare, must comply with the other substantive rules.”).

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

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

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

116 Refer to § 9.11.2 (Parole of POWs).
68

another.

117

For example, enemies must deal with one another in good faith in their non-hostile 

relations.118 And even in the conduct of hostilities, good faith prohibits: (1) killing or wounding 

enemy persons by resort to perfidy; (2) misusing certain signs; (3) fighting in the enemy’s 

uniform; (4) feigning non-hostile relations in order to seek a military advantage; and (5) 

compelling nationals of a hostile party to take part in the operations of war directed against their 

own country.119 Honor, however, does not forbid parties from using ruses and other lawful 

deceptions against which the enemy ought to take measures to protect itself.120

2.6.3 Certain Mutual Respect Between Opposing Military Forces. Honor demands a 

certain mutual respect between opposing military forces. 

Opposing military forces should respect one another outside of the fighting because they 

share a profession and they fight one another on behalf of their respective States and not out of

personal hostility.121 For example, this principle is reflected in the rule that POWs are legally in 

the hands of the enemy State and not the individuals or military units who have captured them.122 

2.6.3.1 Honor and Rules for POW Captivity. In demanding a certain mutual 

respect between opposing military forces, honor animates rules that relate to the treatment of 

POWs. For example, honor is one of the foundations for the humane treatment of POWs.123 

The principle of honor is also reflected in rules that require POWs and their captors to treat one 

another with respect. For example, POWs must be treated with respect for their honor and 

person.

124 As another example, POWs, with the exception of officers, must salute and show to 

all officers of the Detaining Power the external marks of respect provided for by the regulations 

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

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

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

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

121 See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT & DISCOURSES 12 (1920) (“The object of war being the 

destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as 

soon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once 

more merely men, whose life no one has any right to take.”).

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

123 See, e.g., Samuel Falle, Chivalry, 113 Proceedings Magazine, Jan. 1987 (“During World War II, the Japanese 

were portrayed as brutal, subhuman savages—the hordes of Attila or Genghis Khan. Certainly they did terrible 

things, but I was fortunate enough to see something different. It is called ‘chivalry,’ which the Oxford Dictionary 

defines as a ‘medieval knightly system, with its religious, moral, and social code; ideal knight’s characteristics.’ I 

see it as compassion and magnanimity toward a beaten enemy.”); United States, et al. v. Göring, et al., Judgment, I 

TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 289 (“When, on 8 September 1941, OKW issued its 

ruthless regulations for Soviet POW’s, Canaris wrote to [the defendant] Keitel that under international law the SD 

should have nothing to do with this matter. On this memorandum, in Keitel’s handwriting, dated 23 September and 

initialed by him, is the statement: ‘The objections arise from the military concept of chivalrous warfare. This is the 

destruction of an ideology. Therefore I approve and back the measures.’”).

124 Refer to § 9.5.1 (Respect for Their Persons and Honor).
69

applying in their own forces.

125 In addition, capitulations agreed upon between belligerents must 

take into account the rules of military honor.126

2.6.3.2 Honor and the Class of Military Forces. In demanding a certain mutual 

respect between opposing military forces, honor also reflects the premise that military forces are 

a common class of professionals who have undertaken to comport themselves honorably.127

Honor thus animates the rules that determine who qualifies for privileges of combatant 

status. For example, an armed group must, inter alia, be organized under a responsible 

command and conduct its operations in accordance with the law of war in order for its members 

to be entitled to POW status during international armed conflict.128 On the other hand, private 

persons are generally denied the privileges of combatant status because they do not belong to this 

class of combatants.

129

The principle that combatants share a common class has also been a foundation for the 

trial of enemy combatants by military tribunals.

130 For example, the GPW expresses a 

preference for POWs to be tried by military courts rather than civilian courts.131

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

126 Refer to § 12.8.3 (Rules of Military Honor).

127 SPAIGHT, AIR POWER AND WAR RIGHTS 109-10 (“Chivalry is difficult to define but it means broadly, the waging 

of war in accordance with certain well-recognised formalities and courtesies. It is an influence quite distinct from 

the humanitarian one; indeed, it prevailed in its full vigour at a time in which humanitarian interests were otherwise 

entirely disregarded: witness the cruelty of the Black Prince to the people of Limoges. It is against free from any 

necessary connection with Christianity; Saladin was a chivalrous as Coeur-de-Lion. It is, indeed, the spirit pure and 

simple, of knighthood. It expresses in effect the feeling of the combatants that they belong to a caste, that their 

encounter in arms is a high ceremonial, that an opponent is entitled to all honour and respect, that your enemy, 

though he is your enemy, is at the same time a brother in the same noble family of knights-at-arms. Until 

gunpowder came to democratise war, chivalry and chivalry alone was an influence making for moderation in war. It 

was the first motive power for the creation of a restrictive law of war.”).

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

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

130 General Douglas MacArthur, Action of the Confirming Authority, Feb. 7, 1946, United States v. Yamashita (U.S. 

Military Commission, Manila, Dec. 7, 1945), LEVIE, DOCUMENTS ON POWS 298 (“It is not easy for me to pass penal 

judgment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain search 

for some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record been 

spread to public gaze. Revolting as this may be in itself, it pales before the sinister and far reaching implication 

thereby attached to the profession of arms. The soldier, be he friend or foe, is charged with the protection of the 

weak and unarmed. It is the very essence and reason for his being. When he violates this sacred trust, he not only 

profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are long 

and honorable. They are based upon the noblest of human traits, - sacrifice. This officer, of proven field merit, 

entrusted with high command involving authority adequate to responsibility, has failed this irrevocable standard; has 

failed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldier faith. The 

transgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain upon 

civilization and constitute a memory of shame and dishonor that can never be forgotten. Peculiarly callous and 

purposeless was the sack of the ancient city of Manila, with its Christian population and its countless historic shrines 

and monuments of culture and civilization, which with campaign conditions reversed had previously been spared.”).

131 Refer to § 9.26.3 (Trial by Military Courts).
70

III – Application of the Law of War

Chapter Contents

3.1 Introduction

3.2 Situations to Which the Law of War Applies

3.3 Status of the Parties and the Law of War

3.4 When Jus in Bello Rules Apply

3.5 Relationship Between Jus in Bello and Jus ad Bellum

3.6 Reciprocity and Law of War Rules

3.7 Applying Rules by Analogy

3.8 End of Hostilities and the Application of the Law of War

3.9 Law of War Duties Also Applicable in Peace

3.1 INTRODUCTION

Whether a particular law of war rule applies to a situation may depend on a variety of

issues, such as (1) whether a state of “war,” “hostilities,” or “armed conflict” exists;

1 (2) whether 

a party is recognized as a belligerent or as a State;

2 or (3) whether an enemy State has accepted 

that law of war rule.

3

 This Chapter addresses these and other broad issues underlying the 

application of law of war rules. Later chapters address issues in applying specific rules, 

including considerations specific to those rules. For example, whether a specific provision of the 

GPW applies to a particular person may depend on whether that person is entitled to POW status 

under the GPW.4

 

Many of the legal issues underlying the application of law of war rules may be confusing 

because they are complex and may appear to result in contradictory legal positions. For 

example, a State may be at “war” for some purposes, but not for other purposes.5 The legal 

character of U.S. military operations may change rapidly. For example, some operations may 

begin as military operations other than war and later evolve into war, or an international armed 

conflict may change into a non-international armed conflict. 

Although this Chapter addresses how rules apply as a matter of law, DoD practice has 

often been to act consistently with law of war rules, even in certain cases where these rules might 

not technically be applicable as a matter of law.

3.1.1 DoD Practice of Applying Law of War Rules Even When Not Technically 

Applicable. DoD policy and doctrine make clear the importance of compliance with, 

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

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

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

4 Refer to § 9.3 (POW Status).

5 Refer to § 1.5 (“War” as a Legal Concept).
71

implementation of, and enforcement of the law of war.6

 

In addition, DoD practice has often been to act consistently with law of war rules, even in 

certain cases where these rules might not technically be applicable as a matter of law. This 

means, for example, that DoD practice has often been to act consistently with a particular law of 

war treaty rule, even if that rule might not apply as a matter of treaty law. Moreover, DoD 

practice has sometimes been to adhere to the standards in the law of war, even in situations that 

do not constitute “war” or “armed conflict,” because these standards in the law of war reflect 

legal standards that must be adhered to in all circumstances (i.e., whether there is a state of 

armed conflict or not).

3.1.1.1 Reasons for Acting Consistent With a Treaty Rule, Even Though the 

Treaty Does Not Apply. DoD practice has often been to act consistently with a treaty rule, even 

if that rule might not apply as a matter of treaty law. First, it may be appropriate to act 

consistently with the terms of a treaty (even as applied in dealings with a non-Party to a treaty) 

because the general principles of the treaty have been determined to be declaratory of customary 

international law.7

 In such cases, practice that is consistent with the treaty’s terms with regard to 

a particular matter likewise would be in compliance with applicable customary international law.

In addition, it may be important to act consistently with the terms of the treaty because 

the treaty represents “modern international public opinion” as to how military operations should 

be conducted.

8

 Other policy considerations, including efficacious training standards or close 

relations with coalition partners, may lead to a policy decision that DoD practice should be 

consistent with a particular law of war treaty rule, even if that rule does not apply to U.S. forces 

as a matter of law.

3.1.1.2 Applying Law of War Standards as Reflecting Minimum Legal Standards. 

DoD practice also has been to adhere to certain standards in the law of war, even in situations 

that do not constitute “war” or “armed conflict,” because these law of war rules reflect standards

that must be adhered to in all circumstances. Applying these standards provides assurance that 

the standards adhered to equal or exceed those required. This practice has been reflected in DoD 

policies to comply with the law of war, or to comply with the spirit and principles of the law of 

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

7 1956 FM 27-10 (Change No. 1 1976) Foreword (“Moreover, even though States may not be parties to, or strictly 

bound by, the 1907 Hague Conventions and the 1929 Geneva Convention relative to the Treatment of Prisoners of 

War, the general principles of these conventions have been held declaratory of the customary law of war to which all 

States are subject. For this reason, the United States has adopted the policy of observing and enforcing the terms of 

these conventions in so far as they have not been superseded by the 1949 Geneva Conventions which necessarily 

govern the relations between the parties to the latter (see pars. 6 and 7 of the text).”).

8 1956 FM 27-10 (Change No. 1 1976) ¶7a (“These treaty provisions are in large part but formal and specific 

applications of general principles of the unwritten law. While solemnly obligatory only as between the parties 

thereto, they may be said also to represent modern international public opinion as to how belligerents and neutrals 

should conduct themselves in the particulars indicated. For these reasons, the treaty provisions quoted herein will be 

strictly observed and enforced by United States forces without regard to whether they are legally binding upon this 

country. Military commanders will be instructed which, if any, of the written rules herein quoted are not legally 

binding as between the United States and each of the States immediately concerned, and which, if any, for that 

reason are not for the time being to be observed or enforced.”).
72

war, during military operations outside the context of armed conflict.9

Certain prohibitions and certain other rules in the law of war that reflect customary 

international law have been described as reflecting “elementary considerations of humanity.”10 

These “elementary considerations of humanity” have been understood to be “even more exacting 

in peace than in war.”11 Thus, these legal standards, at a minimum, must be adhered to in all 

circumstances.

In particular, Common Article 3 of the 1949 Geneva Conventions reflects a minimum 

yardstick of humane treatment protections for all persons taking no active part in hostilities, 

including members of armed forces who have laid down their arms and those placed hors de 

combat by sickness, wounds, detention, or any other cause.12 The standards in Common Article 

3 of the 1949 Geneva Conventions may be understood to reflect minimum humane treatment 

standards for detainees in any military operation, including those during international or noninternational armed conflict or occupation, and those military operations that are not addressed 

by the law of war. Additional rules will apply depending on the particular context. For example, 

the United States has supported adherence to the guarantees in Article 75 of AP I during 

international armed conflict.

13

3.2 SITUATIONS TO WHICH THE LAW OF WAR APPLIES

Although the law of war is commonly understood as applying to the conduct of hostilities

and the protection of war victims, the law of war addresses other situations as well. The law of 

war establishes: 

 9 See DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.1 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“Members of the DoD Components comply with the law of war during all armed conflicts, however such 

conflicts are characterized, and in all other military operations.”); DOD DIRECTIVE 5100.77, DoD Law of War 

Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of their 

DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, 

and with the principles and spirit of the law of war during all other operations.”). Refer to § 18.1.1 (DoD Policy on 

Implementing and Enforcing the Law of War).

10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶79) (“It is 

undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the 

respect of the human person and ‘elementary considerations of humanity’ as the Court put it in its Judgment of 9 

April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have 

enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have 

ratified the conventions that contain them, because they constitute intransgressible principles of international 

customary law.”).

11 Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (“The obligations 

incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence 

of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger 

to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, 

which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary 

considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime 

communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the 

rights of other States.”).

12 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

13 Refer to § 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).
73

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

14

• rules between enemies for the conduct of hostilities and the protection of war victims in 

international and non-international armed conflict;

15

• rules between belligerents and neutrals;16

• rules for military occupation;

17 and

• duties during peacetime that help implement the above rules.18

In addition, these rules in the law of war can sometimes be applied by analogy to other 

contexts.

19

3.3 STATUS OF THE PARTIES AND THE LAW OF WAR

The law of war distinguishes between: (1) international armed conflicts, i.e., conflicts 

between States; and (2) other armed conflicts, typically called non-international armed conflicts. 

Three situations—unrecognized governments, recognition of belligerency, and national 

liberation movements—merit further discussion because they may affect whether law of war 

rules relating to international armed conflict apply.

3.3.1 International Armed Conflict and Non-International Armed Conflict. The law of 

war treats situations of “war,” “hostilities,” or “armed conflict” differently based on the legal 

status of parties to the conflict. If two or more States oppose one another, then this type of 

armed conflict is known as an “international armed conflict” because it takes place between 

States. However, a state of war can exist when States are not on opposite sides of the conflict.20 

These other types of conflict are described as “not of an international character” or “noninternational armed conflict.”21 For example, two non-State armed groups warring against one 

 14 Refer to § 1.11 (Jus ad Bellum).

15 Chapter V addresses the conduct of hostilities.

16 Chapter XV addresses the law of neutrality.

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

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

19 Refer to § 3.7 (Applying Rules by Analogy).

20 See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (noting that an armed conflict described in Common 

Article 3 of the 1949 Geneva Conventions “does not involve a clash between nations.”); The Prize Cases, 67 U.S. 

635, 666 (1863) (“it is not necessary to constitute war, that both parties should be acknowledged as independent 

nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the 

other.”).

21 See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C. Cir. 2005) (Williams, J., concurring) (“Non-state actors 

cannot sign an international treaty. Nor is such an actor even a ‘Power’ that would be eligible under Article 2 (P3) 

to secure protection by complying with the Convention’s requirements. Common Article 3 fills the gap, providing 

some minimal protection for such non-eligibles in an ‘armed conflict not of an international character occurring in 

the territory of one of the High Contracting Parties.’ The gap being filled is the non-eligible party’s failure to be a 
74

another or States warring against non-State armed groups may be described as “non-international 

armed conflict,” even if international borders are crossed in the fighting.22

The law of war rules applicable to non-international armed conflict are addressed in 

Chapter XVII.

23 There are a number of important differences between the law applicable to

international armed conflict and the law applicable to non-international armed conflict.

24

3.3.1.1 Application of Jus in Bello Rules Does Not Necessarily Affect the Legal 

Status of Parties. Although the legal status of an opponent affects the character of the conflict 

and what rules apply as a matter of law, the application of jus in bello rules does not necessarily 

affect the legal status of parties to a conflict. For example, a belligerent may, as a policy matter, 

afford a person POW protections and treatment without affording that person legal status as a 

POW.

25 Similarly, the application of humanitarian rules, such as those reflected in Common 

Article 3 of the 1949 Geneva Conventions, towards enemy non-State armed groups does not 

affect their legal status (e.g., such application does not amount to recognizing the group as lawful 

belligerents or as the legitimate government of a State).

26

3.3.1.2 Mixed Conflicts Between Opposing States and Non-State Armed Groups. 

Rather than viewing a situation as either an international armed conflict or a non-international 

armed conflict, it may be possible to characterize parts of a conflict as international in character, 

while other parts of that armed conflict may be regarded as non-international in character.27 For 

example, under this view, during a situation involving conflict between a variety of States and 

non-State armed groups, as between the States, the rules of international armed conflict would 

apply, while as between the States and non-State armed groups, the rules of non-international 

armed conflicts would apply.28

 nation. Thus the words ‘not of an international character’ are sensibly understood to refer to a conflict between a 

signatory nation and a non-state actor. The most obvious form of such a conflict is a civil war. But given the 

Convention’s structure, the logical reading of ‘international character’ is one that matches the basic derivation of the 

word ‘international,’ i.e., between nations. Thus, I think the context compels the view that a conflict between a 

signatory and a non-state actor is a conflict ‘not of an international character.’”).

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

23 Refer to § 17.1 (Introduction).

24 Refer to § 17.1.3 (Important Differences Between the Law Applicable to International Armed Conflict and the 

Law Applicable to Non-International Armed Conflict).

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

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

27 Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 EUROPEAN JOURNAL OF 

INTERNATIONAL LAW 265, 271 (1996) (“[T]here is nothing intrinsically illogical or novel in characterizing some 

aspects of a particular set of hostilities as an international armed conflict while others possess an internal character. 

Conflicts have been treated as having such a dual aspect where a Government is simultaneously engaged in 

hostilities with a rebel movement and with another State which backs that movement.”).

28 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, 

Judgment, 1986 I.C.J. 14, 114 (¶219) (“The conflict between the contras’ forces and those of the Government of 

Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the 

Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the 
75

3.3.2 Unrecognized Governments. Even if a State does not recognize an opponent as the 

legitimate government of a State, under certain circumstances, rules of international armed 

conflict may apply to a conflict between a State and a government that it does not recognize. For 

example, members of the regular armed forces who profess allegiance to a government or 

authority not recognized by the Detaining Power nonetheless would be entitled to POW status if 

they fall into the power of the enemy during international armed conflict.29

3.3.3 State Recognition of Armed Groups as Belligerents. In certain cases, States have 

recognized armed groups as belligerents for certain legal purposes. 

For the purpose of applying humanitarian rules, recognition of the armed group as having 

belligerent rights is neither a prerequisite for nor a result of applying humanitarian rules.

30

3.3.3.1 Recognition by Outside States of a Rebel Faction as a Belligerent in a 

Civil War. In the past, in cases of a major civil war in a State, other States have recognized the 

rebel faction as a belligerent with the effect of treating the rebels as though they were a State 

with belligerent rights under the law of neutrality.31

Historically, certain conditions had to be satisfied before outside States could recognize a 

non-State armed group as a belligerent:

 actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. 

Because the minimum rules applicable to international and to non-international conflicts are identical, there is no 

need to address the question whether those actions must be looked at in the context of the rules which operate for the 

one or for the other category of conflict.”); Prosecutor v. Thomas Lubanga Dyilo, ICC Trial Chamber I, ICC-01/04-

01/06, Judgment 258 (¶563) (Mar. 14, 2012) (“Similarly, although there is evidence of direct intervention on the 

part of Uganda, this intervention would only have internationalised the conflict between the two states concerned 

(viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga’s militia] was a party was not ‘a 

difference arising between two states’ but rather protracted violence carried out by multiple non-state armed groups, 

it remained a non-international conflict notwithstanding any concurrent international armed conflict between 

Uganda and the DRC.”).

29 Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not 

Recognized by the Detaining Power).

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

31 For example, STEFAN TALMON, RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW 309 (1998) (“Prior to 

its installation in Nicaraguan territory the PJNR [Provisional Junta of National Reconstruction] was recognized as 

the Government of Nicaragua by the following States: Panama (22 June 1979), Grenada (23 June 1979), Costa Rica 

(18 July 1969). In a rare case of recognition of belligerency in modern history, the members of the Andean Group 

(Bolivia, Colombia, Ecuador, Peru, and Venezuela) declared on 17 June 1979 that they had recognized both sides in 

the Nicaraguan conflict as ‘belligerents’.”); B.F. Butler, Attorney General, Piracy Upon the High Seas, May 17, 

1836, 3 OPINIONS OF THE ATTORNEY GENERAL 120, 122 (1852) (“The existence of a civil war between the people of 

Texas and the authorities and people of the other Mexican States, was recognised by the President of the United 

States at an early day in the month of November last. Official notice of this fact, and of the President’s intention to 

preserve the neutrality of the United States, was soon after given to the Mexican government.”); The Santissima 

Trinidad, 20 U.S. 283, 337 (1822) (“The government of the United States has recognized the existence of a civil war 

between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow 

to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a 

belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the 

exercise of those rights.”).
76

• a general state of armed conflict within a territory; 

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

• the armed group acts under responsible chain of command and respects the laws of war; 

and

• circumstances exist that make it necessary for outside States to define their attitude 

toward the conflict.

32

This doctrine has not been invoked often, especially after the adoption of the Charter of 

the United Nations, and the unwarranted recognition of an insurgent group likely would, at least, 

be considered an unfriendly act against a State engaged in hostilities against that group.

33

3.3.3.2 Assertion of War Powers by a State Engaged in Hostilities Against a NonState Armed Group. Occasionally, a State that has been engaged in hostilities against a nonState armed group has taken actions that have recognized the belligerency of the non-State armed 

group, at least for certain purposes. For example, President Lincoln’s proclamation of a 

blockade during the U.S. Civil War was viewed as recognizing the existence of a state of war, at 

least for the purposes of imposing the blockade on foreign vessels seeking to trade with the 

Confederacy.34

3.3.3.3 Recognition of Friendly Armed Groups as Lawful Belligerents. In some 

cases, a State has recognized an armed group that fights alongside it as a belligerent.35 One 

 32 HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 175-76 (1947) (“There is general agreement as to 

the nature of the conditions which impose the duty of recognition of belligerency—or which, according to others, 

justify recognition of belligerency. These conditions are as follows: first, there must exist within the State an armed 

conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy and 

administer a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with the 

rules of war and through organized armed forces acting under a responsible authority; fourthly, there must exist 

circumstances which make it necessary for outside States to define their attitude by means of recognition of 

belligerency.”).

33 See, e.g., HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 239 (1947) (“If a distant continental 

State in no way directly concerned with the hostilities at sea were to recognize the insurgents as belligerents, it 

would lay itself open to the charge of a gratuitous gesture unfriendly to the lawful government and merely calculated 

to encourage the rebellion.”).

34 The Prize Cases, 67 U.S. 635, 670 (1862) (“Whether the President, in fulfilling his duties as Commander-in-chief 

in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming 

proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, 

and this Court must be governed by the decisions and acts of the political department of the Government to which 

this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation of 

blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and 

authorized a recourse to such a measure under the circumstances peculiar to the case.”).

35 For example, Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) 

P.C.I.J. (series A) No. 7, at 28 (“At the time of the conclusion of those two Conventions, Poland was not recognized 

as a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have been 

concluded between those two Powers. The Principal Allied Powers had, it is true, recognized the Polish armed 

forces as an autonomous, allied and co-belligerent (or belligerent) army. This army was placed under the supreme 

political authority of the Polish National Committee with headquarters in Paris.”); Statement of the Secretary of 
77

reason for such recognition might be to seek to persuade other States that have not recognized 

the armed group as a belligerent, such as an enemy State, to grant the privileges of combatant 

status to members of those armed groups.

36 An armed group that has been recognized in this 

way by a friendly State may be viewed as analogous to an organized resistance movement that 

belongs to a State that is a party to a conflict.

37

3.3.4 AP I Provision on National Liberation Movements. AP I treats as international 

armed conflicts “armed conflicts in which peoples are fighting against colonial domination and 

alien occupation and against racist regimes in the exercise of their right of self-determination.”38 

The United States has strongly objected to this provision as making the applicability of 

the rules of international armed conflict turn on subjective and politicized criteria that would 

eliminate the distinction between international and non-international conflicts.

39 The United 

States has understood these types of conflicts to be non-international armed conflicts.40 

Moreover, the United States has not accepted this provision in the context of the CCW.41 The 

 State, September 1918, reprinted in Charles Henry Hyde, The Recognition of the Czecho-Slovaks as Belligerents, 13 

AJIL 93-95 (1919) (“The Government of the United States recognizes that a state of belligerency exists between the 

Czecho-Slovaks thus organized and the German and Austro-Hungarian Empires. It also recognizes the CzechoSlovak National Council as a de facto belligerent government, clothed with proper authority to direct the military 

and political affairs of the Czecho-Slovaks.”).

36 For example, Declaration Concerning Czechoslovak Army, Sept. 7, 1944, 11 DEPARTMENT OF STATE BULLETIN 

263 (Sept. 10, 1944) (“The United States Government therefore declares: ... (3) In these circumstances reprisals by 

the German military authorities against the soldiers of the Czechoslovak Army violate the rules of war by which 

Germany is bound. The United States Government, therefore, solemnly warns all Germans who take part in or are 

in any way responsible for such violations that they do so at their peril and will be held answerable for their 

crimes.”).

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

38 AP I art. 1(4) (“The situations referred to in the preceding paragraph [i.e., the situations referred to in Article 2 

common to those Conventions] include armed conflicts in which peoples are fighting against colonial domination 

and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in 

the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly 

Relations and Co-operation among States in accordance with the Charter of the United Nations.”).

39 See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IIIIV (“But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine 

humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an 

international conflict any so-called ‘war of national liberation.’ Whether such wars are international or noninternational should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. 

To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and 

eliminate the distinction between international and non-international conflicts. It would give special status to ‘wars 

of national liberation,’ an ill-defined concept expressed in vague, subjective, politicized terminology.”).

40 Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE 

FROM THE PRESIDENT TRANSMITTING AP II 1-2 (“This Article technically excludes four types of situations from the 

scope of the Protocol: ... (2) the so-called wars of ‘national liberation’ defined as international armed conflicts by 

Article 1(4) of Protocol I Additional to the 1949 Geneva Conventions; ... However, the exclusion of the second and 

third categories is inappropriate. The second category--so-called ‘liberation wars’ defined in Protocol I--are often in 

fact non-international conflicts, and are distinguished by Protocol I from other non-international conflicts only on 

the basis of highly politicized and undesirable criteria which detract from the integrity of international humanitarian 

law; the United States should therefore reject this distinction.”).

41 Refer to § 19.21.1.2 (U.S. Reservation to Article 7(4)(b) of the CCW).
78

United States has expressed the view that it would not be appropriate to treat this provision of 

AP I as customary international law.42

3.4 WHEN JUS IN BELLO RULES APPLY

Jus in bello treaties often provide that they apply in cases of “declared war or of any 

other armed conflict,” even if the state of war is not recognized by them.43 This standard has 

also been understood to result in the application of the customary law of war.44

A case of “declared war or any other armed conflict” for the purpose of determining 

whether parties must comply with jus in bello rules may be understood as arising in two ways: 

(1) when a party intends to conduct hostilities; or (2) when parties are actually conducting 

hostilities.

“War,” “hostilities,” and “armed conflict” may be defined differently for other legal 

purposes.

45 It must be emphasized that the discussion in this section is for the purpose of 

assessing whether jus in bello restrictions apply and not necessarily for other purposes. For 

example, the fact that jus in bello restrictions apply is not determinative of whether a State’s 

actions are lawful under jus ad bellum.

46 Similarly, the fact that jus in bello restrictions apply is 

not determinative of whether the permissions that are sometimes viewed as inherent in jus in 

bello rules may be relied upon by a State or non-State actor.47

3.4.1 Intent-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply when a

party intends to conduct hostilities. 

If a State chooses to go to war, then it is bound by jus in bello rules for the conduct of 

 42 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGEST 

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (“The new provisions on wars of 

national liberation and prisoners of war in Protocol I clearly do not reflect the practice of states. Indeed, they were 

adopted precisely because states did not accord prisoner-of-war status in such conflicts. It is most unlikely that 

states will in the future choose to accord prisoner-of-war status in conflicts described as wars of national liberation. 

Accordingly, it is the view of the United States that it would be inappropriate to treat these provisions as part of 

customary international law under any circumstances.”).

43 See, e.g., GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict which 

may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by 

them.”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL PROPERTY

CONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other armed conflict 

which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by 

one or more of them.”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in the situations 

referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,”).

44 1956 FM 27-10 (Change No. 1 1976) ¶8b (“The customary law of war applies to all cases of declared war or any 

other armed conflict which may arise between the United States and other nations, even if the state of war is not 

recognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory by 

the exercise of armed force, even if the occupation meets with no armed resistance.”).

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

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

47 Refer to § 1.3.3.2 (Law of War as Permissive Law).
79

those hostilities.48 For example, if a State considers it necessary to respond to attacks with 

military force, then those military operations must comply with jus in bello rules.49

The fact that the intention to conduct hostilities gives rise to obligations to comply with 

the law of war is important because law of war obligations must be taken into account even 

before the fighting actually begins, such as in the planning of military operations.50 Similarly, 

certain obligations under the GPW and the GC are triggered by the onset of hostilities, and it 

may be necessary to implement these obligations even before the fighting actually begins.

51 As 

another example, the party that is subject to attack is often in a position to take feasible 

precautions for the protection of the civilian population even before the fighting begins.

52

3.4.1.1 Declarations of War or Other Official Recognition by States of a State of 

Hostilities. The application of the 1949 Geneva Conventions and other law of war treaties to 

cases of “declared war” is an example of how jus in bello restrictions apply when a party intends 

to conduct hostilities.

53 Traditionally, a State could create a state of hostilities with another State 

simply by providing objective evidence of its decision to resort to force through formal 

declarations that hostilities exist between them.

54 

 48 L. OPPENHEIM, II INTERNATIONAL LAW 66 (2nd ed., 1912) (“But if [States] choose to go to war they have to 

comply with the rules laid down by International Law regarding the conduct of war and the relations between 

belligerents and neutral States.”).

49 For example, Patrick F. Philbin, Deputy Assistant Attorney General, Legality of the Use of Military Commissions 

to Try Terrorists, Nov. 6, 2001, 25 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 238, 276 (“In addition, the United 

States has determined that it is necessary to respond to the attacks with military force. That decision is significant 

because one element often cited for determining whether a situation involving a non-state actor rises to the level of 

an “armed conflict” (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a state 

responds with its regular military forces. The United States has urged this position. See 3 U.S. Practice § 2, at 

3443; see also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under common Article 3, “armed 

conflict” exists when the government is “obliged to have recourse to its regular military forces”). Here, this 

criterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with a 

massive use of military force. The current operations in Afghanistan and continuing preparations for a sustained 

campaign easily establish that the situation here involves an armed conflict for purposes of international law.”).

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

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

Measures).

52 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

53 See, e.g., GWS art. 2 (The convention applies “to all cases of declared war ... between two or more of the High 

Contracting Parties”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL 

PROPERTY CONVENTION art. 18 (“the present Convention shall apply in the event of declared war ... between two or 

more of the High Contracting Parties”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in the 

situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War 

Victims,”).

54 See, e.g., Convention (III) Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 36 STAT. 2259, 2271 (“The 

Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit 

warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of 

war.”); Eliza Ann and others, 1 DODSON 244, 247 (Mar. 9, 1813) (a declaration of war “proves the existence of 
80

Although States generally no longer file formal declarations of war with one another, 

officials may make public statements that are like declarations of war in that they provide notice 

of a state of hostilities.

55 For example, States may make statements that indicate their view that 

they are engaged in armed conflict in the context of reporting measures taken in the exercise of 

their inherent right of self-defense to the U.N. Security Council.56 Similarly, the authorization 

by Congress of the use of military force has been interpreted as triggering the application of 

certain parts of the law of war.57 

These types of statements concerning jus ad bellum may be probative of the applicability 

of jus in bello restrictions. For example, a statement by a State indicating that it had suffered a 

wrongful attack under jus ad bellum would also indicate that the State viewed jus in bello

restrictions as applicable to its adversary’s operations against it and its own military operations 

against its adversary.58

Similarly, statements by States that justify the legality of their actions or assert authority 

under jus in bello rules may also provide evidence that States have the intention of conducting 

hostilities and that jus in bello restrictions apply to the activities that will effectuate those 

intentions.

59

 

actual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, think 

proper to act on the defensive only.”).

55 See, e.g., Navios Corp. v. The Ulysses II, 161 F. Supp. 932, 943 (D. Md. 1958) (concluding that a speech by 

President Nasser of Egypt “of November 1, confirmed by the statement of November 3, constituted a declaration of 

war even under the technical requirements of international law.”), affirmed, 260 F.2d 959 (4th Cir. 1958).

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

57 Talbot v. Seeman, 5 U.S. 1, 28 (1801) (Marshall, C.J.) (“It is not denied, nor in the course of the argument has it 

been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our 

situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be 

noticed.”).

58 For example, John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks 

at Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws, Sept. 16, 2011 (“First, 

our definition of the conflict. As the President has said many times, we are at war with al-Qa’ida. In an indisputable 

act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded 

just last weekend, al-Qa’ida seeks to attack us again. Our ongoing armed conflict with al-Qa’ida stems from our 

right—recognized under international law—to self defense. An area in which there is some disagreement is the 

geographic scope of the conflict. The United States does not view our authority to use military force against alQa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan. Because we are engaged in an armed conflict 

with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the 

authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis 

each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action 

if or when other governments are unwilling or unable to take the necessary actions themselves. That does not mean 

we can use military force whenever we want, wherever we want. International legal principles, including respect for 

a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the 

way in which we can use force—in foreign territories.”).

59 Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONS OF THE 

OFFICE OF LEGAL COUNSEL 486, 488-89 (2013) (“The declaration of a state of war was helpful in ascertaining the 

rights and obligations of neutrals in a given situation. Apart from this, however, it served little function. War itself, 

whatever its reason, was legal self-help, and so were lesser measures if such could be said to exist. Whether or not a 

nation declared a state of war it would be found by others to exist if that state were claiming rights, such as 
81

3.4.1.2 Non-State Armed Groups With the Intention of Conducting Hostilities. A 

non-State armed group, such as a rebel group, might also intend to conduct hostilities.60 NonState armed groups are similarly bound by the restrictions in the law of war for the conduct of 

hostilities when they intend to conduct hostilities.61 However, in contrast to States, non-State 

armed groups lack competent authority.

62 Thus, there would not be a basis for non-State armed 

groups to claim the permissions that may be viewed as inherent in parts of the law of war.63 For 

example, members of a non-State group may be subject to prosecution under a State’s domestic 

law for their participation in hostilities against it.

64

3.4.2 Act-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply when 

parties are actually conducting hostilities, even if the war is not declared or if the state of war is 

not recognized by them.

65 The de facto existence of an armed conflict is sufficient to trigger 

 

blockade, normally associated with war.”). For example, National Defense Authorization Act for Fiscal Year 2012 

§ 1021 (“Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to 

the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the 

Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition 

under the law of war.”); Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy Personnel 

Captured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OF UNITED 

STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (considering, inter alia, the fact that “[t]he 

Department of State, in a press release on 4 November 9 [1984], cited the GPW as authority for U.S. detention of 

Cuban Grenadan military personnel” in concluding that “de facto hostilities existed on Grenada and that the Geneva 

Conventions do apply.”) (insertion reflect in the Digest).

60 For example, Hamdan v. Rumsfeld, 548 U.S. 557, 687 (2006) (Thomas, J., dissenting) (“According to the State 

Department, al Qaeda declared war on the United States as early as August 1996. In February 1998, al Qaeda 

leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied to 

legitimate nation-states, plainly illegal—killing of American civilians and military personnel alike. This was not 

mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in 

New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S. 

Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000.”) (internal 

citations omitted). See also United States v. Burr, 25 F. Cas. 201, 203 (C.C.D. Va. 1807) (Marshall, C.J.) 

(explaining in the context of a prosecution of rebels for treason that “war might be levied without a battle, or the 

actual application of force to the object on which it was designed to act; that a body of men assembled for the 

purpose of war, and being in a posture of war, do levy war; and from that opinion I have certainly felt no disposition 

to recede. But the intention is an indispensable ingredient in the composition of the fact; and if war may be levied 

without striking the blow, the intention to strike must be plainly proved.”).

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

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

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

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

65 See, e.g., GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict which 

may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them.”) 

(emphasis added); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL 

PROPERTY CONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other 

armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not 

recognized by one or more of them.”) (emphasis added); CCW art. 1 (“This Convention and its annexed Protocols 

shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the 

Protection of War Victims,”).
82

obligations for the conduct of hostilities.

66

The United States has interpreted “armed conflict” in Common Article 2 of the 1949 

Geneva Conventions to include “any situation in which there is hostile action between the armed 

forces of two parties, regardless of the duration, intensity or scope of the fighting.”67

3.4.2.1 Reasons for States to Seek to Deny the Existence of Hostilities. States 

have specified that jus in bello rules apply even if a state of hostilities is not recognized by them 

because States have frequently denied that they are at “war.” And, in some cases, this denial has 

resulted in a refusal to comply with jus in bello obligations.68 

There are a variety of reasons why States might deny that they are at “war.” For 

example, government officials may deny that an armed conflict exists: (1) to avoid an escalation 

in fighting and to facilitate a diplomatic resolution; (2) for reasons of domestic law; (3) to avoid 

economic costs (such as discouraging commerce and foreign investment); or (4) to avoid 

appearing to acknowledge the military effectiveness of an opposing force.

In particular, States have often been reluctant to acknowledge that operations by nonState armed groups have triggered the application of Common Article 3 of the 1949 Geneva 

 66 GPW COMMENTARY 22-23 (“There is no need for a formal declaration of war, or for the recognition of the 

existence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto

hostilities is sufficient.”). For example, Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy 

Personnel Captured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OF 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (concluding “that de facto hostilities 

existed on Grenada and that the Geneva Conventions do apply” despite the fact that “[n]o party to the hostilities in 

Grenada has suggested that a state of war exists; officials of Cuba and the United States publicly have announced 

they are not at war.”); George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State, 

Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the 

Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMAN’S DIGEST

231-32 (§7) (“Although there have been no declarations of war, the present conflict in Vietnam is indisputably an 

‘armed conflict’ between parties to the Geneva Conventions of 1949. In one aspect of the war, American aircraft are 

operating against military targets in North Vietnam, and North Vietnamese forces have engaged these aircraft. 

Under these circumstances, the Convention applies in its entirety to this conflict. ... In this case, the state of war 

(under international law) is not disputed; it is merely undeclared.”).

67 Department of State, Telegram 348126 to American Embassy at Damascus, Dec. 8, 1983, III CUMULATIVE 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3456, 3457 (“The Third Geneva 

Convention accords ‘prisoner-of-war’ status to members of the armed forces who are captured during ‘armed 

conflict’ between two or more parties to the Convention. ‘Armed conflict’ includes any situation in which there is 

hostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting 

and irrespective of whether a state of war exists between the two parties.”). Cf. Bas v. Tingy, 4 U.S. 37, 40 (1800) 

(Washington, J., concurring) (“every contention by force between two nations, in external matters, under the 

authority of their respective governments, is not only war, but public war.”).

68 For example, United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the Far 

East, 49,602, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY 

TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 535 (2008) (“Since the Government of Japan officially 

classified the China War as an ‘Incident’ and considered Chinese soldiers in Manchuria as ‘bandits’ the Army 

refused to accord to captives taken in the fighting the status and the rights of prisoners of war. MUTO says that it 

was officially decided in 1938 to continue to call the war in China an ‘Incident’ and to continue for that reason to 

refuse to apply the rules of war to the conflict. TOJO told us the same.”).
83

Conventions.

69 This reluctance often stems from an unwillingness to take any action that could 

enhance the perceived status of rebels or give any appearance of legitimacy to their actions.70 

Nonetheless, the application of the humanitarian rules does not affect the legal status of parties to 

a conflict.71

3.4.2.2 Distinguishing Armed Conflict From Internal Disturbances and Tensions. 

In assessing whether de facto hostilities exist for the purpose of applying jus in bello restrictions, 

situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of 

violence, and other acts of a similar nature do not amount to armed conflict.72

Any hostile action between the armed forces of different States (i.e., international armed 

conflict) may readily be distinguished from an “internal disturbance or tension.” However, it has 

been more difficult to distinguish “armed conflict not of an international character” from 

“internal disturbances or tensions.”

“Armed conflict not of an international character” for the purpose of applying the 

obligations in Common Article 3 of the 1949 Geneva Conventions was not specifically defined 

 69 See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: 

Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 878 (Jun. 18, 1973) (“I would 

note that Pakistan in Bangladesh and the United Kingdom in Northern Ireland have refused to acknowledge the 

applicability of article 3 common to the four Geneva Conventions concerning noninternational armed conflicts.”).

70 See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: 

Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 879 (Jun. 18, 1973) (“In the 

first place there is a general concern of governments that the acceptance of international standards for a civil war 

connotes international recognition of the insurgents. This concern results from the historical development of the 

law; in customary law the international laws of war become applicable to a civil war upon international recognition 

of the rebels as belligerents. This concern persists despite an explicit provision in common article 3 that its 

application shall not affect the legal status of the parties to the conflict. Personally, I deplore the fact that this 

concern so often effectively prevents official admission that an internal armed conflict is one to which article 3 

applies, but we cannot ignore that political reality. Governments will predictably remain unwilling to do anything 

that could enhance the perceived status of rebels or give any appearance of legitimacy to their actions.”).

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

72 See, e.g., CCW AMENDED art. 1 (2) (“This Convention and its annexed Protocols shall not apply to situations of 

internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of similar 

nature, as not being armed conflicts.”); CCW AMENDED MINES PROTOCOL art. 1(2) (“This Protocol shall not apply 

to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts 

of a similar nature, as not being armed conflicts.”); United States, Statement on Ratification of the International 

Convention for the Suppression of the Financing of Terrorism, Jun. 26, 2002, 2185 UNTS 611, 612 (“(2) Meaning 

of the term armed conflict. The United States of America understands that the term ‘armed conflict’ in Article 2 (1) 

(b) of the Convention does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of 

violence, and other acts of a similar nature.”). Consider AP II art. 1(2) (“This Protocol shall not apply to situations 

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar 

nature, as not being armed conflicts.”); ROME STATUTE art. 8(2)(d) (“Paragraph 2(c) applies to armed conflicts not 

of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, 

isolated and sporadic acts of violence or other acts of a similar nature.”); ROME STATUTE art. 8(2)(f) (“Paragraph 

2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal 

disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”).
84

in those conventions.73 There has been a range of views on what constitutes an “armed conflict 

not of an international character” for this purpose.74 The intensity of the conflict and the 

organization of the parties are criteria that have been assessed to distinguish between noninternational armed conflict and “internal disturbances and tensions.”75 A variety of factors have 

been considered in assessing these criteria and in seeking to distinguish between armed conflict 

and internal disturbances and tensions.

76 

 73 GWS COMMENTARY 49 (“What is meant by ‘armed conflict not of an international character’? That was the 

burning question which arose again and again at the Diplomatic Conference. The expression was so general, so 

vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms—any 

form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellion 

against the State and attack a police station, would that suffice to bring into being an armed conflict within the 

meaning of the Article? In order to reply to questions of this sort, it was suggested that the term ‘conflict’ should be 

defined or, which would come to the same thing, that a certain number of conditions for the application of the 

Convention should be enumerated. The idea was finally abandoned—wisely, we think.”).

74 See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Decision on the Defence Motion for 

Interlocutory Appeal on Jurisdiction, ¶70 (Oct. 2, 1995) (“On the basis of the foregoing, we find that an armed 

conflict exists whenever there is a resort to armed force between States or protracted armed violence between 

governmental authorities and organized armed groups or between such groups within a State.”); Juan Carlos Abella 

v. Argentina, Inter-American Commission on Human Rights, Organization of American States, Case 11.137, 

OEA/Ser.L/V/II.98, ¶152 (Nov. 18, 1997) (“Common Article 3 is generally understood to apply to low intensity and 

open armed confrontations between relatively organized armed forces or groups that take place within the territory 

of a particular State.”).

75 See, e.g., Prosecutor v. Tadić, ICTY Trial Chamber, IT-94-1-A, Judgment, ¶562 (May 7, 1997) (“In an armed 

conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a 

minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist 

activities, which are not subject to international humanitarian law.”); Prosecutor v. Akayesu, ICTR Trial Chamber, 

ICTR-96-4-T, Judgment, ¶625 (Sept. 2, 1998) (“The concept of armed conflict has already been discussed in the 

previous section pertaining to Common Article 3. It suffices to recall that an armed conflict is distinguished from 

internal disturbances by the level of intensity of the conflict and the degree of organization of the parties to the 

conflict.”).

76 See, e.g., GPW COMMENTARY 35-36 (collecting conditions that States negotiating the 1949 Geneva Conventions 

viewed as indicative factors); Prosecutor v. Boskoski, ICTY Trial Chamber II, IT-04-82-T, Judgment, ¶177 (Jul. 10, 

2008) (“Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of the 

conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the 

spread of clashes over territory and over a period of time, any increase in the number of government forces and 

mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has 

attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been 

passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the 

combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such 

as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the 

extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units 

deployed; existence and change of front lines between the parties; the occupation of territory, and towns and 

villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and 

agreements, and the attempt of representatives from international organisations to broker and enforce cease fire 

agreements.”); Prosecutor v. Dordevic, ICTY Trial Chamber II, IT-04-82-T, Judgment, ¶1526 (Feb. 23, 2011) 

(“Trial Chambers have taken into account a number of factors when assessing the organization of an armed group. 

These fall into five broad groups. First, are the factors signalling the presence of a command structure. Secondly, 

are factors indicating that an armed group could carry out operations in an organised manner. Thirdly, are factors 

indicating a level of logistics have been taken into account. Fourthly, are factors relevant to determining whether an 

armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3. 

A fifth group includes factors indicating that the armed group was able to speak with one voice.”).
85

A helpful rule of thumb may be that where parties are, in fact, engaged in activities that 

the law of war contemplates (e.g., detention of enemy military personnel without criminal 

charge, bombardment of military objectives), those activities are subject to the law of war.77 

3.4.2.3 Responding to Ordinary Crimes, Including Acts of Terrorism. States are 

not required to apply law of war rules when using domestic law enforcement tools to respond to 

ordinary crimes, including acts of terrorism.78 For example, States may apply their domestic law 

and prosecute acts of terrorism by non-State armed groups.79 States, however, have at times

decided to resort to military force to counter a terrorist or similar threat that is beyond the

capabilities of ordinary law enforcement to address.80 If States intend to conduct hostilities, then 

they are also bound by the applicable jus in bello restrictions in the law of war.81

Acts of terrorism during armed conflict are prohibited by the law of war.82

 77 Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights, Organization of American 

States, Case 11.137, OEA/Ser.L/V/II.98, ¶155 (Nov. 18, 1997) (“What differentiates the events at the La Tablada 

base from these situations [of internal disturbances] are the concerted nature of the hostile acts undertaken by the 

attackers, the direct involvement of governmental armed forces, and the nature and level of the violence attending 

the events in question. More particularly, the attackers involved carefully planned, coordinated and executed an 

armed attack, i.e., a military operation, against a quintessential military objective - a military base.”); GPW

COMMENTARY 23 (“It makes no difference how long the conflict lasts, how much slaughter takes place, or how 

numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries 

falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the 

Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, 

of course, immaterial.”).

78 United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“It is the understanding of 

the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is 

not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in 

isolation.”).

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

80 For example, William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan 

and Sudan, Aug. 20, 1998, 1998-II PUBLIC PAPERS OF THE PRESIDENTS 1460, 1461 (“America has battled terrorism 

for many years. Where possible, we’ve used law enforcement and diplomatic tools to wage the fight. ... But there 

have been and will be times when law enforcement and diplomatic tools are simply not enough, when our very 

national security is challenged, and when we must take extraordinary steps to protect the safety of our citizens. With 

compelling evidence that the bin Ladin network of terrorist groups was planning to mount further attacks against 

Americans and other freedom-loving people, I decided America must act. And so this morning, based on the 

unanimous recommendation of my national security team, I ordered our armed forces to take action to counter an 

immediate threat from the bin Ladin network. Earlier today, the United States carried out simultaneous strikes 

against terrorist facilities and infrastructure in Afghanistan.”); Public Committee against Torture in Israel, et al. v. 

Government of Israel, et al., HCJ 769/02, Israel Supreme Court Sitting as the High Court of Justice, ¶21 (Dec. 11, 

2005) (“Indeed, in today’s reality, a terrorist organization is likely to have considerable military capabilities. At 

times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be 

restricted within the state and its penal law.”).

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

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

Acts of Terrorism).
86

3.5 RELATIONSHIP BETWEEN JUS IN BELLO AND JUS AD BELLUM

3.5.1 General Distinction Between Jus in Bello and Jus ad Bellum. As a general matter, 

jus in bello and jus ad bellum address different legal issues and should not be conflated.83 

Conflating jus in bello and jus ad bellum risks misunderstanding and misapplying these 

concepts. For example, in jus ad bellum, proportionality refers to the principle that the overall 

goal of the State in resorting to war should not be outweighed by the harm that the war is 

expected to produce.

84 However, the principle of proportionality in jus in bello generally refers 

to the obligations to take feasible precautions in planning and conducting attacks and to refrain 

from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian 

objects incidental to the attack would be excessive.

85 Therefore, although a jus ad bellum

proportionality analysis might consider the harm suffered by enemy military forces in the 

fighting, a jus in bello proportionality analysis would not.86

3.5.2 Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another. 

One important attribute of rules for conduct during war (jus in bello) is that, in general, they 

operate independently from rules regarding the resort to force (jus ad bellum).

3.5.2.1 Compliance With Jus in Bello Is Required Regardless of Compliance With 

Jus ad Bellum. States fighting against one another must adhere to rules relating to the conduct of 

hostilities (jus in bello), regardless of whether a State may be considered the aggressor or 

whether the initial resort to force was lawful under jus ad bellum. For example, the 1949 Geneva 

Conventions require States to undertake to respect and to ensure respect for the conventions in 

all circumstances.

87 The phrase “in all circumstances” has been interpreted to mean that a 

Party’s obligations to respect and to ensure respect for the 1949 Geneva Conventions applies 

regardless of whether a Party to the Convention is the aggressor or lawfully using force in selfdefense.88 Similarly, once an occupation exists in fact, the law of occupation applies, regardless 

of whether the invasion was lawful under jus ad bellum.

89 

3.5.2.2 Compliance With Jus ad Bellum Is Required Regardless of Compliance 

 83 Refer to § 1.11 (Jus ad Bellum).

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

85 Refer to § 5.10 (Proportionality in Conducting Attacks).

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

87 GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention 

in all circumstances.”).

88 GWS COMMENTARY 27 (“The words ‘in all circumstances’ mean in short that the application of the Convention 

does not depend on the character of the conflict. Whether a war is ‘just’ or ‘unjust’, whether it is a war of 

aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way 

affected.”). Consider AP I preamble (“the provisions of the Geneva Conventions of 12 August 1949 and of this 

Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without 

any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed 

to the Parties to the conflict,”).

89 Refer to § 11.2.1 (Military Occupation as a Fact).
87

With Jus in Bello. Compliance with jus ad bellum is required regardless of compliance with jus 

in bello.

90 For example, a State that complies with jus in bello rules may nonetheless commit 

aggression under jus ad bellum.

91 In addition, violations of law of war treaties applicable to noninternational armed conflict generally have not been understood to provide a basis in 

international law for a non-belligerent State to intervene against the State in that conflict.92

3.5.2.3 Rationales for the Independent Operation of Jus in Bello and Jus ad 

Bellum. The principle that jus in bello rules operate independently of jus ad bellum rules is 

based on principles of sovereignty and humanity, as well as practical considerations.

If the law of war only protected parties justly resorting to force, then both sides, believing 

their opponent’s cause to be unjust, could consider themselves free to depart from jus in bello

rules.

93 As a consequence, both sides could deny protections to their opponent, and no one 

would benefit from the law of war’s humanitarian protections.

94 Moreover, there might not be a 

competent procedure for deciding which, if any, State has unlawfully resorted to force.

95

The principle that jus in bello rules operate independently of jus ad bellum rules is also 

influenced by the fact that it would be unjust to punish individual military members based on jus 

ad bellum considerations when they have no influence on whether their State has resorted to 

 90 Consider AP I preamble (“nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be 

construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter 

of the United Nations,”).

91 Refer to § 1.11.3.1 (Aggression).

92 Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed 

Groups Against Other States).

93 VATTEL, THE LAW OF NATIONS 305 (3.12.190) (“Moreover, since each Nation claims to have justice on its side, it 

will arrogate to itself all the rights of war and claim that its enemy has none, that his hostilities are but deeds of 

robbery, acts in violation of the Law of Nations, and deserving of punishment by all Nations. The decision of the 

rights at issue will not be advanced thereby, and the context will become more cruel, more disastrous in its effects, 

and more difficult of termination.”).

94 VATTEL, THE LAW OF NATIONS 305 (3.12.190) (“The first rule of that law [of nations], with respect to the subject 

under consideration, is that regular war, as regards its effects, must be accounted just on both sides. This principle, 

as we have just shown, is absolutely necessary if any law or order is to be introduced into a method of redress as 

violent as that of war, if any bounds are to be set to the disasters it occasions, and if a door is to be left at all times 

open for the return of peace. Moreover, any other rule would be impractical as between Nation and Nation, since 

they recognize no common judge.”).

95 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 218 (§61) (“Unless war is to degenerate into a savage 

contest of physical forces freed from all restraints of compassion, chivalry and respect for human life and dignity, it 

is essential that the accepted rules of war should continue to be observed. This is so in particular in view of the fact 

that in the present state of international judicial and political organisation there may be no means by which an 

authoritative judgment can be arrived at on the question as to which State is the aggressor. (It will be noted, for 

instance, that nothing short of an unanimous vote of the permanent members of the Security Council is sufficient for 

the determination that a particular State has resorted to war in violation of its obligations under the Charter.) 

Accordingly it must be held that during the war all belligerents are bound to respect and are entitled to insist as 

among themselves on the observance of rules of war as generally recognised.”).
88

force lawfully under applicable international law.

96

3.5.3 Jus in Bello and Jus ad Bellum Are Sometimes Related. Although as a general 

matter parties must comport with jus in bello rules, regardless of jus ad bellum considerations, 

sometimes jus ad bellum issues can affect how jus in bello rules operate. 

For example, the jus ad bellum principle of competent authority (also called right 

authority) acknowledges that the resort to military force is a prerogative of the State.97 

Competent authority is reflected in the distinction between international armed conflict and noninternational armed conflict; military operations against another State are fundamentally different 

as a matter of law than military operations against a non-State armed group.98 Competent 

authority also is reflected in jus in bello rules relating to who is entitled to receive the privileges 

of combatant status. Private persons captured after engaging in hostilities generally are not 

entitled to receive the privileges of POW status under the law of war because they lack 

competent authority.

99

As another example, the jus ad bellum issue of whether a disputed territory belongs to a 

State affects whether the law of belligerent occupation applies to that territory because the law of 

belligerent occupation only applies to territory that belongs to an enemy State.

100

3.5.4 U.N. Security Council Decisions and Jus in Bello. The Charter of the United 

Nations provides the modern treaty framework for jus ad bellum, and assigns important 

responsibilities to the U.N. Security Council.

101

In theory, decisions by the Security Council, acting under Chapter VII of the Charter of 

the United Nations, could create obligations that conflict with, and prevail over, obligations in 

law of war treaties or customary international law.102 In practice, however, the U.N. Security 

Council frequently has affirmed the obligations of States and parties to conflicts to comply with 

the law of war, including military forces operating pursuant to U.N. Security Council

decisions.103 

 96 United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1027 (“If 

we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which 

would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every 

soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a 

murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and 

the pronouncement of guilt in any case would become a mere formality.”).

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

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

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

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

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

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

103 For example, U.N. SECURITY COUNCIL RESOLUTION 2011(2011), U.N. Doc. S/RES/2011 (2011) (Oct. 12, 2011) 

(“Expressing its serious concern with the increased high number of civilian casualties in Afghanistan, in particular 

women and children casualties, the increasingly large majority of which are caused by Taliban, Al-Qaida and other 
89

The U.N. Security Council also has certain authorities to respond to situations involving 

violations of the law of war, including establishing commissions of inquiry or authorizing the use 

of force.

104

Decisions of the Security Council, however, may alter the obligations of member States 

of the United Nations under the law of neutrality.105 In addition, a U.N. Security Council 

authorization may provide additional authority for an Occupying Power to govern occupied 

territory.106

3.6 RECIPROCITY AND LAW OF WAR RULES

“Reciprocity” sometimes refers to the idea that whether a law of war rule applies to a 

party to a conflict depends on whether its opponent has accepted and complies with that same 

rule or a corresponding rule. The requirement to comply with many law of war rules (such as the 

obligation to treat detainees humanely) does not depend on whether the enemy complies with 

that rule. Nonetheless, in the law of war, reciprocity may play a role in: (1) whether a rule

applies; (2) enforcing a rule; or (3) how a rule operates. 

3.6.1 Treaty Provisions That Provide for Reciprocity in the Scope of Application of the 

Treaty. Considerations of reciprocity – i.e., the degree of confidence as to whether an adversary 

will, in fact, abide by a certain rule – may be a critical factor in the willingness of States to enter 

into treaty obligations.

Similarly, various treaty provisions also reflect, to varying degrees, the principle that 

whether a rule is legally binding on a party depends on whether its opponent has accepted and 

applied that same rule. For example, some law of war treaties have a “general participation 

clause” – i.e., a clause specifying that the treaty only applies to an armed conflict if all the parties 

to the armed conflict are also Parties to the treaty.107 A number of treaties on the law of 

 violent and extremist groups, reaffirming that all parties to armed conflict must take all feasible steps to ensure the 

protection of affected civilians, especially women, children and displaced persons, calling for all parties to comply 

with their obligations under international humanitarian and human rights law and for all appropriate measures to be 

taken to ensure the protection of civilians, and recognizing the importance of the ongoing monitoring and reporting 

to the United Nations Security Council, including by ISAF, of the situation of civilians and in particular civilian 

casualties, and noting in this regard the work of the ISAF Civilian Casualties Tracking Cell,”).

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

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

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

107 For example, HAGUE IV art. 2 (“The provisions contained in the Regulations referred to in Article 1, as well as in 

the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are 

parties to the Convention.”); HAGUE V art. 20 (“The provisions of the present Convention do not apply except 

between Contracting Powers, and then only if all the belligerents are parties to the Convention.”); HAGUE IX art. 8 

(“The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the 

belligerents are parties to the Convention.”); HAGUE XIII art. 28 (“The provisions of the present Convention do not 

apply except to the Contracting Powers, and then only if all the belligerents are parties to the Convention.”); 1929 

GPW art. 82 (“The provisions of the present Convention must be respected by the High Contracting Parties under all 

circumstances. In case, in time of war, one of the belligerents is not a party to the Convention, its provisions shall 

nevertheless remain in force as between the belligerents who are parties thereto.”); 1929 GWS art. 25 (“The 

provisions of the present Convention shall be respected by the High Contracting Parties under all circumstances. If, 
90

neutrality have such a clause.108 Other treaties specify that if both Parties and non-Parties to a 

treaty are in an armed conflict, then Parties to the treaty remain bound by the treaty in their 

mutual relations, but not in relation to States that are not Parties to the treaty.

109 Treaties have

also provided that if a State in an armed conflict is not a Party to the treaty, but it accepts and 

applies the treaty’s provisions, then the Parties to the treaty are bound by the treaty in relation to 

that State.

110

These provisions, however, only determine the application of the treaty as matter of 

treaty law and not as customary international law. For example, although not all parties to World 

War II were Parties to Hague IV (thus failing to satisfy the requirements of Hague IV’s general 

participation clause), Hague IV’s humanitarian protections were deemed applicable as a matter 

of customary international law.

111

3.6.2 Reciprocity in the Enforcement of the Law of War. Reciprocity may be reflected in 

the enforcement of the law of war. For example, the principle of reciprocity is reflected in the 

concept of reprisal, which under very limited circumstances permits a belligerent to take action 

that would otherwise be unlawful in order to remedy an enemy’s breach of the law.112 However, 

the prohibitions on reprisal in the law of war also may be understood to reflect important 

limitations on the principle of reciprocity in enforcing the law of war.113

Reciprocity is also reflected in the principle of tu quoque, which may limit a State’s 

ability to deem unlawful and punish certain conduct by its adversary when that State has chosen 

to allow its forces to engage in that same conduct.

114 

Even if the application of a law of war rule does not depend on reciprocity as a matter of 

 

in time of war, a belligerent is not a party to the Convention, its provisions shall nevertheless remain in force as 

between all the belligerents who are parties to the Convention.”).

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

109 See, e.g., GPW art. 2 (“Although one of the Powers in conflict may not be a party to the present Convention, the 

Powers who are parties thereto shall remain bound by it in their mutual relations.”); GWS-SEA art. 2 (same); GPW 

art. 2 (same); GC art. 2 (same); CCW art. 7(1) (“When one of the parties to a conflict is not bound by an annexed 

Protocol, the parties bound by this Convention and that annexed Protocol shall remain bound by them in their 

mutual relations.”).

110 See CCW art. 7(2) (“Any High Contracting Party shall be bound by this Convention and any Protocol annexed 

thereto which is in force for it, in any situation contemplated by Article 1, in relation to any State which is not a 

party to this Convention or bound by the relevant annexed Protocol, if the latter accepts and applies this Convention 

or the relevant Protocol, and so notifies the Depositary.”); GWS art. 2 (“Although one of the Powers in conflict may 

not be a party to the present Convention, the Powers who are parties thereto ... shall furthermore be bound by the 

Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”); GWS-SEA art. 2 

(same); GPW art. 2 (same); GC art. 2 (same).

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

112 Refer to § 18.18 (Reprisals).

113 Refer to § 18.18.3 (Treaty Prohibitions on Reprisals). Consider also VCLT art. 60(5) (“Paragraphs 1 to 3 do not 

apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, 

in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”).

114 Refer to § 18.21.2 (Tu Quoque).
91

law, reciprocity may be important as a practical way of encouraging compliance by the adversary 

with the law of war.115

3.6.3 Law of War Rules May Incorporate Reciprocity. Apart from affecting whether 

rules apply, reciprocity may be incorporated into the operation of particular law of war rules. In 

other words, a law of war rule may operate differently depending upon an opponent’s behavior.

3.6.3.1 Reciprocity – “Golden Rule”. A principle of reciprocity may be 

understood to be reflected in law of war rules that reflect the golden rule.116 For example, the 

treatment of POWs has been based on the principle that POWs should be treated as the Detaining 

Power would want its forces held by the enemy to be treated.117 Similarly, during the process of 

releasing and repatriating POWs, it is proper to expect that each Party’s conduct with respect to 

the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the 

other.

118

3.6.3.2 Benefits-Burdens Principle in Law of War Rules. In some cases, the law 

of war requires that those seeking to obtain certain benefits under the law of war also accept 

certain burdens as a condition for receiving those benefits.119 For example, militia and volunteer 

corps that seek the privileges of combatant status during international armed conflict must meet

certain conditions (e.g., conducting their operations in accordance with the laws and customs of 

war) before receiving such privileges.120 In addition, hospital ships and coastal rescue craft must 

not be used for military purposes in order to receive their protection from capture and from being 

made the object of attack.121 Similarly, cultural property must not be used for military purposes 

in order to receive special protection.122

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

116 See J. Pictet, The Principles of International Humanitarian Law, 6 INTERNATIONAL REVIEW OF THE RED CROSS

455, 462 (Sept. 1966) (“Humanitarian law receives its impulse from moral science all of which can be summed up in 

one sentence, ‘do to others what you would have done to yourself’. This crystallizes the wisdom of nations and is 

the secret of happiness, or at least, of the best order of society. This fundamental precept can be found, in an almost 

identical form, in all the great religions, Brahmin, Buddhist, Christian, Confucian, Islamic, Jewish and Taoist. It is 

also the main prop of the positivists who do not base themselves on precepts of any given religion, but on social 

facts, considered objectively, through their own reasoning alone.”).

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

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

119 See, e.g., Al Warafi v. Obama, 716 F.3d 627, 631-32 (D.C. Cir. 2013) (“The Geneva Conventions and their 

commentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi was 

serving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has not 

carried Al Warafi to the destination. ... Without compliance with the requirements of the Geneva Conventions, the 

Taliban’s personnel are not entitled to the protection of the Convention.”); Jack L. Goldsmith III, Assistant Attorney 

General, “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 

OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 53-57 (explaining “the Geneva Conventions’ fundamental 

principle that warring entities must accept the Conventions’ burdens in order to claim their benefits.”).

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

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

122 Refer to § 7.12.2.2 (No Use for Military Purposes).
92

As another example, the rights and duties of belligerents and neutrals under the law of 

neutrality may be understood as correlative or reciprocal. For example, a neutral’s valid 

assertion of its rights may depend on whether it has fulfilled its corresponding neutral duties.123

3.6.3.3 Law of War Duties That Are Reinforced by Corresponding Duties for the 

Enemy. Similarly, the ability of a party to comply with a particular duty may be affected by 

whether its opponent has complied with a corresponding duty. For example, the ability of a 

party to discriminate in conducting attacks may be affected by whether its adversary has properly 

distinguished its military objectives from the civilian population and other protected persons and 

objects.

124

3.7 APPLYING RULES BY ANALOGY

In some cases, a rule developed specifically for one situation may be a useful and 

appropriate standard to apply in a different situation. This is sometimes called an application of 

a rule by analogy.

In some cases, there is a treaty requirement to apply rules by analogy; in other cases, it 

may be appropriate to apply law of war rules by analogy without a treaty-based requirement to 

do so. 

3.7.1 Treaty Requirement to Apply Rules by Analogy. The application of law of war 

rules by analogy is sometimes required by a treaty provision.

For example, under the 1949 Geneva Conventions, neutral or non-belligerent States must 

apply by analogy the rules relating to the treatment of the wounded and sick and of POWs when 

interning such persons under their duties of neutrality.125 Similarly, the GC rules for penal 

procedures for protected persons in occupied territory apply by analogy to proceedings against 

internees who are in the national territory of the Detaining Power.126

3.7.2 Examples of Law of War Rules and Areas in Which Such Rules Have Been 

Applied by Analogy. There are other situations in which it may be appropriate to apply law of 

war rules by analogy, even though there is no treaty requirement to do so. For example, it may 

be appropriate to apply the GWS and GWS-Sea rules for the respectful treatment and handling of 

enemy military dead to all persons.127 Other examples of law of war rules and situations in 

which it may be appropriate to apply those rules by analogy include: (1) applying jus in bello

rules in certain situations involving neutral or non-belligerent States; (2) applying law of war 

rules with a humanitarian purpose in situations outside the context of armed conflict; (3) 

 123 Refer to § 15.3.3 (Correlative or Reciprocal Nature of Rights and Duties Under the Law of Neutrality).

124 Refer to § 2.5.5 (Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a Party’s Own 

Persons and Objects).

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

126 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a 

Belligerent’s Home Territory).

127 Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).
93

applying occupation law provisions for the protection of the civilian population in situations not 

constituting belligerent occupation; and (4) applying certain international armed conflict rules in 

situations of non-international armed conflict. 

3.7.2.1 Jus in Bello Rules and Situations Involving Neutral or Non-Belligerent 

States. Although States developed jus in bello rules to address relations between enemies, some 

jus in bello rules may be applied by analogy to other situations, such as relations between a 

belligerent and a neutral or between co-belligerents. For example, a belligerent might take 

feasible precautions to protect the civilian population of a neutral or co-belligerent State from its 

military operations, even though such actions might not be required by the law of war.

128 In 

addition, although the GC excludes certain persons from the definition of protected person based 

on their nationality, it may be appropriate to afford such persons the standards of treatment for 

protected persons.

129 

3.7.2.2 Law of War Rules and Military Operations Outside the Context of Armed 

Conflict. Because law of war rules often reflect elementary considerations of humanity, it may 

be appropriate to apply such standards to military operations occurring outside the context of 

armed conflict.

130

3.7.2.3 Occupation Law and Situations Not Constituting Belligerent Occupation. 

Occupation law may also provide a useful framework for certain situations to which it may not 

be strictly applicable.

131 For example, it may be appropriate for a State that liberates its ally’s 

territory from enemy control to apply by analogy rules from the law of belligerent occupation to 

the administration of such territory, pending an agreement with the allied government.

132

3.7.2.4 International Armed Conflict Rules and Situations of Non-International 

Armed Conflict. Legal rules applicable to international armed conflict may sometimes be applied 

 128 For example, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS PACIFIC AIR FORCES, DIRECTORATE OF 

OPERATIONS ANALYSIS, Project CHECO [Contemporary Historical Examination of Current Operations] Report, 

Rules of engagement, November 1969-September 1972 (Mar. 1, 1973), reprinted in CONGRESSIONAL RECORD

S3011, S3014 (Mar. 18, 1985) (“The Cambodian incursion plan was a closely held secret timed to coincide with the 

President’s announcement. It was not until 27 April [1970] that 7AF was told to start definitive planning. Thus, 

there was no time to coordinate a new set of ROE for [neutral] Cambodia. Instead 7AF instructed its pilots to follow 

the normal rules for South Vietnam and to exercise extreme vigilance to avoid dropping ordnance on the 

noncombatant populace.”); Franklin Roosevelt, message to Winston Churchill, reprinted in WINSTON CHURCHILL,

CLOSING THE RING 467-68 (1985) (“I share fully with you your distress at the loss of life among the French 

population incident to our air preparations for ‘Overlord’. I share also with you a satisfaction that every possible 

care is being and will be taken to minimise civilian casualties. No possibility of alleviating adverse French opinion 

should be overlooked, always provided that there is no reduction of our effectiveness against the enemy at this 

crucial time. However regrettable the attendant loss of civilian lives is, I am not prepared to impose from this 

distance any restriction on military action by the responsible commanders that in their opinion might militate against 

the success of ‘Overlord’ or cause additional loss of life to our Allied forces of invasion.”).

129 Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under 

the GC).

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

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

132 Refer to § 11.1.3.2 (Liberation of Friendly Territory).
94

by analogy to non-international armed conflict.133

3.8 END OF HOSTILITIES AND THE APPLICATION OF THE LAW OF WAR

In general, law of war rules for the conduct of hostilities cease to apply when hostilities 

have ended. However, certain duties that have arisen during hostilities may continue after 

hostilities have ended, and certain new duties arise at the end of hostilities.

3.8.1 General Cessation of the Application of the Law of War at the End of Hostilities. 

Hostilities end when opposing parties decide to end hostilities and actually do so, i.e., when 

neither the intent-based nor act-based tests for when hostilities exist are met.

134 Of course, if the 

test for the existence of hostilities continues to be met, then hostilities cannot be deemed to have 

ceased.135 For example, hostilities may be terminated by:

• an agreement to end hostilities, normally in the form of a treaty of peace;

• unilateral declaration of one of the parties to end the war, provided the other party does 

not continue hostilities or otherwise decline to recognize the act of its enemy; 

• the complete subjugation of an enemy State and its allies; or

• a simple cessation of hostilities.136

3.8.1.1 Agreements to End Hostilities. Parties to a conflict often have negotiated

peace treaties to end hostilities.

137 Armistice agreements, i.e., temporary cease-fires, are 

negotiated to suspend hostilities.138 In addition, the U.N. Security Council may require certain 

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

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

135 David Kris, Assistant Attorney General, Response to Questions Submitted by Members Post Hearing, Questions 

Submitted by Mr. Skelton, Reforming the Military Commissions Act of 2006 and Detainee Policy: Hearing Before 

the Committee on Armed Services, U.S. House of Representatives, 111th Congress, 1st Session, 77 (Jul. 24, 2009) 

(“At a minimum, we believe active hostilities will continue--and detention of enemy forces will be authorized--as 

long as the United States is involved in active combat operations against such forces. In reaching the determination 

that active hostilities have ceased, we would likely consider factors that have been recognized in international law as 

relevant to the existence of an armed conflict, including the frequency and level of intensity of any continuing 

violence generated by enemy forces; the degree to which they maintain an organizational structure and operate 

according to a plan; the enemy’s capacity to procure, transport and distribute arms; and the enemy’s intent to inflict 

violence.”).

136 1956 FM 27-10 (Change No. 1 1976) ¶10 (“The law of land warfare generally ceases to be applicable upon: a. 

The termination of a war by agreement, normally in the form of a treaty of peace; or b. The termination of a war by 

unilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline 

to recognize the act of its enemy; or c. The complete subjugation of an enemy State and its allies, if prior to a or b; 

or d. The termination of a declared war or armed conflict by simple cessation of hostilities.”).

137 For example, Agreement on Ending the War and Restoring Peace in Viet Nam signed between the Government 

of the Democratic Republic of Viet Nam and the Government of the United States, and the Protocols to this 

Agreement, Jan. 27, 1973, T.I.A.S. 7542, 935 UNTS 2, 6; General Agreement for Peace in Bosnia and Herzegovina, 

Bosn. & Herz.-Croat.-F.R.Y, December 14, 1995, 35 I.L.M. 75 (also known as the Dayton Accords).

138 Refer to § 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty).
95

steps leading to the end of hostilities.139

In drafting and interpreting agreements for the cessation of hostilities, it is important to 

understand the rules normally applicable to the cessation of hostilities. These agreements may 

refer to provisions in the Geneva Conventions or other law of war instruments. These 

agreements may modify or supplement the rules normally applicable to the cessation of 

hostilities, e.g., by specifying precisely when a legal obligation is triggered or satisfied.

3.8.1.2 End of Hostilities Absent Written Agreement. Although States often have

concluded agreements to end hostilities, it is possible for hostilities to cease absent a written or 

formal agreement. For example, an armed conflict may end when a party is fully subjugated.

It may be difficult to determine when an armed conflict has ceased, as opposed, for 

example, to a lull in hostilities during which opposing forces may simply be reconstituting 

themselves.140 Hostilities generally would not be deemed to have ceased without an agreement,

unless the conditions clearly indicate that they are not be resumed or there has been a lapse of 

time indicating the improbability of resumption.141

3.8.2 Duties Continuing After Hostilities. Under the law of war, certain duties that have 

arisen during hostilities may continue after hostilities have ended. For example, POWs are 

protected by the GPW from the moment they fall into the power of the enemy until their final 

release and repatriation.142 Similarly, protected persons whose release, repatriation, or reestablishment may take place after the general close of military operations continue to benefit 

from the protection of the GC.143 In addition, duties under occupation law may continue after 

hostilities have ended.

144

3.8.3 Duties Arising at the End of Hostilities. Certain obligations are triggered by the 

end of hostilities. For example, the end of hostilities triggers obligations regarding the marking 

of minefields, demining, and clearance of unexploded ordnance.145 In addition, POWs and 

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

140 Mr. Seward, Secretary of State, to Mr. Goni, Spanish Minister, Jul. 22, 1868, VII MOORE’S DIGEST 336 (“It is 

certain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, the 

situation of peace may be restored by the long suspension of hostilities without a treaty of peace being made. 

History is full of such occurrences. What period of suspension of war is necessary to justify the presumption of the 

restoration of peace has never yet been settled, and must in every case be determined with reference to collateral 

facts and circumstances.”).

141 Manley O. Hudson, The Duration of the War Between the United States and Germany, 39 HARVARD LAW 

REVIEW 1020, 1029-30 (1926) (“If a war may be ended by a mere cessation of hostilities, the cessation of hostilities 

must either be under such conditions that it is clear that they are not to be resumed or there must be a lapse of time 

indicating the improbability of resumption.”).

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

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

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

145 Refer to § 6.12.12.2 (Clearance of Minefields, Mined Areas, Mines, Booby-Traps, and Other Devices After 

Hostilities); § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered 

by the Cessation of Active Hostilities).
96

protected persons, in general, must be released and returned to the party to the conflict to which 

they belong.146

3.9 LAW OF WAR DUTIES ALSO APPLICABLE IN PEACE

Some law of war obligations also apply in peace, i.e., even when a State is not engaged in 

an armed conflict. For example, States must: 

• disseminate information regarding the law of war;147

• train their armed forces in accordance with the law of war;148

• issue instructions and regulations for their armed forces in conformity with the law of 

war;149

• review the legality of new weapons;150

• take appropriate measures to prepare for the safeguarding of cultural property;151 and 

• take other appropriate measures to ensure the implementation and enforcement of law of 

war treaties.

152

States that are at peace have obligations under the law of neutrality in relation to States 

that are at war.153

 146 Refer to § 9.37 (Release and Repatriation After Hostilities); § 10.35 (Release, Return, Repatriation of Internees 

After the Close of Hostilities); § 11.11.8 (Disposition of Accused and Convicted Protected Persons Upon the Close 

of Occupation).

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

148 Refer to § 18.6.2 (Special Instruction or Training).

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

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

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

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

153 Refer to § 15.1.1 (Matters Addressed by the Law of Neutrality).
97

IV – Classes of Persons

Chapter Contents

4.1 Introduction

4.2 The Armed Forces and the Civilian Population

4.3 Lawful Combatants and Unprivileged Belligerents

4.4 Rights, Duties, and Liabilities of Combatants

4.5 Armed Forces of a State

4.6 Other Militia and Volunteer Corps

4.7 Levée en Masse

4.8 Rights, Duties, and Liabilities of Civilians

4.9 Military Medical and Religious Personnel

4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel

4.11 Authorized Staff of Voluntary Aid Societies

4.12 Staff of a Recognized Aid Society of a Neutral Country

4.13 Auxiliary Medical Personnel

4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property

4.15 Persons Authorized to Accompany the Armed Forces

4.16 Crews of Merchant Marine Vessels or Civil Aircraft

4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind 

Enemy Lines

4.18 Private Persons Who Engage in Hostilities

4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents

4.20 Children

4.21 Mercenaries

4.22 AP I Provisions on Civil Defense Personnel

4.23 Law Enforcement Officers

4.24 Journalists

4.25 Delegates or Representatives of the Protecting Powers

4.26 ICRC and Other Impartial Humanitarian Organizations

4.27 Determining the Status of Detainees in Cases of Doubt

4.1 INTRODUCTION

This Chapter addresses different classes of persons under the law of war. The law of war 

has created a framework of classes of persons to help confine the fighting between opposing 

military forces and thereby to help protect the civilian population from the effects of war.

1

 

This Chapter addresses issues relating to various classes of people under the law of war 

including: (1) who is included in the various classes, such as “combatant” and “civilian”; (2) the 

rights, duties, and liabilities of the persons in each class; and (3) how certain factual categories of 

persons, such as journalists, police officers, or child soldiers, fall within various classes and are 

treated under the law of war.

 1 Refer to § 2.5.1 (Distinction as a Framework of Legal Classes).
98

This Chapter briefly addresses specific rules that relate to the rights, duties, and liabilities 

of persons in the various classes to illustrate and provide an overview of that class. For more 

information about specific rules, practitioners should refer to the cross-referenced sections that 

addresses those specific rules.

2

4.1.1 General Notes on Terminology for Persons in the Law of War. The terms in the 

law of war that describe different classes of people are often used in confusing and contradictory 

ways. Although striving to use terms consistently within DoD reduces confusion, understanding 

the substantive standards that apply to a person in the applicable circumstances is more important 

than using a particular label or a particular system of classification. 

4.1.1.1 The Same Term Used With Different Meanings. Sometimes different 

meanings are given to the same term. For example, someone might be considered a “combatant”

in the sense that the person may be made the object of attack, but the person would not 

necessarily be a “combatant” in the sense that the person is privileged to engage in hostilities.3

Similarly, one source might use the term “noncombatant” to mean all persons who are 

not combatants, including persons placed hors de combat and civilians.

4

 Alternatively, another 

source might use the term “noncombatant” to refer specifically to persons who are members of 

the armed forces, but who are not combatants.5 In the past, some commentators have used 

“noncombatants” of the armed forces to refer to all members of the armed forces serving in 

combat service support or sustainment roles.6 In contemporary parlance, however, the term

“noncombatant” should generally be used to mean military medical and religious personnel,7 but 

also can include those combatants placed hors de combat.

8

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

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

4 See, e.g., L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 88 (2nd ed., 2000) (“Nationals of the 

adverse party are normally classified as combatants and non-combatants, with the latter including some members of 

the armed forces – chaplains, medical personnel and those hors de combat.”); LIEBER CODE art. 19 (“Commanders, 

whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and 

especially the women and children, may be removed before the bombardment commences.”).

5 See, e.g., HAGUE IV REG. art. 3 (“The armed forces of the belligerent parties may consist of combatants and 

noncombatants. In the case of capture by the enemy, both have the right to be treated as prisoners of war.”).

6 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 56 (“The distinction between combatants and 

noncombatants within the armed forces must be taken to correspond to the distinction between fighting troops and 

troops in service units. The fighting troops of an army carry out the actual military operations, whereas the service 

troops minister to the needs of the former and supply their various requirements. The Hague Regulations do not 

define the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like, 

whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is to 

support such action. Noncombatants would include personnel of the various ‘services’ comprising (inter alia) 

medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and militarygovernment units.”); GWS COMMENTARY 223 footnote 4 (“In correct terminology, however, ‘armed forces’ include 

‘combatants’ (i.e. soldiers bearing arms) and ‘non-combatants’ (who comprise not only medical personnel but also 

various other army services not called upon to carry arms).”).

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

8 Refer to § 5.9 (Persons Placed Hors de Combat).
99

4.1.1.2 Different Terms Used to Describe the Same Concept. Different legal 

sources may use different terms to refer to the same class of people under the law of war. For 

example, one source might use “belligerent,” whereas another source might use “combatant” to 

refer to the same class of people under the law of war.9

4.1.2 Classes and Categories Are Only the Starting Point for Legal Analysis. When 

analyzing a person’s rights, duties, and liabilities under the law of war, it is important to analyze 

the specific question in light of the applicable facts. Determining what class a person falls into, 

such as “combatant,” “civilian,” or “unprivileged belligerent,” may be only the first step in a 

legal analysis. For example, whether a person may be the object of attack, may be detained, is 

entitled to POW status, or may be punished for their actions are all different questions. Although 

these questions are often related to one another and associated with the general classes of 

“combatant” and “civilian,” each question requires its own specific analysis. This specific 

analysis should be done in each case, applying the legal rules to the facts, rather than deriving an 

answer based on a conclusory labeling of a person as, for example, an “enemy combatant.”10

Indeed, some persons might, for some purposes, be treated like “combatants,” but for other 

purposes be treated like “civilians.”11

4.2 THE ARMED FORCES AND THE CIVILIAN POPULATION

The law of war has recognized that the population of an enemy State is generally divided 

into two classes: the armed forces and the civilian population, also sometimes called, 

respectively, “combatants” and “civilians.” This division results from the principle of 

distinction.12

4.2.1 Development of the Distinction Between the Armed Forces and the Civilian 

Population. A citizen or national of a State that is a party to a conflict, as one of the constituents 

of a State that is engaged in hostilities, may be subjected to the hardships of war by an enemy 

State.

13 However, because the ordinary members of the civilian population make no resistance, 

it has long been recognized that there is no right to make them the object of attack.

14 Thus, 

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

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

11 Refer to § 4.2.3 (Mixed Cases).

12 Refer to § 2.5 (Distinction).

13 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 772-73 (1950) (“The alien enemy is bound by an allegiance which 

commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be 

faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him 

from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”); LIEBER CODE

art. 21 (“The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or 

nation, and as such is subjected to the hardships of the war.”).

14 See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 204 (§57) (“Those private subjects of the belligerents 

who do not directly or indirectly belong to the armed forces do not take part in it; they do not attack and defend; and 

no attack ought therefore to be made upon them.”); G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 15-16 

(20.3) (1908) (“Feeble old men, women, and children, and sick persons, come under the general description of 

enemies, and we have certain rights over them as members of the community with which we are at war; but, as they 

are enemies who make no resistance, we have no right to maltreat their persons, or to use any violence toward them, 

much less to take their lives.”); LIEBER CODE arts. 22, 23, 25 (explaining that protection of the “unarmed citizen,” 
100

States have departed from ancient and medieval practices of war between entire peoples, and 

instead, as much as possible, have treated war as a contention between the professional military 

forces of warring States.

15 This separation of the armed forces and the civilian population has 

greatly mitigated the evils of war.

16

4.2.2 No Person May Claim the Distinct Rights Afforded to Both Combatants and 

Civilians at the Same Time. The classes of combatants and civilians have distinct rights, duties, 

and liabilities; no person may claim the distinct rights afforded both classes at the same time.17 

For example, a person may not claim the combatant’s right to attack enemy forces while also 

claiming the civilian’s right not to be made the object of attack.18

4.2.3 Mixed Cases. Certain classes of persons do not fit neatly within the dichotomy of 

the armed forces and the civilian population, i.e., combatants and civilians. Each of these 

 

the “inoffensive individual,” or the “inoffensive citizen of the hostile country” is the rule) (emphasis added); 

VATTEL, THE LAW OF NATIONS 282 (3.8.145) (“Women, children, feeble old men, and the sick ... these are enemies 

who make no resistance, and consequently the belligerent has no right to maltreat or otherwise offer violence to 

them, much less to put them to death.”).

15 See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 204 (§57) (“During antiquity, and the greater part 

of the Middle Ages, war was a contention between the whole populations of the belligerent States. In time of war 

every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or 

infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminating 

practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or

indirectly belong to their armed forces, and, with certain exceptions, their private property, are protected by 

International Law.”); LIEBER CODE art. 22 (“Nevertheless, as civilization has advanced during the last centuries, so 

has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging 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.”).

16 See SPAIGHT, WAR RIGHTS ON LAND 37 (“The separation of armies and peaceful inhabitants into two distinct 

classes is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has been 

incalculable.”); G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 20-22 (20.3) (1908) (“But afterwards in 

Italy, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classes 

of persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to his 

person. But as wars are now carried on by regular troops, or, at least, by forces regularly organised, the peasants, 

merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in the 

ordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy. 

So long as they refrain from all hostilities, pay the military contributions which may be imposed on them and quietly 

submit to the authority of the belligerent who may happen to be in the military possession of their country, they are 

allowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This system 

has greatly mitigated the evils of war, ... .”).

17 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶60 (dividing into “prisoners of war” and “the civilian 

population,” and noting that “[p]ersons in each of the foregoing categories have distinct rights, duties, and 

disabilities.”); 1940 RULES OF LAND WARFARE ¶8 (“The enemy population is divided in war into two general 

classes, known as, the armed forces and the peaceful population. Both classes have distinct rights, duties, and 

disabilities, and no person can belong to both classes at one and the same time.”); 1934 RULES OF LAND WARFARE

¶8 (same); 1914 RULES OF LAND WARFARE ¶29 (same).

18 See 1958 UK MANUAL ¶86 (“It is one of the purposes of the law of war to ensure that an individual who belongs 

to one class or the other shall not be permitted to enjoy the privileges of both. Thus he must not be allowed to kill or 

wound members of the army of the opposing belligerent and subsequently, if captured, to claim that he is a peaceful 

citizen.”).
101

particular classes has some attributes of combatant status and some attributes of civilian status; in 

certain respects persons in these classes are treated like combatants, but in other respects they are

treated like civilians. These classes may be classified into three groups: (1) certain personnel 

engaged in humanitarian duties; (2) certain authorized supporters of the armed forces; and (3) 

unprivileged belligerents.

4.2.3.1 Certain Personnel Engaged Humanitarian Duties. Certain categories of 

personnel have humanitarian duties that involve them in hostilities but also entitle them to 

special protections:

• military medical and religious personnel;

19

• authorized staff of voluntary aid societies;20

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

• auxiliary medical personnel;

22 and

• personnel engaged in the protection of cultural property.23

4.2.3.2 Certain Authorized Supporters of the Armed Forces. Certain categories of 

persons are not members of the armed forces, but are nonetheless authorized to support the 

armed forces in the fighting: 

• persons authorized to accompany the armed forces, but who are not members thereof;24

and

• members of the crews of merchant marine vessels or civil aircraft of a belligerent.

25

4.2.3.3 Unprivileged Belligerents. Unprivileged belligerents generally are subject 

to the liabilities of both combatant and civilian status, and include:

26 

• persons engaging in spying, sabotage, and similar acts behind enemy lines;

27 and

• private persons engaging in hostilities.

28

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

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

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

22 Refer to § 4.13 (Auxiliary Medical Personnel).

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

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

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

26 Refer to § 4.3.4 (Types of Unprivileged Belligerents).

27 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
102

4.3 LAWFUL COMBATANTS AND UNPRIVILEGED BELLIGERENTS

In addition to distinguishing between the armed forces and the civilian population, the 

law of war also distinguishes between “privileged” and “unprivileged,” or “lawful” and 

“unlawful” combatants. As the Supreme Court has explained:

Lawful combatants are subject to capture and detention as prisoners of war by 

opposing military forces. Unlawful combatants are likewise subject to capture 

and detention, but in addition they are subject to trial and punishment by military 

tribunals for acts which render their belligerency unlawful.29

“Unlawful combatants” or “unprivileged belligerents” are persons who, by engaging in 

hostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g., 

being made the object of attack and subject to detention), but who are not entitled to any of the 

distinct privileges of combatant status (e.g., combatant immunity and POW status).

30

4.3.1 “Unprivileged Belligerents” as a Category in Treaty Law. States have, in a few 

cases, explicitly recognized in treaties certain categories of unprivileged belligerents, such as 

spies and saboteurs.31 However, States have generally refrained from explicitly recognizing 

unprivileged belligerents as a class in treaties in the way that classes of lawful combatants have 

been defined.32 

Law of war treaties have been understood to reflect restrictions on the conduct of 

hostilities by States,33 and States have been reluctant to conclude treaties to afford unprivileged 

enemy belligerents the distinct privileges of POW status or the full protections afforded 

civilians.34

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

29 Ex parte Quirin, 317 U.S. 1, 31 (1942). See also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“The 

capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by 

‘universal agreement and practice,’ are ‘important incident[s] of war.’”) (quoting Ex parte Quirin at 28, 30).

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

31 See, e.g., HAGUE IV REG. arts. 29-31 (defining the category of spy and regulating the treatment of captured spies); 

GC art. 5 (regulating the treatment of certain protected persons “detained as a spy or saboteur, or as a person under 

definite suspicion of activity hostile to the security of the Occupying Power”). See also GC COMMENTARY 5 (“It 

may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or 

irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting 

deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It 

might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been 

possible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often been 

used lightly, and applied to such trivial offences, that it was not advisable to leave the accused at the mercy of those 

detaining them.”).

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

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

34 See, e.g., IIA FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 433 (ICRC representative 

explaining that “[t]he present Conference was engaged in framing a Convention to protect members of armed forces 

and similar categories of persons, such as members of organized resistance movements, and another convention to 
103

Although seldom explicitly recognized as a class in law of war treaties, the category of 

unprivileged belligerent may be understood as an implicit consequence of creating the classes of 

lawful combatants and peaceful civilians.35 The concept of unprivileged belligerency, i.e., the 

set of legal liabilities associated with unprivileged belligerents, may be understood in opposition 

to the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivileged 

belligerents include lawful combatants who have forfeited the privileges of combatant status by 

engaging in spying or sabotage, and private persons who have forfeited one or more of the

protections of civilian status by engaging in hostilities.

36

4.3.2 Combatant – Notes on Terminology. 

4.3.2.1 “Combatant” and “Belligerent”. “Combatant” and “belligerent” have 

sometimes been used interchangeably and, in this usage, they generally describe individuals who 

are not “civilians.”

“Belligerent,” however, has also sometimes used to describe States and to contrast such 

States with “neutral” or “non-belligerent” States.37 “Belligerent” has also been used to contrast 

armed groups that have “belligerent rights” with armed groups that lack such rights, such as 

“insurgents.”38

4.3.2.2 “Lawful,” “Privileged,” and “Qualified”. The distinction between 

“lawful” and “unlawful” combatants has sometimes been called a distinction between 

 

protect civilians. Although the two Conventions might appear to cover all the categories concerned, irregular 

belligerents were not actually protected.”); id. at 612 (Swiss representative taking the view that “[i]n regard to the 

legal status of those who violated the laws of war, the [Civilians] Convention could not of course cover criminals or 

saboteurs.”); id. at 621 (UK representative rejecting a draft which “would mean that persons who were not entitled 

to protection under the Prisoners of War Convention would receive exactly the same protection by virtue of the 

Civilians Convention, so that all persons participating in hostilities would be protected, whether they conformed to 

the laws of war or not. ... The whole conception of the Civilians Convention was the protection of civilian victims 

of war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war 

to which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but should 

not be entitled to all the benefits of the Convention.”).

35 See, e.g., 10 U.S.C. § 948a (“The term ‘unprivileged enemy belligerent’ means an individual (other than a 

privileged belligerent) who” engages in certain conduct); Ex parte Quirin, 317 U.S. 1, 35 (1942) (“Our Government, 

by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of 

unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and 

distinctive emblems.’”).

36 Refer to § 4.3.4 (Types of Unprivileged Belligerents).

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

38 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III 

CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3448 (“The concept of 

‘insurgency’ was traditionally used to describe a conflict that did not meet the rigid standards of customary 

international law for recognition of belligerency.”); Anthony Eden, Secretary of State for Foreign Affairs, United 

Kingdom, Oral Answers to Questions, Dec. 8, 1937, HANSARD 330 HOUSE OF COMMONS DEBATES § 357 (“His 

Majesty’s Ambassador at Hendaye has been instructed to inform the Salamanca authorities that as belligerent rights 

have not been recognised to either party in the Spanish conflict. His Majesty’s Government are not prepared to 

admit their right to declare any such blockade.”). Refer to § 3.3.3 (State Recognition of Armed Groups as 

Belligerents).
104

“privileged” and “unprivileged” belligerents, i.e., distinguishing between persons who are 

entitled to the privileges of combatant or belligerent status, and those who are not.39 This 

distinction has also sometimes been called a distinction between “qualified” and “unqualified”

belligerents, i.e., distinguishing between persons who have met the qualifications to receive the 

privileges of combatant status and those who have not.40

4.3.2.3 “Combatant” Used Without Modification. “Combatant” and 

“belligerent,” when used without modification (such as “lawful” or “unlawful,” or “privileged”

or “unprivileged”), have often referred implicitly to lawful or privileged combatants.41 

However, in some cases, “combatant” or “belligerent” has been used to refer to all persons who 

engage in hostilities, without taking a position as to whether they are entitled to receive the 

privileges of combatant status.

4.3.2.4 General Usage of “Combatant” in This Manual. This manual generally 

uses “combatant” to refer implicitly to lawful or privileged combatants. 

This manual generally uses the term “unprivileged belligerent” (instead of, e.g., 

“unlawful combatant,” “unlawful belligerent,” “unprivileged combatant,” etc.) to refer to persons 

who are subject to one or more of the liabilities of combatant status, but are not entitled to 

receive its distinct privileges.

4.3.3 Types of Lawful Combatants. Three classes of persons qualify as “lawful” or 

“privileged” combatants: 

• members of the armed forces of a State that is a party to a conflict, aside from certain 

categories of medical and religious personnel;42

• under certain conditions, members of militia or volunteer corps that are not part of the 

armed forces of a State, but belong to a State;

43 and

• inhabitants of an area who participate in a kind of popular uprising to defend against 

foreign invaders, known as a levée en masse.

44

4.3.4 Types of Unprivileged Belligerents. Unprivileged belligerents may generally be 

 39 See, e.g., 1958 UK MANUAL ¶96 (“Should regular combatants fail to comply with these four conditions, they may 

in certain cases become unprivileged belligerents. This would mean that they would not be entitled to the status of 

prisoners of war upon their capture.”); Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, 

and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323 (1951); LIEBER CODE art. 49 (describing who 

is “exposed to the inconveniences as well as entitled to the privileges of a prisoner of war”).

40 See, e.g., JAMES M. SPAIGHT, AIRCRAFT IN WAR 51 (1914) (referring to “that outlaw of war law—the unqualified 

belligerent”); HAGUE IV REG. arts. 1-3 (describing who meets “[t]he Qualifications of Belligerents”).

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

hostilities.”).

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

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

44 Refer to § 4.7 (Levée en Masse).
105

classified into two categories that may be distinguished from one another by the presence or 

absence of State authorization:

• persons who have initially qualified as combatants (i.e., by falling into one of the three 

categories mentioned above), but who have acted so as to forfeit the privileges of 

combatant status by engaging in spying or sabotage;

45 and

• persons who never meet the qualifications to be entitled to the privileges of combatant 

status, but who have, by engaging in hostilities, incurred the corresponding liabilities of 

combatant status (i.e., forfeited one or more of the protections of civilian status).

46

These two categories of unprivileged belligerents generally receive the same treatment.

47 

However, the distinction that the first category has State authorization, while the second category 

does not, may be important and create different legal results. For example, the combatant who 

spies regains the entitlement to the privileges of combatant status upon returning to friendly 

lines, but the private person who spies cannot regain a status to which the person was never 

entitled.

48 Similarly, acts of unprivileged belligerency on the high seas may constitute piracy, a 

crime under international law, although similar acts by persons acting under State authority, even 

if they were not members of the armed forces, could not constitute piracy.49

4.4 RIGHTS, DUTIES, AND LIABILITIES OF COMBATANTS

Combatants have a special legal status, i.e., certain rights, duties, and liabilities. As 

discussed below, combatants may engage in hostilities and are liable to being made the object of 

attack by enemy combatants. Combatants must conduct their operations in accordance with the 

law of war. They have the right to POW status if they fall into the power of the enemy during

international armed conflict. Combatants have legal immunity from domestic law for acts done 

under military authority and in accordance with the law of war.

4.4.1 Combatants – Conduct of Hostilities. In general, combatants may engage in 

hostilities and may be made the object of attack by enemy combatants.50 However, combatants 

placed hors de combat must not be made the object of attack.51

Combatants must conduct their operations in accordance with the law of war. For 

example, combatants must take certain measures to distinguish themselves from the civilian

population.52 Combatants also may not kill or wound the enemy by resort to perfidy.

53 

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

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

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

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

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

50 Refer to § 5.7 (Combatants).

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

52 Refer to § 5.4.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).
106

Combatants may make enemy combatants and other military objectives the object of attack, but 

may not make the civilian population and other protected persons and objects the object of 

attack.

54 Combatants must exercise due regard to reduce the risk of incidental harm to the 

civilian population and other persons and objects that may not be made the object of attack.

55 

Chapter V addresses in detail the rules that combatants must follow in the conduct of hostilities.

4.4.2 Combatants – POW Status During Detention. Combatants are liable to capture and 

detention by enemy combatants, but are entitled to POW status when they fall into the power of 

the enemy during international armed conflict. POWs, like all detained individuals, must be 

treated humanely.

56 In addition, POWs are afforded a variety of privileges in detention in 

accordance with the GPW, such as camp canteens, advances of pay, and permission to wear their 

badges of rank, nationality, or decorations.

57 POWs also have duties in detention, such as 

identifying themselves to their captors,

58 and they are subject to the laws, regulations, and orders 

of the Detaining Power.

59 Chapter IX addresses in detail the treatment of POWs and their duties.

In general, POWs shall be released and repatriated without delay after the cessation of 

active hostilities.

60 However, seriously wounded, injured, or sick POWs should be returned 

before the end of hostilities.61 In addition, after the hostilities have ended, certain POWs may be 

held in connection with criminal proceedings.62

In general, combatants retain their right to POW status and treatment, even if they are 

alleged to have committed crimes before capture.

63 For example, POWs are entitled to a variety 

of rights in relation to judicial proceedings against them.64 In addition, POWs serving 

disciplinary punishment shall continue to receive the benefits of the GPW, except insofar as 

these benefits are necessarily rendered inapplicable by the mere fact that the POW is confined.

65

Combatants captured while engaged in spying or sabotage forfeit their entitlement to 

POW status.

66 In cases of doubt as to whether a detainee is entitled to POW status, that person 

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

54 Refer to § 5.5 (Discrimination in Conducting Attacks).

55 Refer to § 5.10 (Proportionality in Conducting Attacks).

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

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

58 Refer to § 9.8 (Interrogation of POWs).

59 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the 

Detaining Power).

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

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

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

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

64 Refer to § 9.28 (Judicial Proceedings and Punishment).

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

66 Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).
107

should be afforded the protections of POW status until their status has been determined by a 

competent tribunal.67

4.4.3 Combatants - Legal Immunity From a Foreign State’s Domestic Law. International 

law affords combatants a special legal immunity from the domestic law of the enemy State for 

their actions done in accordance with the law of war.68 This legal immunity is sometimes called 

the “combatant’s privilege” or “combatant immunity.” This means that a combatant’s “killing, 

wounding, or other warlike acts are not individual crimes or offenses,”69 if they are done under 

military authority and are not prohibited by the law of war.70 Similarly, a combatant’s warlike 

acts done under military authority and in accordance with the law of war also do not create civil 

liability.71

Combatants lack legal immunity from an enemy State’s domestic law for acts that are 

prohibited by the law of war.72 Also, combatants lack legal immunity from an enemy State’s 

domestic law while engaging in spying or sabotage.

73 Combatants, however, must receive a fair 

and regular trial before any punishment.

74

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

68 This legal immunity would also be applicable with respect to neutral States to the extent they sought to exercise 

jurisdiction over the conduct of belligerents. Traditionally, however, neutral States generally did not assert 

jurisdiction over conduct committed between belligerents. Refer to § 18.21.1 (Jurisdiction Over War Crimes).

69 LIEBER CODE art. 57. See also Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) 

(explaining that “legitimate ‘acts of warfare,’ however murderous, do not justify criminal conviction” and that “it is 

no ‘crime’ to be a soldier.”); WINTHROP, MILITARY LAW & PRECEDENTS 778 (“The State is represented in active 

war by its contending army, and the laws of war justify the killing or disabling of members of the one army by those 

of the other in battle or hostile operations.”); Arce v. State, 202 S.W. 951 (Texas Court of Criminal Appeals 1918) 

(reversing homicide conviction of Mexican soldiers prosecuted in connection with hostilities between the United 

States and Mexico). Consider AP I art. 43(2) (“combatants ... have the right to participate directly in hostilities.”).

70 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“acts 

done in time of war under the military authority of an enemy cannot involve criminal liability on the part of officers 

or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); Daniel Webster, 

Department of State, Letter to John G. Crittenden, Attorney General, Mar. 15, 1841, reprinted in THE DIPLOMATIC 

AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 134-35 (1848) (explaining “[t]hat an 

individual forming part of a public force, and acting under the authority of his Government, is not to be held 

answerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized 

nations”).

71 See Freeland v. Williams, 131 U.S. 405, 416 (1889) (“Ever since the case of Dow v. Johnson, 100 U.S. 158, the 

doctrine has been settled in the courts that in our late civil war, each party was entitled to the benefit of belligerent 

rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare, 

under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under 

such authority.”); Dow v. Johnson, 100 U.S. 158, 165 (1879) (“There would be something singularly absurd in 

permitting an officer or soldier of an invading army to be tried by his enemy, whose country it had invaded. The 

same reasons for his exemption from criminal prosecution apply to civil proceedings.”).

72 See United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT

223 (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state 

if the state in authorizing action moves outside its competence under international law.”).

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

74 Refer to § 9.28.4 (Rights of Defense and Trial Procedure).
108

4.4.3.1 Combatants - Legal Immunity and POW Status. The “combatant’s 

privilege” from liability under domestic law has been associated with POW status.

75 In that 

vein, U.S. courts have inferred from provisions of the GPW the combatant’s privilege against 

being prosecuted by capturing States.

76 However, the legal immunity that combatants may be 

afforded is not the same as POW status. For example, a combatant’s conduct may be protected 

by legal immunities even when that person is not in the power of the enemy and thus is not a 

POW. As another example of how POW status and legal immunity may differ, the GPW 

generally affords the same treatment to all classes of POWs identified in Article 4. However, not 

all the categories of POWs identified in Article 4 of the GPW, such as persons authorized to

accompany the armed forces, receive the general license to commit belligerent acts that is 

afforded members of the armed forces.

77 

4.4.3.2 Combatants – Legal Immunity and Sovereignty. In addition to being 

associated with humanitarian principles governing the treatment of POWs, the combatant’s 

privilege has also been viewed as an application of the immunity that international law affords 

States from each other’s jurisdiction.78 In this view, “the act of the soldier who conforms to the 

law of war and does not engage in private acts of warfare is an act of state depriving the enemy 

 75 See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III 

CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3451 (“It is wellaccepted that individuals who enjoy the status of prisoner of war are generally immune from prosecution for 

legitimate acts of war in international armed conflicts.”); ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: 

A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 305 (1976) (“there has 

traditionally been a close relationship between the concept of prisoners of war and that of lawful combatants.”);

LIEBER CODE art. 56 (“A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge 

wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, 

by mutilation, death, or any other barbarity.”).

76 See United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (memorandum opinion) (interpreting 

articles 87 and 99 of GPW to “make clear that a belligerent in a war cannot prosecute the soldiers of its foes for the 

soldiers’ lawful acts of war”); United States v. Khadr, 717 F.Supp.2d. 1215, 1222 footnote 7 (USCMCR 2007) 

(same); United States v. Pineda, 2006 U.S. Dist. LEXIS 17509, 6-8 (D.D.C. Mar. 23, 2006) (D.D.C. 2006) (same). 

See also United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990) (“As is evident from its text and 

construed as a whole, the essential purpose of the Geneva Convention Relative to the Treatment of Prisoners of War 

is to protect prisoners of war from prosecution for conduct which is customary in armed conflict.”).

77 ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAW 

APPLICABLE IN ARMED CONFLICTS 305 (1976) (“The relationship between the concepts of lawful combatants and 

prisoners of war has been said to arise from the fact that lawful combatants are always entitled to prisoner-of-war 

status, while the reverse is not necessarily true, as there are categories of persons entitled to the status of prisoners of 

war who as civilians enjoy no general license to commit belligerent acts.”).

78 Cf. United States v. Thierichens, 243 F. 419, 420 (E.D. Pa. 1917) (“The well-settled rule that, under the comity 

existing between nations, the public armed ship of a friendly nation, acting under the immediate and direct command 

of the sovereign power, is not to be interfered with by the courts of a foreign state, is based upon the principle that, if 

the courts did attempt to assume jurisdiction over such vessel, it would require the sovereign of the nation to which 

the vessel belongs to be impleaded in the court from which the process issued, and, by common consent of nations, 

such situations could not arise without interference with the power and dignity of the foreign sovereign. Therefore 

the courts will not assume jurisdiction over such vessel or its officers, while acting as such, but leave controversies 

arising out of the acts of the vessel, and its officers, while acting in their official character, for settlement through 

diplomatic channels.”).
109

state of jurisdiction.”79 This view of the combatant’s privilege requires that combatants act 

under the commission of a belligerent State.80 This view also reflects the principle that only 

States may authorize the resort to force.81

4.4.4 Nationality and Combatant Status. 

4.4.4.1 Nationals of Neutral States in Enemy Forces. Members of enemy armed 

forces may include nationals of neutral or non-belligerent States. For example, the U.S. armed

forces include many foreign nationals, and the United States could be engaged in hostilities when 

those foreign nationals’ home States are not. Nationals of a neutral or non-belligerent State who 

are members of the armed forces of a belligerent State should be treated like other members of 

that State’s armed forces.82 For example, such nationals are entitled to POW status if they fall 

into the power of the enemy during international armed conflict.83

4.4.4.2 Nationals of a State Who Join Enemy Forces. The special privileges that 

international law affords combatants generally do not apply between a national and his or her 

State of nationality.

84 For example, provisions of the GPW assume that POWs are not nationals 

of the Detaining Power.85 Thus, international law does not prevent a State from punishing its 

 79 Richard Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 BRITISH YEAR 

BOOK OF INTERNATIONAL LAW 382, 385 (1951). See also Hans Kelsen, Collective and Individual Responsibility in 

International Law with Particular Regard to the Punishment of War Criminals, 31 CALIFORNIA LAW REVIEW 530, 

549 (1943) (“That a State violates international law if it punishes as a criminal, according to its national law, a 

member of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that the 

State by so doing makes an individual responsible for an act of another State. According to international law, the act 

in question must be imputed to the enemy State and not to the individual who in the service of his State has 

performed the act. It cannot be considered as a crime of the individual because it must not be considered as his act 

at all.”); LIEBER CODE art. 41 (“All municipal law of the ground on which the armies stand, or of the countries to 

which they belong, is silent and of no effect between armies in the field.”).

80 See Wharton, Com. Am. Law, § 221, VII MOORE’S DIGEST 175 (“It is necessary in order to place the members of 

an army under the protection of the law of nations, that it should be commissioned by a state. ... Hence, all civilized 

nations have agreed in the position that war to be a defence to an indictment for homicide or other wrong, must be 

conducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of a 

belligerent.”).

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

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

83 LEVIE, POWS 74-75 (“Normally, the nationality of the individual falling within one of the categories enumerated 

in Article 4 is that of the belligerent Power for which he is fighting. However, he may have the nationality of a 

neutral, or of an ally of the belligerent in whose armed forces he is serving at the time that he falls into the power of 

the enemy--or even of the adverse Party, or one of its allies. Does this affect his entitlement to prisoner-of-war 

status? Apparently there is no dispute with respect to the entitlement to prisoner-of-war status of an individual who 

is a national of a neutral State or of a State which is an ally of the belligerent in whose armed forces he is serving.”).

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

85 See, e.g., GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining Power shall take into 

consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is 

not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his 

own will.”). Refer to § 9.26.6 (Prohibited Penalties); § 9.28.6 (Death Sentences).
110

nationals whom it may capture among the ranks of enemy forces.

86 This rule is significant in 

non-international armed conflicts in which a State is fighting a rebel group composed of its own 

citizens.

87

Although, as a matter of international law, nationals may not assert the privileges of 

combatant status against their own State, they may be subject to the liabilities of combatant 

status in relation to their own State under that State’s domestic law. For example, under U.S. 

law, U.S. nationals who join enemy forces have been subject to the liabilities of combatant 

status, such as potentially being made the object of attack or detained.

88

4.4.4.3 Nationals of Allied or Co-Belligerent States. Nationals of an allied or cobelligerent State who are serving with enemy forces are in a position that is similar to the 

position of nationals of a State who are serving with enemy forces. If the nationals of an allied 

or co-belligerent State who are serving with enemy forces are captured by a State, they may be 

transferred to their State of nationality (i.e., the co-belligerent or allied State), which is not 

required to afford them POW status.89 However, U.S. practice as the Detaining Power in this 

situation has been to afford POW treatment to such individuals if they claim such protection.90 

 86 See Public Prosecutor v. Oie Hee Koi and Associated Appeals (UK Privy Council, Dec. 4 1967), LEVIE,

DOCUMENTS ON POWS 737, 741 (quoting LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW) (“‘The privileges 

of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the 

forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. 

The same applies to traitorous subjects of a belligerent who, without having been members of his armed forces, fight 

in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors 

may be seized and punished.’ This edition was published in 1951 after Aug. 12, 1949, the date of the Geneva 

Conventions, and in their lordships’ opinion correctly states the relevant law.”).

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

88 See, e.g., Hamdi v. Rumsfeld 542 U.S. 507, 519 (2004) (plurality) (“There is no bar to this Nation’s holding one 

of its own citizens as an enemy combatant.”); Ex parte Quirin, 317 U.S. 1, 37 (1942) (“Citizenship in the United 

States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful 

because in violation of the law of war.”); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) (rejecting the argument of 

petitioner, an Italian army draftee, that he could not be subject to the liabilities of combatant status and detained 

because he was a U.S. citizen).

89 For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The 

United States Army, 1776-1945, 198 (Jun. 24, 1955) (“During the [Second World] war many soldiers of a state of 

origin other than Germany were found in German uniform among German prisoners of war. Therefore when Allied 

forces captured these prisoners they segregated them by nationalities. The individual PW was then interrogated by 

representatives of his country’s government in exile. If acceptable to that government and if he was willing, the PW 

was sent to Great Britain for service in an army unit of his national government. If the PW was rejected, he was 

treated in all respects as a German prisoner of war.”).

90For example, Announcement Concerning Soviet Allegations on Allied Prisoners of War, May 3, 1945, 12 

DEPARTMENT OF STATE BULLETIN 864 (May 6, 1945) (“In as much as the American Government has always 

insisted that all wearers of the American uniform, whether American citizens or not, are, as American soldiers, 

entitled to full protection of the [1929] Geneva convention and has so informed the enemy, these German prisoners 

of war of apparent Soviet nationality claiming such protection are being held as German prisoners of war in order to 

protect American soldiers in enemy hands.”).
111

4.5 ARMED FORCES OF A STATE

Members of the armed forces of a State, including members of all groups that are part of 

the armed forces of a State, but excluding certain medical and religious personnel,91 receive 

combatant status (i.e., its rights, duties, and liabilities) by virtue of that membership.92 This 

section addresses various classes of persons within the armed forces of a State.

4.5.1 Components of Armed Forces. The armed forces of a State may include a variety 

of components, such as militia or volunteer corps that form part of those armed forces.

93

The U.S. armed forces include members of the active duty military, the reserve forces, 

and the National Guard. U.S. armed forces also include the Coast Guard, which normally 

operates under the Department of Homeland Security.

94

The U.S. armed forces may also include the Commissioned Corps of the U.S. Public 

Health Service, which normally operates under the Department of Health and Human Services.

95 

Similarly, members of the Commissioned Corps of the National Oceanic and Atmospheric 

Administration, which normally operates under the Department of Commerce, may also become 

part of the U.S. armed forces.

96 Members of these and other organizations assigned to, and 

serving with, the U.S. armed forces may be subject to the Uniform Code of Military Justice.

97

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

92 See GPW art. 4A(1) (defining “prisoners of war, in the sense of the present Convention,” to include “(1) 

[m]embers of the armed forces of a Party to the conflict” who have fallen into the power of the enemy); HAGUE IV

REG. art. 1 (“The laws, rights, and duties of war apply ... to armies”); LIEBER CODE art. 57 (“So soon as a man is 

armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent;”). Cf. sources cited in 

footnote 150 in § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).

93 See GPW art. 4A(1) (defining “prisoners of war, in the sense of the present Convention,” to include “members of 

militias or volunteer corps forming part of such armed forces” who have fallen into the power of the enemy); HAGUE 

IV REG. art. 1 (“In countries where militia or volunteer corps constitute the army, or form part of it, they are 

included under the denomination ‘army.’”).

94 See 10 U.S.C. § 101(a)(4) (explaining that, for the purposes of U.S. domestic law, “the term ‘armed forces’ means 

the Army, Navy, Air Force, Marine Corps, and Coast Guard.”); 14 U.S.C. § 1 (“The Coast Guard as established 

January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times. The 

Coast Guard shall be a service in the Department of Homeland Security, except when operating as a service in the 

Navy.”).

95 42 U.S.C. § 217 (“In time of war, or of emergency involving the national defense proclaimed by the President, he 

may by Executive order declare the commissioned corps of the [Public Health] Service to be a military service.”).

96 33 U.S.C. § 3061 (“The President may, whenever in the judgment of the President a sufficient national emergency 

exists, transfer to the service and jurisdiction of a military department such vessels, equipment, stations, and officers 

of the Administration as the President considers to be in the best interest of the country. ... An officer of the 

Administration transferred under this section, shall, while under the jurisdiction of a military department, have 

proper military status and shall be subject to the laws, regulations, and orders for the government of the Army, 

Navy, or Air Force, as the case may be, insofar as the same may be applicable to persons whose retention 

permanently in the military service of the United States is not contemplated by law.”).

97 10 U.S.C. § 802(a)(8) (“Members of the National Oceanic and Atmospheric Administration, Public Health 

Service, and other organizations, when assigned to and serving with the armed forces,” are subject to the Uniform 

Code of Military Justice).
112

The U.S. armed forces may also include the volunteer auxiliary of the Air Force when the 

services of the Civil Air Patrol are used in certain missions.

98

4.5.1.1 Reserve Armed Forces. Although domestic law sometimes differentiates

between the reserve and active components of the armed forces for the purpose of entitlement to 

benefits and other matters, international law treats members of the reserve forces that are part of 

the armed forces of a State the same as other members of the armed forces.

In the United States, reserve armed forces include the reserve components of the Army, 

Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army National Guard of the 

United States and the Air National Guard of the United States.

99

4.5.2 Classes of Persons Within the Armed Forces. 

4.5.2.1 Special Operations Forces. Special operations forces may be described as

military forces specially organized, trained, and equipped to achieve military, political, 

economic, and psychological objectives by unconventional military means in hostile, denied, or 

politically sensitive areas.100 As members of the armed forces, special operations forces have the 

same rights, duties, and liabilities as other members of the armed forces.101

Nonetheless, in the past, some States have illegitimately questioned whether special 

operations forces are entitled to the privileges of combatant status. For example, during World 

War II, Hitler directed that German forces summarily execute captured Allied special operations 

forces.102 Post-World War II war crimes tribunals found that this order was not a legitimate 

reprisal, violated the prohibition against executions without a fair trial, and improperly denied 

POW status to soldiers wearing a uniform behind enemy lines.103

 98 See 10 U.S.C. § 9442(b)(1) (“The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill 

the noncombat programs and missions of the Department of the Air Force.”).

99 10 U.S.C. § 10101 (“The reserve components of the armed forces are: (1) The Army National Guard of the 

United States. (2) The Army Reserve. (3) The Navy Reserve. (4) The Marine Corps Reserve. (5) The Air National 

Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.”).

100 JOINT PUBLICATION 3-05, Special Operations, ix (Jul. 16, 2014) (“Special operations require unique modes of 

employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or 

politically and/or diplomatically sensitive environments, and are characterized by one or more of the following: 

time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater 

requirements for regional orientation and cultural expertise, and a higher degree of risk. Special operations provide 

joint force commanders (JFCs) and chiefs of mission with discrete, precise, and scalable options that can be 

synchronized with activities of other interagency partners to achieve United States Government (USG) objectives.”).

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

102 Adolf Hitler, Commando Order, reprinted in Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW 

REPORTS 18, 20-21 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946); also reprinted in United States v. von 

Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 525-27; also reprinted in

The Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 33-34 (U.S. Military Commission, 

Rome, Oct. 8-12, 1945).

103 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court, 

Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that Hitler’s commando order was clearly illegal because it 

provided “that there should be no military courts, for even a war traitor is entitled to a trial,” and because the 
113

Special operations forces personnel, like other members of the armed forces, remain 

entitled to the privileges of combatant status, unless they temporarily forfeit such privileges by 

engaging in spying or sabotage.104 In some cases, military personnel who do not wear the 

standard uniform of their armed forces may nonetheless remain entitled to the privileges of 

combatant status because the wearing of such uniforms does not constitute the element of “acting 

clandestinely or under false pretenses.”105 For example, special operations forces have 

sometimes dressed like friendly forces.106 Special operations forces personnel remain entitled to 

the privileges of combatant status even when operating detached from the main body of forces 

behind enemy lines.107

4.5.2.2 Members Trained as Medical Personnel, but Not Attached to the Medical 

Service. Members of the armed forces might have medical training but not be designated as 

military medical personnel. For example, before joining the armed forces, a person might have 

been trained as a nurse or physician, and after joining the armed forces might not be designated 

as part of the medical corps.

Because such personnel have not been designated as military medical personnel, they are 

are combatants, like other members of the armed forces.108 However, if they fall into the power 

of the enemy during international armed conflict, such personnel may be required to tend to 

fellow POWs, in light of their previous training. In particular, POWs who, though not attached 

to the medical service of their armed forces, are physicians, surgeons, dentists, nurses, or medical 

orderlies may be required by the Detaining Power to exercise their medical functions in the 

interests of POWs dependent on the same Power.109 In that case, they shall continue to be 

POWs, but shall receive the same treatment as corresponding medical personnel retained by the 

 

“commando order was to apply to troops engaged on commando operations whether in uniform or not”); The 

Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 27-33 (U.S. Military Commission, Rome, 

Oct. 8-12, 1945) (conviction of a German General for the murder of 15 U.S. Army personnel and rejection of his 

defense that the commando order was a valid and applicable superior order); Trial of Karl Adam Golkel and 

Thirteen Others, V U.N. LAW REPORTS 45-53 (British Military Court, Wuppertal, Germany, May 15-21, 1946) (trial 

of German soldiers for killing eight members of the British Special Air Service); United States v. von Leeb, et al.

(The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 527 (“This order was criminal on its 

face. It simply directed the slaughter of these ‘sabotage’ troops.”).

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

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

106 Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

107 See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court, 

Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that “[i]t is not possible to say that troops who engage in acts of 

sabotage behind the enemy lines are bandits, as Hitler declared them. They carry out a legitimate act of war, 

provided the objective relates directly to the war effort and provided they carry it out in uniform.”); LIEBER CODE

art. 81 (“Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts 

detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If 

captured, they are entitled to all the privileges of the prisoner of war.”).

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

109 GPW art. 32 (“Prisoners of war who, though not attached to the medical service of their armed forces, are 

physicians, surgeons, dentists, nurses or medical orderlies, may be required by the Detaining Power to exercise their 

medical functions in the interests of prisoners of war dependent on the same Power.”).
114

Detaining Power.110 They shall be exempted from any other work under Article 49 of the 

GPW.111

4.5.2.3 Members Who Are Ministers of Religion Without Having Officiated as 

Chaplains to Their Own Forces. Members of the armed forces might be ministers of religion, 

but might not be designated as military religious personnel.112 Because such personnel have not 

been designated as military religious personnel, they are combatants, like other members of the 

armed forces.113 However, if they fall into the power of the enemy during international armed 

conflict, such personnel may minister to fellow POWs. In particular, POWs who are ministers of 

religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever 

their denomination, to minister freely to the members of their community.114 For this purpose, 

they shall receive the same treatment as chaplains retained by the Detaining Power.115 They 

shall not be obliged to do any other work.116

4.5.2.4 Draftees. Some States require military service for categories of their 

nationals. The United States employs all-volunteer armed forces, although it has drafted its 

nationals into military service in prior conflicts.

Under international law, a draftee, i.e., a person who has been compelled to join a State’s 

armed forces, is to be treated the same as other members of the armed forces.117

4.5.2.5 Deserters. A deserter from the armed forces of a belligerent who falls into 

the power of the enemy in international armed conflict is a POW.

118 Similarly, a deserter who is 

interned by a neutral State would also be treated as a POW.119 The deserter’s relationship with 

his or her armed forces is a question of that State’s domestic law and not international law. 

States generally forbid members of their armed forces from desertion and generally regard 

members of the armed forces who desert as continuing to be members of their armed forces.

 110 GPW art. 32 (“In that case they shall continue to be prisoners of war, but shall receive the same treatment as 

corresponding medical personnel retained by the Detaining Power.”).

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

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

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

114 GPW art. 36 (“Prisoners of war who are ministers of religion, without having officiated as chaplains to their own 

forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.”).

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

Power.”).

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

117 See 1958 UK MANUAL ¶ 89(i) (noting that “[t]he members, male and female, of the land, sea and air forces are 

entitled to recognition as belligerent forces whether they have joined voluntarily or have been compelled to do so by 

their own law”).

118 See GREENSPAN, MODERN LAW OF LAND WARFARE 99 (“Deserters from the enemy do not thereby lose their right 

to be treated as prisoners of war if they fall into the hands of the opposing side.”).

119 Refer to § 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).
115

Deserters who are subsequently captured by their own armed forces are not POWs

because they are not in the power of the enemy and because the privileges of combatant status 

are generally understood not to apply, as a matter of international law, between nationals and 

their State of nationality.120

4.5.2.6 Defectors. Defectors are persons from one side’s armed forces who 

voluntarily join the armed forces of the opposing side. They are generally not regarded as POWs 

while serving in their new armed force.121

Defectors serving in the forces of the enemy who are captured by the State to which they 

originally owed an allegiance generally would not be entitled to POW status because the 

privileges of combatant status are generally understood not to apply, as a matter of international 

law, between nationals and their State of nationality.122

States may not compel POWs, retained personnel, or protected persons in their power to 

defect and serve in their armed forces.123

4.5.3 Regular Armed Forces Who Profess Allegiance to a Government or an Authority 

Not Recognized by the Detaining Power. During international armed conflict, members of 

regular armed forces who profess allegiance to a Government or an authority not recognized by 

the Detaining Power are treated as members of the armed forces of a State.124 Under Article 

4A(3) of the GPW, they receive POW status, and they should also receive the rights, duties, and 

liabilities of combatants.

125

Article 4A(3) of the GPW was developed to address situations like those that had 

occurred during World War II, when members of a military force continued fighting after their 

State had been occupied.

126 For example, military forces might continue to fight for a 

 120 Refer to § 4.4.4 (Nationality and Combatant Status).

121 Refer to § 9.3.4.1 (Having Fallen).

122 Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces).

123 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 10.7.3 (Compulsory Work for Protected 

Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying 

Power’s Armed Forces).

124 GPW art. 4A(3) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers of 

regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining 

Power” who have fallen into the power of the enemy).

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

126 See INTERNATIONAL COMMITTEE OF THE RED CROSS, Report on the Work of the Conference of Government 

Exports for the Study of the Convention for the Protection of War Victims, 106 (Geneva, Apr. 14-26, 1947) (“In its 

report, the ICRC stressed that certain States [during World War II] had denied the status of belligerents to combatant 

units subject to a Government or authority which these States did not recognise; this despite the fact that these units 

(e.g. the French forces constituted under General de Gaulle) fulfilled all the conditions required for the granting of 

PW status. The Commission approved the ICRC’s proposal that these armed forces should enjoy PW status, 

irrespective of the Government or authority under whose orders they might claim to be.”).
116

government-in-exile or for a government that had ceased to exist.127 Such a government would 

provide the right authority for its regular armed forces to participate in the ongoing war and to 

receive POW status upon capture by the enemy.

128 Members of those forces were sometimes 

denied POW status by an enemy State, even though other States recognized the group to which 

they belonged as a co-belligerent force.

129

4.5.4 Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State. 

Under Article 4B(1) of the GPW, persons belonging, or having belonged, to the armed forces of 

an occupied State should be treated as POWs if, while hostilities are continuing outside occupied 

territory, the Occupying Power considers it necessary, by reason of their allegiance to the armed 

forces, to intern them.

130

Article 4B(1) of the GPW seeks to address the proper status of an army demobilized by 

the Occupying Power while a portion of those same armed forces continue the struggle. When 

the forces are demobilized, they are treated as civilians, but when recalled for internment based 

on their prior service, they are treated as POWs.

131 In particular, States developed this provision 

to address Germany’s practice during World War II of arresting demobilized military personnel 

from occupied States.

132 These personnel were often interned and sought to escape to join the 

ongoing fighting. This provision was promulgated to ensure that individuals in similar 

circumstances would receive POW treatment if they were interned. For example, the rules for 

the parole of POWs would apply to them.

133 Similarly, the rules relating to POW escape would 

 127 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 415 (“Mr. Lamarle (France) realized 

that cases might arise where combatants claiming allegiance to an authority which was not recognized by the 

Detaining Power might be deprived of the benefit of the Convention; but he thought the word ‘authority’ afforded 

sufficient safeguards to such combatants. After an exchange of views on the subject, the Committee agreed that the 

word ‘authority’ afforded sufficient safeguards to combatants claiming allegiance to Governments which had ceased 

to exist.”).

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

129 Refer to § 3.3.3.3 (Recognition of Friendly Armed Groups as Lawful Belligerents).

130 GPW art. 4B(1) (“(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the 

occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally 

liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have 

made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or 

where they fail to comply with a summons made to them with a view to internment.”).

131 GPW COMMENTARY 69 (“In fact, as one delegate to the Conference pointed out, the question relates to the proper 

status of an army demobilized by the Occupying Power, while a portion of those same armed forces continue the 

struggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; but 

from that moment, it is equally logical to treat them as prisoners of war.”).

132 See GPW COMMENTARY 68 (“During the Second World War, the Occupying Power, for security reasons, 

frequently arrested demobilized military personnel in occupied territory, especially officers. These men were 

granted prisoner-of-war status but usually only after repeated representations by the International Committee of the 

Red Cross and the Governments concerned. In the report which the International Committee prepared for the 

Government Experts, it therefore proposed that the entitlement of such persons to prisoner-of-war status should be 

explicitly mentioned and the Conference supported this suggestion.”). For further historical background see LEVIE,

POWS 66-67, II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 431-32, and the note 

appended to In re Siebers, Special Court of Cassation, Feb. 20, 1950, The Hague, in 1950 INTERNATIONAL LAW 

REPORTS, 399-400.

133 Refer to § 9.11.2 (Parole of POWs).
117

also apply to them.

134 So, a demobilized person who disobeyed an internment order and 

attempted to escape to rejoin his or her armed force would, like a POW, be subject, at most, to 

disciplinary punishment in respect of the act of escape.

135

Persons belonging, or having belonged, to the armed forces of an occupied State would 

only be entitled to receive POW treatment while an international armed conflict continues.

136 

For example, this provision would not apply to a situation like the occupation of Japan after 

World War II because all hostilities had ended.

137

4.6 OTHER MILITIA AND VOLUNTEER CORPS

Under certain conditions, members of militia and volunteer corps that are not part of the 

armed forces of a State qualify as combatants and receive the rights, duties, and liabilities of 

combatant status.138 More specifically, Article 4(A)(2) of the GPW defines prisoners of war to 

include:

Members of other militias and members of other volunteer corps, including those 

of organized resistance movements, belonging to a Party to the conflict and 

operating in or outside their own territory, even if this territory is occupied, 

provided that such militias or volunteer corps, including such organized resistance 

movements, fulfil the following conditions: 

(a) that of being commanded by a person responsible for his subordinates; 

(b) that of having a fixed distinctive sign recognizable at a distance; 

(c) that of carrying arms openly; 

(d) that of conducting their operations in accordance with the laws and customs of 

war.139

 134 Refer to § 9.25 (POW Escapes).

135 Refer to § 9.25.2.2 (Only Disciplinary Punishments in Respect of an Act of Escape).

136 See LEVIE, POWS 67-68 (“It is important to bear in mind that the foregoing provisions explicitly contemplate that 

the government of the unoccupied part of the territory of the State the members of whose armed forces are in 

question, or that State’s allies if it has been completely occupied, are continuing the hostilities. The mere existence 

of a government-in-exile after the complete cessation of hostilities would not suffice to make the provision 

applicable. In other words, this provision was not intended to apply to the situation which arises when the 

capitulation of a State is followed by the complete termination of armed hostilities.”).

137 See LEVIE, POWS 68 and footnote 261 (“[T]his provision was not intended to apply to the situation which arises 

when the capitulation of a State is followed by the complete termination of armed hostilities” and “would, therefore, 

not apply in a situation such as that which existed upon the capitulation of Japan in 1945.”).

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

139 GPW art. 4(A)(2). See also HAGUE IV REG. art. 1 (“The laws, rights, and duties of war apply not only to armies, 

but also to militia and volunteer corps fulfilling the following conditions: -- 1. To be commanded by a person 

responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms 

openly; and 4. To conduct their operations in accordance with the laws and customs of war.”); 1899 HAGUE II REG.
118

Under these conditions, which are discussed below, members of these armed groups may 

operate as combatants in or outside their own territory, even if this territory is occupied. By 

contrast, a levée en masse may only be formed on the approach of the enemy to non-occupied 

territory.

140 

4.6.1 GPW 4A(2) Conditions in General. The conditions set forth in Article 4A(2) of the 

GPW were derived from conditions found in the Regulations annexed to the 1899 Hague II and 

the 1907 Hague IV.

141 These conditions reflect the attributes common to regular armed forces of 

a State.

142 By seeking to ensure that participants in hostilities are sufficiently disciplined, lawabiding, and distinguishable from the civilian population, these conditions help protect the 

civilian population from the hardships of war. In addition, these conditions contribute to the 

military effectiveness of the force that satisfies the conditions.

143

These conditions may be understood to reflect a burdens-benefits principle, i.e., the 

receipt of certain benefits in the law of war (e.g., privileges of combatant status) requires the 

assumption of certain obligations.

144

4.6.1.1 GPW 4A(2) Conditions Required on a Group Basis. The armed group, as 

a whole, must fulfill these conditions for its members to be entitled to the privileges of 

combatant status. For example, if a member of an armed group met these requirements, but the 

armed group did not, that member would not be entitled to the privileges of combatant status

because the armed group failed to satisfy the conditions.

145 Similarly, isolated departures from a 

 

art. 1 (“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling 

the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed 

distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in 

accordance with the laws and customs of war.”).

140 Refer to § 4.7.1.3 (Approach of the Enemy to Non-Occupied Territory).

141 See GPW COMMENTARY 49 (“[T]here was unanimous agreement [at the 1949 Diplomatic Conference] that the 

categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague 

Regulations.”).

142 See GPW COMMENTARY 58 (explaining that an organization satisfying the conditions of GPW art. 4A(2) “must 

have the principal characteristics generally found in armed forces throughout the world, particularly in regard to 

discipline, hierarchy, responsibility and honour.”).

143 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 549 

(“General den Beer Poortugael, while fully endorsing the considerations set forth by the PRESIDENT and his 

Excellency Mr. BEERNAERT, wishes to add a few words. ... But from a military standpoint also it must be 

recognized that it is to the benefit of the populations to impose on them the conditions contained in Articles 9 and 10 

[predecessors to GPW art. 4A(2) and 4A(6) and], which they must satisfy if they wish to take up arms. For it is an 

undeniable fact that to lead undisciplined and unorganized troops into the fire is to lead them to butchery.”).

144 Refer to § 3.6.3.2 (Benefits-Burdens Principle in Law of War Rules).

145 See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK 

OF INTERNATIONAL LAW 173, 197 (1971) (“the fate of the individual irregular is essentially linked with that of the 

group in which he operates. If the group’s members, as a majority, always meet the legal conditions, the individual 

will answer only for his own misdoings, and then as a prisoner of war who had the right to participate in the combat. 

If, however, the individual were punctilious in a group in which the majority did not observe the conditions on any 

one occasion, he would not acquire combatant status or prisoner-of-war status upon capture, and will answer in law 

as an individual who participated in combat with no legal right to do so, i.e. answerable in municipal law or 

occupation law, or the law of war.”).
119

condition by a member of the armed group (e.g., a failure to comply with the conditions by a 

member of the armed group that was not directed by the armed group’s leader) would not 

prevent the armed group from satisfying these conditions.

4.6.1.2 AP I and the GPW 4A(2) Conditions. AP I changed, for its Parties, the 

conditions under which armed groups that are not part of a State’s armed forces may qualify for 

combatant status.146 The United States has objected to the way these changes relaxed the 

requirements for obtaining the privileges of combatant status, and did not ratify AP I, in large 

part, because of them.147 A chief concern has been the extent to which these changes would 

undermine the protection of the civilian population.148 The United States has expressed the view 

that it would not be appropriate to treat this provision of AP I as customary international law.149

4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State. 

The text of the GPW does not expressly apply the conditions in Article 4A(2) of the GPW to the 

armed forces of a State.150 Thus, under the GPW, members of the armed forces of a State 

 146 See AP I, arts. 1(4), 43, 44.

147 See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV 

(“Another provision [of AP I] would grant combatant status to irregular forces even if they do not satisfy the 

traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws 

of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”).

148 See, e.g., John B. Bellinger, III, Lawyers and Wars: A Symposium in Honor of Edward R. Cummings, Sept. 30, 

2005, 2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 953, 955 (“More problematic from the 

lawyer’s perspective—or at least this lawyer’s perspective—is how law deals with the kind of situation where a 

would-be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working against 

civilian protection is fueled in part by Article 44 of Additional Protocol I, which suggests that combatants do not 

need to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there is 

no doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarian 

law. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines this 

fundamental protection. The principle of distinction, among the foundational principles of humanitarian law, exists 

for the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article 

44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one has to lament 

that the process of negotiating international humanitarian law instruments has not always inured to the civilian 

population’s benefit.”).

149 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (“Article 44 grants combatant 

status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to 

distinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was 

not acceptable as a new norm of international law. It clearly does not reflect customary law. ... While the U.S. is of 

the view that certain provisions in Protocol I reflect customary international law (see, e.g., Treaty Doc. 100-2, supra, 

at X), the provisions on wars of national liberation and combatant and prisoner-of-war status are definitely not in 

this category. ... Accordingly, it is the view of the United States that it would be inappropriate to treat these 

provisions as part of customary international law under any circumstances.”).

150 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 465-66 (“General SLAVIN (Union of 

Soviet Socialist Republics) said that according to the first paragraph, sub-paragraph I, of the working text it would 

appear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in (a), 

(b), (c) and (d) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I of 

the Regulations concerning the Laws and Customs of War, 18 October 1907). General DEVIJVER (Belgium) pointed 

out that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the first 

paragraph, sub-paragraph (I), of the working text carefully specified that only members of militia or volunteer corps 

should fulfil all four conditions.”). Cf. In re Lewinski (called von Manstein) Case, reprinted in ANNUAL DIGEST 
120

receive combatant status (including its privileges and liabilities) by virtue of their membership in 

the armed forces of a State.

151 Nonetheless, the GPW 4A(2) conditions were intended to reflect 

attributes of States’ armed forces.152 If an armed force of a State systematically failed to 

distinguish itself from the civilian population and to conduct its operations in accordance with 

the law of war, its members should not expect to receive the privileges afforded lawful 

combatants.

153 Similarly, members of the armed forces engaged in spying or sabotage forfeit 

their entitlement to the privileges of combatant status if captured while engaged in those 

activities.

154

4.6.2 Belonging to a Party to the Conflict. The armed group must belong to a party to the 

conflict.

155 The requirement of “belonging” to a party establishes that the armed group fulfills a 

jus ad bellum requirement of right authority, i.e., it is acting on the authority of a State.

156 This 

requirement recognizes that members of a non-State armed group are not entitled to the 

privileges of combatant status even if that armed group satisfies the other conditions.157

The State’s authority may be granted by its representatives orally; it need not be granted 

in writing, such as through a commission or warrant. In all cases, however, opposing parties to 

 

AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 509, 515-16 (H. Lauterpacht, ed., 1949) (“Regular soldiers 

are so entitled without any of the four requirements set out in Article 1 [of the Hague IV Reg.]: they are requisite in 

order to give the Militia and Volunteer Corps the same privileges as the Army.”).

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

152 Refer to footnote 142 in § 4.6.1 (GPW 4A(2) Conditions in General).

153 See Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third Geneva 

Convention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 4 (“We conclude, however, 

that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who 

would be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of an 

armed force, unless forces also are: (a) ‘commanded by a person responsible for his subordinates’; (b) ‘hav[e] a 

fixed distinctive sign recognizable at a distance’; (c) ‘carry[] arms openly’; and (d) ‘conduct[] their operations in 

accordance with the laws and customs of war.’ Thus, if the President has the factual basis to determine that Taliban 

prisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the grounds 

to also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) or 

Article 4(A)(3).”) (brackets in original); BOTHE, PARTSCH, & SOLF, NEW RULES 234-35 (AP I art. 43, ¶2.1.2) (“It is 

generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 

Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to be 

unnecessary and redundant to spell them out in the Conventions.”).

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

155 GPW art. 4A(2). Cf. LIEBER CODE art. 81 (“Partisans are soldiers armed and wearing the uniform of their army, 

but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory 

occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.”).

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

157 See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 

1969), LEVIE, DOCUMENTS ON POWS 776 (explaining that “the most basic condition of the right of combatants to be 

considered upon capture as prisoners of war” is belonging to a belligerent State and that if persons “do not belong to 

the Government or State for which they fight, ... they do not possess the right to enjoy the status of prisoners of war 

upon capture.”). Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 237 (AP I art. 43, ¶2.3.1) (“gangs of terrorists acting on 

their own behalf and not linked to an entity subject to international law are excluded” from the definition of “armed 

forces of a Party to the Conflict” in AP I similar to how they would be excluded under Article 4A(2) of the GPW).
121

the conflict must be able to discern that the armed group enjoys such authority. A State’s formal 

acknowledgement that an armed group “belongs” to it is sufficient. On the other hand, the bare 

claim by the armed group that it acts on behalf of a State would be insufficient. In some cases, 

State support and direction to the armed group may establish that it belongs to the State.

158

4.6.3 Being Commanded by a Person Responsible for His or Her Subordinates. The 

armed group must be commanded by a person responsible for his or her subordinates; the armed 

group must have a commander with effective authority over the armed group.

159 This 

requirement helps ensure that the armed group has sufficient discipline and organization to 

conduct its operations in accordance with the law of war.

160

The commander may derive his or her authority over the armed group by a regular or 

temporary commission from a State. However, a commander may derive his or her command 

from another position or authority. For example, the armed group may be formed informally and 

may have elected the commander as its leader. In practice, a State may provide members of the 

armed group with certificates or distinctive badges to show that they are officers, or military 

personnel responsible to higher authority, and not private persons acting on individual 

initiative.

161

The authority of the commander over his or her subordinates gives rise to a 

corresponding duty to ensure that the armed group’s members conduct their operations in 

accordance with the law of war.162

4.6.4 Having a Fixed Distinctive Sign Recognizable at a Distance. Members of the 

 158 See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 

1969), LEVIE, DOCUMENTS ON POWS 776-77 (“It is natural that, in international armed conflicts, the Government 

which previously possessed an occupied area should encourage and take under its wing the irregular forces which 

continue fighting within the borders of the country, give them protection and material assistance, and that therefore a 

‘command relationship’ should exist between such Government and the fighting forces, with the result that a 

continuing responsibility exists of the Government and the commanders of its army for those who fight in its name 

and on its behalf.”).

159 See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (“The commander must be a person responsible for his 

subordinates, that is, his authority over those in his command must be effective.”).

160 See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK 

OF INTERNATIONAL LAW 173, 201 (1971) (explaining that this condition “does probably mean that the commander 

must have sufficient authority to ensure that the conditions applicable to the members of the group, necessary for 

lawful combatancy, are observed.”); 1958 UK MANUAL ¶91 note 1 (explaining that “Field Marshall Rundstedt, C.-

in-C. of the German armed forces in the West, disclaimed all responsibilities for the atrocities by Waffen S.S. units 

on the ground that neither their commanders nor members were subject to military law” and that “he could take no 

disciplinary action against them,” and thus German “Waffen S.S.” paramilitary units used during World War II 

failed to meet this condition and were not lawful combatants).

161 1958 UK MANUAL ¶91 (“The first condition, ‘to be commanded by a person responsible for his subordinates,’ is 

fulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or is a person of 

position and authority, or if the members are provided with certificates or badges granted by the government of the 

State to show that they are officers, or soldiers, so that there may be no doubt that they are not partisans acting on 

their own responsibility. State recognition, however, is not essential, and an organisation may be formed 

spontaneously and elect its own officers.”).

162 Refer to § 18.23.3 (Command Responsibility).
122

armed group should display a fixed distinctive sign or other device recognizable at a distance. 

The essence of this requirement is that members of the armed group are distinguishable from the 

civilian population.

163 By helping to ensure that members of the armed group can be visually 

distinguished from civilians, this requirement helps protect the civilian population from being 

erroneously made the object of attack.164

4.6.4.1 Distinctive Sign. The requirement does not specify a particular sign or 

emblem that persons must wear.

165 Wearing a military uniform satisfies this condition. 

However, a full uniform is not required.166 The sign suffices if it enables the person to be 

distinguished from the civilian population. For example, a helmet or headdress that makes the 

silhouette of the individual readily distinguishable from that of a civilian can meet this 

requirement. Similarly, a partial uniform (such as a uniform jacket or trousers), load bearing 

vest, armband, or other device could suffice, so long as it served to distinguish the members from 

the civilian population. Formally notifying enemy forces of the distinctive sign is not required, 

and the proposal to add such a requirement was not accepted by States.167 Such notification, 

however, may avoid misunderstanding and facilitate claims of POW status for captured members

of the armed group.

 163 See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (“Soldiers must be dressed in such a fashion that they are 

clearly distinguishable from the general population as members of the armed forces.”).

164 See Abraham Sofaer, Legal Adviser, Department of State, The Rationale for the United States Decision, 82 AJIL 

784, 786 (1988) (“Inevitably, regular forces would treat civilians more harshly and with less restraint if they 

believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their 

POW status if captured.”). For example, LEVIE, POWS 50 footnote 187 (“In Vietnam individuals who were 

apparently civilian noncombatants (women, children, working farmers, etc.) would approach American servicemen 

in seeming innocence and then suddenly toss a hand grenade at them. After a very few such incidents the soldiers 

understandably came to distrust all civilians while they were in the field and frequently took definitive action upon 

suspicion and without waiting to ascertain the facts. Thus, the original illegal actions taken by the guerrillas 

subsequently endangered the members of the civilian population who, as noncombatants, were entitled to be 

protected in their status.”) (internal citations omitted).

165 See GPW COMMENTARY 52 (“The drafters of the 1949 Convention, like those of the Hague Conventions, 

considered it unnecessary to specify the sign which members of the armed forces should have for the purposes of 

recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately 

recognized as such and to see to it that they are easily distinguishable from ... civilians.”).

166 See, e.g., 1958 UK MANUAL ¶92 (“The second condition, relating to a fixed distinctive sign recognisable at a 

distance, would be satisfied by the wearing of a military uniform, but something less than a complete uniform will 

suffice.”); 1914 RULES OF LAND WARFARE ¶33 (“The distinctive sign. – This requirement will be satisfied by the 

wearing of a uniform or even less than a complete uniform.”); SPAIGHT, WAR RIGHTS ON LAND 57 (“The ‘distinctive 

emblem’ does not mean a uniform.”). Cf. ICRC AP COMMENTARY 468 (¶1577) (“What constitutes a uniform, and 

how can emblems or nationality be distinguished from each other? The Conference in no way intended to define 

what constitutes a uniform ... . ‘[A]ny customary uniform which clearly distinguished the member wearing it from 

a non-member should suffice.’ Thus a cap or an armlet, etc. worn in a standard way is actually equivalent to a 

uniform.”).

167 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF 

1907 6 (1921) (“The PRESIDENT first takes up the German amendment relating to Article 1, tending to require 

previous notice to the hostile party of fixed distinctive emblems recognizable at a distance. He recalls that this 

amendment was rejected by 23 votes to 11, and asks whether it is again advanced by the German delegation. On the 

negative answer of Major General VON GUNDELL, he considers it useless to put the question to discussion and 

passes to Article 2.”).
123

4.6.4.2 Fixed. The text of the GPW indicates that the sign should be “fixed.” 

This requirement has been interpreted to mean that the sign must be such that it cannot be easily 

removed and disposed of at the first sign of danger.168 In practice, however, it would be 

important to assess whether members of the armed group are functionally distinguishable from 

the civilian population, even if the distinctive sign that they wear is not permanent and could be 

removed.

169

4.6.4.3 Visible at a Distance. “Distance” has not been defined, but may be 

interpreted as requiring that the sign be easily distinguishable by the naked eye of ordinary 

people at a distance at which the form of the individual can be determined.170

4.6.5 Carrying Arms Openly. Members of the armed group must carry their arms 

openly.171 This requirement is not satisfied if the armed group makes a practice of carrying only 

concealed weapons or of hiding weapons on the approach of enemy forces to avoid identification 

 168 See LEVIE, POWS 48 (a resistance fighter “must wear some item which will identify him as a combatant, thereby 

distinguishing him from the general population, and that item must be such that he cannot remove and dispose of it 

at the first sign of danger. A handkerchief, or rag, or armband slipped onto or loosely pinned to the sleeve does not 

meet this definition. An armband sewed to the sleeve, a logotype of sufficient size displayed on the clothing, a 

unique type of jacket-these will constitute a fixed and distinctive identifying insignia, effectively separating the 

combatant of the moment from the rest of the population.”); GREENSPAN, MODERN LAW OF LAND WARFARE 59 

(“Where a complete uniform is not worn, and this is sometimes not possible because of the poverty of the country, 

sudden emergency or other reasons, the fixed distinctive sign should be something which cannot be instantly taken 

off or assumed at will, thus enabling a combatant to appear a peaceful citizen one moment and a soldier the next. 

The sign should be part of the clothing or sewn to it.”); 1958 UK MANUAL ¶92 (“Something in the nature of a badge 

sewn on the clothing should therefore be worn in addition [to a distinctive helmet]” in order to meet the condition 

that the sign must be fixed.).

169 See FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 16-

17 (1862) (“The Southern prisoners made at Fort Donelson, whom I have seen at the West, had no uniform. They 

were indeed dressed very much alike, but it was the uniform dress of the countryman in that region. Yet they were 

treated by us as prisoner of war, and well treated too. Nor would it be difficult to adopt something of a badge, easily 

put on and off, and to call it a uniform. It makes a great difference, however, whether the absence of the uniform is 

used for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, for 

destruction or life or property, or for pillage, and whether the parties have no organization at all, and are so small 

that they cannot act otherwise than by stealth.”).

170 See 1958 UK MANUAL ¶92 (“The distance at which the sign should be visible is necessarily vague, but it is 

reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline 

should at once be distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinary 

individual at a distance at which the form of the individual can be determined.”); 1914 RULES OF LAND WARFARE

¶33 (“The distance that the sign must be visible is left vague and undetermined and the practice is not uniform. This 

requirement will be satisfied certainly if the sign is ‘easily distinguishable by the naked eye of ordinary people’ at a 

distance at which the form of the individual can be determined.”); CHARLES HENRY HYDE, II INTERNATIONAL LAW: 

CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES 291 footnote 3 (1922) (quoting the same provision 

in the 1917 U.S. Rules of Land Warfare); SPAIGHT, WAR RIGHTS ON LAND 57 (explaining that “[i]f the sign is 

recognizable at a distance at which the naked eye can distinguish the form and color of a person’s dress, all 

reasonable requirements appear to be met” and noting the Japanese view during the Russo-Japanese War that a 

Russian free corps that “would wear no uniform but only a distinctive sign on the cap and sleeve” would only be 

considered belligerents “‘if they can be distinguishable by the naked eye from the ordinary people or fulfill the 

conditions for militias or volunteers by the Hague Réglement’.”).

171 See GPW art. 4A(2)(c); HAGUE IV REG. art. 1(3).
124

as fighters.

172

4.6.6 Conducting Their Operations in Accordance With the Laws and Customs of War. 

The armed group, as a whole, must conduct its operations in accordance with the law of war. 

Evidence that an armed group enforced the law of war (such as by promulgating instructions

regarding law of war requirements and punishing violations by its members) would help 

establish that an armed group meets this condition.

4.7 LEVÉE EN MASSE

A levée en masse is a spontaneous uprising of the inhabitants of non-occupied territory 

who, on the approach of the enemy in an international armed conflict, take up arms to resist the 

invading forces, without having time to form themselves into regular armed units.173 

Participants in a levée en masse are entitled to the privileges of combatant status, provided that 

they carry their arms openly and respect the laws and customs of war.174 

4.7.1 Conditions for a Levée en Masse. The following discussion elaborates upon some 

of the conditions for a levée en masse. 

4.7.1.1 Spontaneous. A levée en masse is a spontaneous uprising in which 

members have not had time to form into regular armed units.175 Thus, unlike other categories of 

lawful combatants, persons who join a levée en masse need not wear a distinctive sign nor be 

organized under a responsible command. The spontaneity of their response generally precludes 

their being able to take such measures.

4.7.1.2 Inhabitants. A levée en masse is understood to reflect the right of 

inhabitants to resist approaching enemy forces. Non-inhabitants who travel to a territory to resist 

invading forces would not be entitled to participate in a levée en masse.

176

 172 1958 UK MANUAL ¶94 (“The third condition is that irregular combatants shall carry arms openly. They may 

therefore be refused the rights of the armed forces if it is found that their sole arm is a pistol, hand-grenade, or 

dagger concealed about the person, or a sword-stick or similar weapon, or if it is found that they have hidden their 

arms on the approach of the enemy.”).

173 GPW art. 4A(6) (defining “prisoners of war, in the sense of the present Convention,” to include “[i]nhabitants of 

a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading 

forces, without having had time to form themselves into regular armed units, provided they carry arms openly and 

respect the laws and customs of war” who have fallen into the power of the enemy); HAGUE IV REG. art. 2 (“The 

inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up 

arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall 

be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”); LIEBER 

CODE art. 51 (“If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the 

whole country, at the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader, 

they are now treated as public enemies, and, if captured, are prisoners of war.”).

174 For more background, see LEVIE, POWS 64-66.

175 See GREENSPAN, MODERN LAW OF LAND WARFARE 63 (“the essence of a levée en masse is that it is 

unorganized.”).

176 Compare § 10.3.2.1 (“Find Themselves”).
125

4.7.1.3 Approach of the Enemy to Non-Occupied Territory. A levée en masse

may only be formed on the approach of the enemy to non-occupied territory. Once the 

belligerent has established an occupation, the local population should comply with the orders of 

the occupation force, and a levée en masse may not be formed.

177 Similarly, even before the 

establishment of an occupation, inhabitants of areas that have already been invaded may not 

form a levée en masse.

178

By contrast, members of an organized resistance movement under Article 4A(2) of the 

GPW may operate as combatants in or outside their own territory, even if this territory is 

occupied.179

4.7.2 Levée en Masse – Discerning Participants. Should some inhabitants form a levée en 

masse to defend an area, it may be justifiable for the invading force to detain all persons of 

military age in that area and treat them as POWs.

180 Even if an inhabitant who joined or 

participated in the levée en masse lays down arms, if he or she is later captured, he or she may be 

detained as a POW.

181 If a person joins a levée en masse, he or she may be held as a POW even 

if he or she actually took no part in fighting.

182

If detained, a person believed to have participated in a levée en masse should be treated 

as a POW until a determination is otherwise made by a competent tribunal.183 If a competent 

tribunal determines that a person did not join the levée en masse but instead committed private 

acts of hostility against enemy military forces,184 the person may be treated as an unprivileged 

belligerent.

185

 177 Refer to § 11.7.1 (Inhabitants’ Obedience to the Occupying Power).

178 See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 258 (§81) (“Article 2 [of the HAGUE IV REG.] 

distinctly speaks of the approach of the enemy, and thereby sanctions only such a levy en masse as takes place in 

territory not yet invaded by the enemy. Once the territory is invaded, although the invasion has not yet ripened into 

occupation, a levy en masse is no longer legitimate. But, of course, the term territory, as used by Article 2, is not 

intended to mean the whole extent of the State of a belligerent, but only such parts of it as are not yet invaded. For 

this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on the 

approach of the enemy, legitimately rise en masse.”).

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

180 1956 FM 27-10 (Change No. 1 1976) ¶65 (“Should some inhabitants of a locality thus take part in its defense, it 

might be justifiable to treat all the males of military age as prisoners of war.”); 1958 UK MANUAL ¶100 (“Where the 

majority of inhabitants of a locality have taken part in its defence in circumstances amounting to a levée en masse, it 

is justifiable and probably advisable to treat all the male inhabitants of military age as prisoners of war, leaving it to 

the individual concerned to claim that they took no part in the levée en masse or defence of the locality.”).

181 1956 FM 27-10 (Change No. 1 1976) ¶65 (“Even if inhabitants who formed the levee en masse lay down their 

arms and return to their normal activities, they may be made prisoners of war.”).

182 1958 UK MANUAL ¶100 (“If it is shown that they joined the levée en masse, but took no part in the defence, they 

may be held as prisoners of war.”).

183 Refer to § 4.27.3 (Competent Tribunal to Assess Entitlement to POW Status or Treatment).

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

185 Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).
126

4.8 RIGHTS, DUTIES, AND LIABILITIES OF CIVILIANS

Like combatants, members of the civilian population also have certain rights, duties, and 

liabilities under the law of war. Civilians may not be made the object of attack. If detained, 

civilians are entitled to humane treatment and a variety of additional protections. Civilians lack 

the combatant’s privilege, and may be punished, after a fair trial, by an enemy State for engaging 

in hostilities against it.

4.8.1 Civilians – Notes on Terminology. Like other terms, “civilian” is used in a variety 

of different ways in the law of war.186

4.8.1.1 “Civilian” Versus “Military”. Sometimes, “civilian” is used to describe 

persons who are not military personnel. For example, persons authorized to accompany the 

armed forces are often called “civilians” in this sense, even though they are POWs if they fall 

into the power of the enemy during international armed conflict.

187

4.8.1.2 “Civilian” Versus “Combatant”. “Civilian” is also often used to refer to 

persons who are not “combatants.” Since “combatant” is often used in different ways, “civilian,”

correspondingly, is also used in different ways. For example, sometimes “civilians” is used to 

refer to persons who lack the right to participate in hostilities. Other times “civilian” is used to 

refer to persons who neither have the right to participate in hostilities nor have in fact 

participated in hostilities.

188 For example, “civilian” casualty reports generally exclude 

insurgents or terrorists, even though some might call such persons “civilians” because they are 

not entitled to participate in hostilities.

4.8.1.3 “Civilian” in the GC. The GC does not define “civilian,” although it uses 

the word.

189 The GC uses the term “protected person” to refer to persons protected by the 

Convention.190 The GC excludes from the definition of “protected person” those persons who 

are protected under the other 1949 Geneva Conventions, e.g., POWs and retained personnel.191 

In some cases, “protected persons” can include a person “detained as a spy or saboteur, or as a 

person under definite suspicion of activity hostile to the security of the Occupying Power,”

although such persons are not entitled to all the protections applicable to protected persons.

192

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

187 Refer to § 4.15.3 (Persons Authorized to Accompany the Armed Forces – Detention).

188 See, e.g., GC COMMENTARY 134 (“These rules [for the protection of the wounded and sick] are even more 

essential when the wounded or sick person is a civilian, i.e. a person who, by definition, takes no part in the 

hostilities.”).

189 See, e.g., GC art. 10 (“The provisions of the present Convention constitute no obstacle to the humanitarian 

activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, 

subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for 

their relief.”).

190 Refer to § 10.3 (Protected Person Status).

191 Refer to § 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).

192 GC art. 5. Refer to § 10.3.2.4 (Unprivileged Belligerents Not Per Se Excluded From Protected Person Status).
127

4.8.1.4 “Civilian” in AP I and AP II. AP I defines “civilian” in opposition to 

“combatant”; under AP I, anyone who is not a “combatant” is, by definition, a “civilian.”193 The 

United States has objected to AP I’s definition of combatant.194 AP II uses the term “civilian”

without providing a definition.

195

4.8.1.5 General Usage of “Civilian” in This Manual. This manual generally uses

“civilian” to mean a member of the civilian population, i.e., a person who is neither part of nor 

associated with an armed force or group, nor otherwise engaging in hostilities.

4.8.2 Civilians – Conduct of Hostilities. Civilians may not be made the object of attack, 

unless they take direct part in hostilities.

196 The wounded and sick, as well as the infirm, and 

expectant mothers, shall be the object of particular protection and respect.197 Civilians may be 

killed incidentally in military operations; however, the expected incidental harm to civilians may 

not be excessive in relation to the anticipated military advantage from an attack,

198 and feasible 

precautions must be taken to reduce the risk of harm to civilians during military operations.

199

Civilians who engage in hostilities thereby forfeit the corresponding protections of 

civilian status and may be liable to treatment in one or more respects as unprivileged 

belligerents.200 

4.8.3 Civilians – Detention. In general, civilians may be subject to non-violent measures 

that are justified by military necessity, such as searches, or temporary detention.

201 Belligerents 

or Occupying Powers may take necessary security measures in relation to civilians, including 

internment or assigned residence for imperative reasons of security.

202

Enemy civilians who are interned during international armed conflict or occupation 

generally are classified as “protected persons” under the GC and receive a variety of 

protections.

203 Chapter X addresses in detail the required treatment of enemy civilian internees 

 193 See AP I art. 50(1) (“A civilian is any person who does not belong to one of the categories of persons referred to 

in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt 

whether a person is a civilian, that person shall be considered to be a civilian.”).

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

195 See, e.g., AP II art. 13 (“1. The civilian population and individual civilians shall enjoy general protection against 

the dangers arising from military operations.”).

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

197 GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular 

protection and respect.”).

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

199 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects); § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected 

Persons and Objects by the Party Subject to Attack).

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

201 Refer to § 5.2.2.1 (Non-Violent Measures That Are Militarily Necessary).

202 Refer to § 10.6 (Measures of Control and Security).

203 Refer to § 10.3 (Protected Person Status).
128

during international armed conflict and occupation. In all circumstances, detained civilians must 

be treated humanely.204 Special categories of civilians, such as children, may require additional 

consideration during detention.

205

4.8.4 Civilians – Legal Liability Under an Enemy State’s Domestic Law. Unlike 

combatants, civilians lack the combatant’s privilege excepting them from the domestic law of the 

enemy State. Civilians who engage in hostilities may, after a fair trial, be punished by an 

opposing State.

206

A State that is an Occupying Power has additional authorities over enemy civilians that 

extend beyond the ability to punish their unauthorized participation in hostilities.207

Note, however, the special cases of persons authorized to accompany the armed forces,208

members of the merchant marine and civil aircraft,209 and participants in a levée en masse.

210

4.9 MILITARY MEDICAL AND RELIGIOUS PERSONNEL

“Medical personnel exclusively engaged in the search for, or the collection, transport or 

treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the 

administration of medical units and establishments, as well as chaplains attached to the armed 

forces” are treated as a special category under the law of war.211 This manual generally refers to 

them as military medical and religious personnel.

Under certain circumstances, (1) the authorized staff of voluntary aid societies and (2) the 

staff of a recognized aid society of a neutral country are treated like military medical and 

religious personnel.

212

4.9.1 Types of Military Medical and Religious Personnel. Military medical and religious 

personnel include: (1) medical personnel exclusively engaged in the search for, or the collection, 

transport, or treatment of the wounded or sick, or in the prevention of disease; (2) staff 

exclusively engaged in the administration of medical units and establishments; and (3) chaplains 

 204 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

205 Refer to § 4.20 (Children).

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

207 Refer to § 11.7 (Authority of the Occupying Power Over Inhabitants).

208 Refer to § 4.15.4 (Persons Authorized to Accompany the Armed Forces – Liability Under Domestic Law for 

Participation in Hostilities).

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

210 Refer to § 4.7 (Levée en Masse).

211 GWS art. 24.

212 Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies); § 4.12 (Staff of a Recognized Aid Society of a 

Neutral Country).
129

attached to the armed forces.213

4.9.1.1 Medical Personnel Exclusively Engaged in Medical Duties. Medical 

personnel exclusively engaged in the search for, or the collection, transport, or treatment of the 

wounded or sick, or in the prevention of disease include military physicians, dentists, nurses, 

orderlies, stretcher-bearers, and other persons belonging to the armed forces who give direct care 

to the wounded and sick.214

Persons who are exclusively engaged in the prevention of disease also qualify as military 

medical personnel. For example, veterinary personnel qualify for military medical status, if they 

are exclusively engaged in providing health services for military personnel (e.g., performing 

food safety inspections and ensuring that animal illnesses do not spread to humans). However, 

as a general matter, veterinary personnel would not qualify for military medical status based on 

being part of the veterinary service.215

4.9.1.2 Staff Exclusively Engaged in Support to Medical Units and 

Establishments. In addition to persons directly engaged in medical duties, medical personnel 

also include staff exclusively engaged in the administration of medical units and establishments. 

These persons also receive status as medical personnel provided that they are exclusively 

assigned to the Medical Service.216 For example, Medical Service Corps personnel, and 

individuals with a non-medical Military Occupation Specialty permanently assigned to a medical 

unit or facility (such as its cooks, clerks and supply personnel, or crews operating permanent 

medical aircraft), would qualify for military medical status.

4.9.1.3 Chaplains Attached to the Armed Forces. Chaplains attached to the armed 

forces include any cleric, regardless of faith, who is attached to the armed forces of a belligerent

and assigned duties exclusively of a religious or spiritual nature.217

 213 GWS art. 24 (“Medical personnel exclusively engaged in the search for, or the collection, transport or treatment 

of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical 

units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected at all 

times.”).

214 GWS COMMENTARY 218 (“Medical personnel proper. – These are the doctors, surgeons, dentists, chemists, 

orderlies, nurses, stretcher-bearers, etc., who give direct care to the wounded and sick.”).

215 See GWS COMMENTARY 205 (“[GWS Article 22(4) of the GWS], which dates from 1929, was introduced at the 

suggestion of the United States Delegation, which pointed out that veterinary personnel were attached to medical 

units in the American Army. A proposal, made by another delegation in 1929, to place the Veterinary Service on 

the same footing as the Medical Service was, on the other hand, rejected.”).

216 GWS COMMENTARY 219 (“These are persons who look after the administration of medical units and 

establishments, without being directly concerned in the treatment of the wounded and sick. They include office 

staff, ambulance drivers, cooks (male or female), cleaners, etc. Like the previous category, they form part of the 

Medical Service of the armed forces, and accordingly had to be accorded the same immunity as medical personnel 

proper. They form an integral part of medical units and establishments, which could not function properly without 

their help. They too must be exclusively assigned to the Medical Service.”).

217 GWS art. 24. Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 99 (AP I art. 8, ¶2.6) (“In the new definition [of 

‘religious personnel’ in AP I], the Christian notion of “chaplain” is only used by way of an example. Religious 

personnel are ministers of any religion. What is a ‘minister’ will not always be easy to determine, because that 

concept varies from religion to religion. Again the word ‘exclusively’ adds some precision. A lay preacher, being, 
130

4.9.2 Requirements for Military Medical and Religious Status. To acquire and retain 

military medical and religious status, members of the armed forces must (1) belong to a force 

whose members qualify for POW status; (2) be designated as exclusive medical or religious 

personnel by their armed forces; and (3) serve exclusively in a medical or religious capacity.

Underlying military medical and religious status is the principle that the armed forces 

have committed to use these personnel exclusively in a humanitarian role; thus, these personnel 

have a “supra-national” and “quasi-neutral character” because their humanitarian duties place 

them “above the conflict.”218

4.9.2.1 Belong to a Force Whose Members Qualify for POW Status. To acquire 

military medical and religious status, a person must belong to an armed force whose members 

qualify for POW status, i.e., the armed forces of a State, regular armed forces who profess 

allegiance to a government or an authority not recognized by the Detaining Power, or other 

militia and volunteer corps meeting the conditions in the GPW.219 For example, medical 

personnel belonging to non-State armed groups would not be entitled to retained personnel status 

under the GWS, GWS-Sea, and GPW because their members do not qualify for POW status.

4.9.2.2 Designated by Their Armed Forces. To acquire military medical and 

religious status, members of the armed forces must be designated as such by their armed forces, 

usually by being part of the official medical or religious service.220 A member of the armed 

forces cannot designate himself or herself as military medical or religious personnel.

Thus, members of the armed forces do not acquire military medical and religious status 

merely by performing medical or religious functions or by having medical or religious training. 

For example, a member of a special operations unit might be trained as a medical specialist, but 

not be designated as military medical personnel, because that person is expected to perform both 

 

if a ‘minister’, a part-time minister, is not protected as religious personnel. Furthermore, the protection does not 

extend to every individual minister. The protection granted by the First and Second Conventions only applies to 

those attached to the armed forces or to a hospital ship.”).

218 GWS COMMENTARY 244 (“On the one hand, the Conference thought it necessary to affirm the supra-national and 

quasi-neutral character of personnel whose duties placed them above the conflict.”). See also Vowinckel v. First 

Federal Trust Co., 10 F.2d 19, 21 (9th Cir. 1926) (“Red Cross surgeons and nurses, who are engaged exclusively in 

ameliorating the condition of the wounded of the armies in the field, and in alleviating the sufferings of mankind in 

general, are not enemies of the United States in any proper sense of that term.”); WINTHROP, MILITARY LAW &

PRECEDENTS 779 (“Another class who are to be exempt from violence, or seizure as prisoners, are the surgeons, 

assistants and employees charged with the care and transport of the wounded on the field and the attendance upon 

them in field ambulance or hospital. Persons of this class ‘enjoy the rights of neutrality, provided they take no 

active part in the operations of war.’”).

219 Refer to § 4.5 (Armed Forces of a State); § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a 

Government or an Authority Not Recognized by the Detaining Power); § 4.6 (Other Militia and Volunteer Corps).

220 See GWS COMMENTARY 218 (“Article 24 refers to the official medical personnel and chaplains of the armed 

forces.”); id. at 220 (“On the other hand, chaplains, to be accorded immunity, must be attached to the armed forces. 

They do not attach themselves. The decision will rest with the competent military authorities and the relationship 

must be an official one. Accordingly, ministers of religion who wish to serve in a non-official capacity, are not 

covered by the Convention, and, until such time as they have been regularly appointed, act at their own risk and 

peril.”). Cf. GPW art. 32 (referring to POWs “who, though not attached to the medical service of their armed forces, 

are physicians, surgeons, dentists, nurses or medical orderlies,” as not being entitled to retained personnel status).
131

combatant and medical duties. That person, therefore, would not receive the rights, duties, and 

liabilities related to military medical status. He or she, however, may be treated like military 

medical personnel while detained by the enemy by being required to perform medical duties.221

4.9.2.3 Exclusively Engaged in Humanitarian Duties. In order to establish and

maintain their status as military medical or religious personnel, these personnel must serve 

exclusively in a humanitarian capacity. This assignment must generally be permanent.222

Military physicians or other medical specialist personnel who are not exclusively 

engaged in humanitarian duties, such as duties that involve committing acts harmful to the 

enemy, would not be entitled to military medical status.

223 For example, an Army Medical 

Corps or Medical Service Corps officer serving as the commander of a tactical convoy would not 

be entitled to military medical status.

224 Similarly, in general, persons who engage in combat 

search and rescue missions would not be exclusively engaged in humanitarian duties, since 

preventing the capture of combatants by the adversary constitutes an act harmful to the enemy.225 

However, these individuals may be treated like auxiliary medical personnel or members of the 

armed forces who are trained in medical care, but who are not attached to the medical service.226

The requirement that military medical and religious personnel serve exclusively in a 

humanitarian capacity not only requires that they refrain from acts harmful to the enemy, but also 

has been interpreted as an affirmative obligation to serve in a humanitarian capacity. For 

example, captured military medical personnel who refuse to perform their medical duties to care 

for fellow prisoners would not be entitled to retained personnel status.227

 221 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3

(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).

222 See GWS COMMENTARY 219 (“The words ‘exclusively engaged’ indicate that the assignment must be permanent, 

which is not the case in Article 25 dealing with auxiliary personnel.”).

223 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

224 See W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the Geneva 

Conventions, reprinted in THE ARMY LAWYER 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD 

noncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the ‘exclusively 

engaged’ criteria of article 24 are not entitled to its protections but, under article 25, are entitled to protection from 

intentional attack during those times in which they are performing medical support functions. This would include 

physicians who, while serving as medical company commanders, might be detailed to perform the duties specified 

in paragraph 2b. [¶2b. The medical company commander, a physician, and the executive officer, an MSC officer, 

by nature of their positions and grade, may be detailed as convoy march unit commanders. In this position they 

would be responsible for medical and nonmedical unit routes of march, convoy control, defense, and repulsing 

attacks.]”).

225 Refer to § 7.10.3.1 (Acts Harmful to the Enemy).

226 Refer to § 4.13 (Auxiliary Medical Personnel); § 4.5.2.2 (Members Trained as Medical Personnel, but Not 

Attached to the Medical Service).

227 See LEVIE, POWS 74 (“But what of the physician in the power of the enemy who, perhaps for some ideological 

reason, refuses to perform any professional duties and will not provide medical treatment for the sick and wounded 

members of the armed forces of his own Power of Origin? This was the procedure followed by most of the North 

Vietnamese medical personnel captured in Vietnam. The South Vietnamese responded by treating them as ordinary 

prisoners of war. Once again, there was probably no specific legal basis for such action; but certainly, if a member 
132

4.10 RIGHTS, DUTIES, AND LIABILITIES OF MILITARY MEDICAL AND RELIGIOUS PERSONNEL 

Although military medical and religious personnel are members of, or attached to, the 

armed forces and are in many respects treated like combatants, they are afforded special 

privileges so that they may fulfill their humanitarian duties. They must be respected and 

protected in all circumstances. In turn, they generally may not commit acts harmful to the 

enemy. If they fall into the power of the enemy during international armed conflict, they may be 

retained to care for, or minister to, POWs.

4.10.1 Military Medical and Religious Personnel - Conduct of Hostilities. Military 

medical and religious personnel may not be made the object of attack.228 However, military 

medical and religious personnel must accept the risks of incidental harm from military 

operations.229

Military medical and religious personnel generally may not commit acts harmful to the 

enemy (e.g., resisting lawful capture by the enemy military forces).

230 Military medical and 

religious personnel, however, may employ arms in self-defense or in defense of their patients 

against unlawful attacks.231 

Military medical and religious personnel who take actions outside their role as military 

medical and religious personnel forfeit the corresponding protections of their special status and 

may be treated as combatants or auxiliary medical personnel, as appropriate.

232

4.10.2 Military Medical and Religious Personnel - Detention. If military medical and 

religious personnel fall into the power of the enemy during international armed conflict, they are 

not held as POWs, but instead are held as retained personnel.233 They should present their 

identity cards to demonstrate their status as retained personnel.234 They are retained so that they 

may fulfill their humanitarian duties to care for, or minister to, POWs.235

Although they are not held as POWs, military medical and religious personnel receive, at 

a minimum, the protections of POW status.236 In addition, retained personnel shall be granted all 

 

of the medical profession refuses to employ his professional abilities, even for the benefit of his own countrymen, he 

is denying his professional status and, under those circumstances, there is little that a Detaining Power can do except 

to remove him from the category of a retained person and to place him in a general prisoner-of-war status (unless his 

recalcitrance is to be rewarded by repatriation).”).

228 Refer to § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

229 Refer to § 7.8.2.1 (Incidental Harm Not Prohibited).

230 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

231 Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

232 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

233 Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

234 Refer to § 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).

235 Refer to § 7.9.3 (Duties of Retained Personnel).

236 Refer to § 7.9.5.1 (POW Treatment as a Minimum).
133

facilities necessary to provide for the medical care of, and religious ministration to, POWs.237 

For example, retained personnel may not be compelled to carry out any work other than that 

concerned with their medical or religious duties.238 Retained personnel shall be authorized to 

visit periodically POWs situated in working detachments or in hospitals outside the camp.239 

Retained personnel, through their senior officer in each camp, have the right to deal with the 

competent authorities of the camp on all questions relating to their duties.240

If they are not needed to care for, or minister to, POWs, and if military requirements 

permit, retained personnel should be returned to the forces to which they belong so that they may 

continue to care for, or minister to, members of their armed forces.241 The parties to the conflict 

would establish special agreements to establish the procedures for repatriation.

242 

4.11 AUTHORIZED STAFF OF VOLUNTARY AID SOCIETIES

States may choose to employ the staff of National Red Cross Societies and that of other 

Voluntary Aid Societies, like military medical and religious personnel. If States subject such 

staff to military laws and regulations, then such personnel are to be treated like military medical 

and religious personnel.

243 States must notify other Parties to the 1949 Geneva Conventions 

before actually employing such personnel.244

4.11.1 American National Red Cross. Under U.S. law, the American National Red Cross

is a voluntary aid society authorized to support the U.S. armed forces in time of war.245 

American National Red Cross personnel who support the U.S. armed forces in military 

operations in this way are subject to the Uniform Code of Military Justice.

246

 237 Refer to § 7.9.5.2 (All Facilities Necessary to Provide for the Medical Care of, and Religious Ministration to, 

POWs).

238 Refer to § 7.9.5.6 (No Other Compulsory Duties).

239 Refer to § 7.9.5.3 (Visits of POWs Outside the Camp).

240 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

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

242 Refer to § 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained); § 7.9.5.8 (Agreements on 

Possible Relief of Retained Personnel).

243 See GWS art. 26 (“The staff of National Red Cross Societies and that of other Voluntary Aid Societies, duly 

recognized and authorized by their Governments, who may be employed on the same duties as the personnel named 

in Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff of 

such societies are subject to military laws and regulations.”).

244 See GWS art. 26 (“Each High Contracting Party shall notify to the other, either in time of peace or at the 

commencement of or during hostilities, but in any case before actually employing them, the names of the societies 

which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed 

forces.”).

245 See 36 U.S.C. § 300102 (the purposes of the American National Red Cross include “to provide volunteer aid in 

time of war to the sick and wounded of the Armed Forces, in accordance with the spirit and conditions of ... the 

treaties of Geneva, August 22, 1864, July 27, 1929, and August 12, 1949” and “to perform all the duties devolved on 

a national society by each nation that has acceded to any of those treaties, conventions, or protocols”).

246 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).
134

4.12 STAFF OF A RECOGNIZED AID SOCIETY OF A NEUTRAL COUNTRY

The 1949 Geneva Conventions recognize that neutral States may lend their recognized 

aid societies to a party to the conflict by placing those personnel and units under the control of 

that party to the conflict.247 The neutral Government shall notify this consent to the adversary of 

the State that accepts such assistance, and the party to a conflict that accepts such assistance must 

notify enemy States before using it.248 This assistance is not considered as interference in the 

conflict by the neutral State.

249

The staff of a recognized aid society of a neutral country who have been lent to a party to 

the conflict must be furnished with an identity card similar to that provided to retained personnel 

before leaving their neutral State.250 Such personnel who have fallen into the hands of the 

adverse party may not be detained.251 Unless otherwise agreed, such personnel shall have 

permission to return to their country, or if this is not possible, to the territory of the party to the 

conflict in whose service they were, as soon as a route for their return is open and military 

considerations permit.252 Pending their release, such personnel shall continue their work under 

the direction of the adverse party; they shall preferably be engaged in the care of the wounded 

and sick of the party to the conflict in whose service they were.253 On their departure, they shall 

take with them their effects, personal articles and valuables and the instruments, arms, and if 

possible, the means of transport belonging to them.254

Such personnel, while in the power of a party to the conflict, should be treated on the 

same basis as corresponding personnel of the armed forces of that party to the conflict; food in 

particular must be sufficient as regards quantity, quality, and variety to keep them in a normal 

 247 GWS art. 27 (“A recognized Society of a neutral country can only lend the assistance of its medical personnel 

and units to a Party to the conflict with the previous consent of its own Government and the authorization of the 

Party to the conflict concerned. That personnel and those units shall be placed under the control of that Party to the 

conflict.”).

248 GWS art. 27 (“The neutral Government shall notify this consent to the adversary of the State which accepts such 

assistance. The Party to the conflict who accepts such assistance is bound to notify the adverse Party thereof before 

making any use of it.”).

249 GWS art. 27 (“In no circumstances shall this assistance be considered as interference in the conflict.”).

250 GWS art. 27 (“The members of the personnel named in the first paragraph shall be duly furnished with the 

identity cards provided for in Article 40 before leaving the neutral country to which they belong.”); GWS art. 40 

(giving requirements with regard to the identification of “[t]he personnel designated in Article 24 and in Articles 26 

and 27”).

251 GWS art. 32 (“Persons designated in Article 27 who have fallen into the hands of the adverse Party may not be 

detained.”).

252 GWS art. 32 (“Unless otherwise agreed, they shall have permission to return to their country, or if this is not 

possible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return is 

open and military considerations permit.”).

253 GWS art. 32 (“Pending their release, they shall continue their work under the direction of the adverse Party; they 

shall preferably be engaged in the care of the wounded and sick of the Party to the conflict in whose service they 

were.”).

254 GWS art. 32 (“On their departure, they shall take with them their effects, personal articles and valuables and the 

instruments, arms and if possible the means of transport belonging to them.”).
135

state of health.

255 They may also fly their national flag.256

4.13 AUXILIARY MEDICAL PERSONNEL

Auxiliary medical personnel are members of the armed forces specially trained for 

employment, should the need arise, as hospital orderlies, nurses, or auxiliary stretcher-bearers, in 

the search for or the collection, transport, or treatment of the wounded and sick in international 

armed conflict.257 In general, auxiliary medical personnel are treated like combatants; however, 

while carrying out medical duties, they must distinguish themselves by wearing a white armlet 

bearing the distinctive sign (e.g., the red cross), and they may not be made the object of attack.

4.13.1 Auxiliary Medical Personnel – U.S. Armed Forces. The recent practice of the 

United States has not been to employ persons as auxiliary medical personnel. Rather, the U.S. 

armed forces have employed military medical and religious personnel.

258 In addition, the U.S. 

armed forces have given members of the armed forces additional training in combat medicine but 

have not designated them as military medical personnel or as auxiliary medical personnel.

259 

Thus, such personnel have not worn the distinctive emblem while engaging in medical duties,

and they may be made the object of attack by the enemy.

Although the recent practice of the United States has not been to employ persons as

auxiliary medical personnel, the United States may later decide to employ auxiliary medical 

personnel, and enemy military forces may employ such personnel. Moreover, certain members 

of the medical corps, who do not qualify as military medical personnel because they perform 

duties inconsistent with exclusive medical status, may be treated like auxiliary medical 

personnel.260

4.13.2 Acquiring Auxiliary Medical Status. As with military medical and religious

 255 GWS art. 32 (“The Parties to the conflict shall secure to this personnel, while in their power, the same food, 

lodging, allowances and pay as are granted to the corresponding personnel of their armed forces. The food shall in 

any case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state of 

health.”).

256 GWS art. 43 (“The medical units belonging to neutral countries, which may have been authorized to lend their 

services to a belligerent under the conditions laid down in Article 27, shall fly, along with the flag of the 

Convention, the national flag of that belligerent, wherever the latter makes use of the faculty conferred on him by 

Article 42. Subject to orders to the contrary by the responsible military authorities, they may on all occasions fly 

their national flag, even if they fall into the hands of the adverse Party.”).

257 GWS art. 25 (“Members of the armed forces specially trained for employment, should the need arise, as hospital 

orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the 

wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when 

they come into contact with the enemy or fall into his hands.”).

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

259 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service).

260 See, e.g., W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the Geneva 

Conventions, reprinted in THE ARMY LAWYER 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD 

noncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the ‘exclusively 

engaged’ criteria of article 24 are not entitled to its protection but, under article 25 are entitled to protection from 

intentional attack during those times in which they are performing medical support functions.”).
136

status, members of the armed forces do not acquire auxiliary medical status simply by 

performing medical duties.261 For example, a combatant who treats fellow combatants on the 

battlefield does not automatically acquire auxiliary medical status. Similarly, persons do not 

acquire auxiliary medical status only because they happen to have medical training.

In order to acquire auxiliary medical status, a person must receive appropriate training 

and be designated as such by his or her armed forces.262 Those armed forces must provide 

proper identification to such persons, including an armband and a special identity document.

263

4.13.3 Auxiliary Medical Personnel – Conduct of Hostilities. Auxiliary medical 

personnel may not be made the object of attack when carrying out their medical duties.

264 

Auxiliary medical personnel shall wear, but only while carrying out medical duties, a white 

armlet bearing in its center the distinctive sign in miniature; the armlet shall be issued and 

stamped by the military authority.265 In addition, auxiliary medical personnel must abstain from 

acts harmful to the enemy while carrying out their medical duties.

266

When the above conditions are not present, auxiliary medical personnel may be made the 

object of attack on the same basis as other combatants.

4.13.4 Auxiliary Medical Personnel – Detention. Auxiliary medical personnel are POWs 

when detained by the enemy during international armed conflict, but may be required to perform 

their medical duties, as needed.267 Auxiliary medical personnel are not subject to the repatriation 

provisions that apply specifically to retained personnel.268

4.14 PERSONNEL ENGAGED IN DUTIES RELATED TO THE PROTECTION OF CULTURAL PROPERTY

During armed conflict, different classes of persons may be engaged in duties related to 

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

262 GWS COMMENTARY 222 (“To be accorded immunity, auxiliary personnel must, as we have said, have received 

special medical training beforehand, the nature and duration of which are wisely not defined. If it is necessary to 

make good a deficiency in permanent personnel, such training may even take place in wartime; but personnel filling 

this temporary role must in any case have had a real training.”).

263 GWS COMMENTARY 223-24 (“To have immunity even on the battlefield, military personnel caring for the 

wounded had to form a distinct category—that of medical personnel—and enjoy a separate status, recognizable by a 

distinctive emblem and an identity card. If recourse was had to such safeguards, it was because military 

considerations demanded them. Otherwise the risk of abuse would have been too great. It is not straining the 

imagination to picture combatants approaching an enemy position, ostensibly to assist the wounded, and then 

opening fire in order to seize it: similarly, a fighting unit might suddenly transform itself into a medical unit, in 

order to avoid enemy fire.”).

264 Refer to § 7.8.1 (Categories of Persons Who Are Entitled to Respect and Protection as Medical and Religious 

Personnel on the Battlefield).

265 Refer to § 7.8.4.2 (Wearing of Armlet With Miniature Distinctive Emblem).

266 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

267 See GWS art. 29 (“Members of the personnel designated in Article 25 who have fallen into the hands of the 

enemy, shall be prisoners of war, but shall be employed on their medical duties in so far as the need arises.”).

268 Refer to § 4.10.2 (Military Medical and Religious Personnel - Detention).
137

the protection of cultural property. These classes of persons may include: specialist personnel in 

the armed forces, armed custodians specially empowered to guard cultural property, as well as 

persons who are engaged in duties of control in accordance with the Regulations for the 

Execution of the 1954 Hague Cultural Property Convention. So far as consistent with the 

interests of security, such personnel should be respected and permitted to carry out their duties 

for the protection of cultural property.

4.14.1 Personnel Engaged in the Protection of Cultural Property. As far as is consistent 

with the interests of security, personnel engaged in the protection of cultural property shall, in 

the interests of such property, be respected and, if they fall into the hands of the opposing party, 

shall be allowed to continue to carry out duties whenever the cultural property for which they are 

responsible has also fallen into the hands of the opposing party.

269 Such personnel are analogous 

to military medical and religious personnel who also shall continue to carry out their medical and 

spiritual duties when they have fallen into the hands of the enemy.

270

No special agreement may be concluded that would diminish the protection afforded by 

the 1954 Hague Cultural Property Convention to the personnel engaged in the protection of 

cultural property.

271

4.14.1.1 Specialist Personnel in the Armed Forces. States, especially Parties to 

the 1954 Hague Cultural Property Convention, may have within their armed forces, services or 

specialist personnel whose purpose is to secure respect for cultural property and to cooperate 

with the civilian authorities responsible for safeguarding it.272 The United States has long had 

such personnel in its armed forces.273

For example, during World War II, Allied forces dedicated a specific group of personnel 

who were tasked to save as much of the culture of Europe as they could during combat.274 These 

 269 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 15 (“As far as is consistent with the interests of security, 

personnel engaged in the protection of cultural property shall, in the interests of such property, be respected and, if 

they fall into the hands of the opposing Party, shall be allowed to continue to carry out duties whenever the cultural 

property for which they are responsible has also fallen into the hands of the opposing Party.”); ROERICH PACT art. 1 

(requiring respect and protection for personnel of “[t]he historic monuments, museums, scientific, artistic, 

educational and cultural institutions”).

270 Refer to § 7.9.3 (Duties of Retained Personnel).

271 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 24(2) (“No special agreement may be concluded which 

would diminish the protection afforded by the present Convention to cultural property and to the personnel engaged 

in its protection.”).

272 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (“The High Contracting Parties undertake to plan or 

establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to secure 

respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it.”).

273 Section-by-Section Analysis of Provisions, 4, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998, 

MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 5 (“It is 

longstanding U.S. Army practice to maintain such personnel in their civil affairs reserve force. Marine Corps 

reserve civil affairs personnel receive training to perform similar functions if necessary.”).

274 R. M. EDSEL, THE MONUMENTS MEN 2 (2009) (“The Monuments Men were a group of men and women from 

thirteen nations, most of whom volunteered for service in the newly created Monuments, Fine Arts, and Archives 

section [of the Western Allied military effort], or MFAA. Most of the early volunteers had expertise as museum 
138

personnel worked to mitigate combat damage to churches and museums and to locate moveable 

works of art that were stolen or missing.275

4.14.1.2 Armed Custodians Specially Empowered to Protect Cultural Property. 

States may use armed custodians who are specially empowered to protect cultural property. The 

guarding of cultural property under special protection by armed custodians specially empowered 

to do so, however, shall not be deemed to be a use for military purposes that would deprive 

cultural property of special protection.276

4.14.2 Persons Responsible for the Duties of Control in Accordance With the Regulations 

for the Execution of the 1954 Hague Cultural Property Convention. A number of persons are 

responsible for the duties of control in accordance with the Regulations for the Execution of the 

1954 Hague Cultural Property Convention. These individuals may include: (1) the DirectorGeneral of the United Nations Educational, Scientific and Cultural Organization (UNESCO); (2) 

a State-appointed representative for cultural property; (3) delegates of the Protecting Powers; (4) 

a Commissioner-General for Cultural Property; and (5) inspectors and experts proposed by the 

Commissioner-General for Cultural Property.

The Commissioners-General for Cultural Property, delegates of the Protecting Powers, 

inspectors, and experts shall in no case exceed their mandates. In particular, they shall take 

account of the security needs of the Party to the 1954 Hague Cultural Property Convention to 

which they are accredited and shall in all circumstances act in accordance with the requirements 

of the military situation as communicated to them by that State.

277

4.14.2.1 Director-General of UNESCO. Under the 1954 Hague Cultural Property 

Convention, the Director-General of the United Nations Educational, Scientific, and Cultural 

Organization (UNESCO) plays an important role. For example, among other duties, the 

Director-General compiles and periodically revises an international list consisting of all persons 

nominated by participating States as qualified to carry out the functions of Commissioner-

 

directors, curators, art scholars and educators, artists, architects, and archivists. Their job was simple: to save as 

much of the culture of Europe as they could during combat. The creation of the MFAA section was a remarkable 

experiment. It marked the first time an army fought a war while comprehensively attempting to mitigate cultural 

damage, and was performed without adequate transportation, supplies, personnel, or historical precedent. The men 

tasked with this mission were, on the surface, the most unlikely of heroes.”).

275 R. M. EDSEL, THE MONUMENTS MEN xiv (2009) (“Their initial responsibility was to mitigate combat damage, 

primarily to structures – churches, museums, and other important monuments. As the war progressed and the 

German border was breached, their focus shifted to locating moveable works of art and other cultural items stolen or 

otherwise missing.”).

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

277 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8 (“The 

Commissioners-General for Cultural Property, delegates of the Protecting Powers, inspectors and experts shall in no 

case exceed their mandates. In particular, they shall take account of the security needs of the High Contracting Party 

to which they are accredited and shall in all circumstances act in accordance with the requirements of the military 

situation as communicated to them by that High Contracting Party.”).
139

General for Cultural Property.278

4.14.2.2 State-Appointed Representative for Cultural Property. As soon as any 

Party to the 1954 Hague Cultural Property Convention is engaged in an international armed 

conflict, that Party shall appoint a representative for cultural property situated in its territory; if

that Party is in occupation of another territory, it shall appoint a special representative for 

cultural property situated in that territory.

279

4.14.2.3 Delegates of the Protecting Powers. A Protecting Power shall appoint 

delegates to perform certain functions in the protection of cultural property.280 The delegates of 

the Protecting Powers shall take note of violations of the 1954 Hague Cultural Property 

Convention, investigate, with the approval of the Party to which they are accredited, the 

circumstances in which they have occurred, make representations locally to secure their 

cessation, and, if necessary, notify the Commissioner-General of such violations. They shall 

keep the Commissioner-General informed of their activities.281

4.14.2.4 Commissioner-General for Cultural Property. The Regulations for the 

Execution of the 1954 Hague Cultural Property Convention provide for the appointment of a 

Commissioner-General for cultural property, but always with the approval of the Party to which 

he or she will be accredited.282

 278 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (“On the entry 

into force of the Convention, the Director-General of the United Nations Educational, Scientific and Cultural 

Organization shall compile an international list consisting of all persons nominated by the High Contracting Parties 

as qualified to carry out the functions of Commissioner-General for Cultural Property. On the initiative of the 

Director-General of the United Nations Educational, Scientific and Cultural Organization, this list shall be 

periodically revised on the basis of requests formulated by the High Contracting Parties.”).

279 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as 

any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It 

shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it 

shall appoint a special representative for cultural property situated in that territory;”).

280 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as 

any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (b) The 

Protecting Power acting for each of the Parties in conflict with such High Contracting Party shall appoint delegates 

accredited to the latter in conformity with Article 3 below;”); REGULATIONS FOR THE EXECUTION OF THE 1954

HAGUE CULTURAL PROPERTY CONVENTION art. 3 (“The Protecting Power shall appoint its delegates from among the 

members of its diplomatic or consular staff or, with the approval of the Party to which they will be accredited, from 

among other persons.”).

281 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5 (“The 

delegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval of 

the Party to which they are accredited, the circumstances in which they have occurred, make representations locally 

to secure their cessation and, if necessary, notify the Commissioner-General of such violations. They shall keep him 

informed of their activities.”).

282 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4 (“1. The 

Commissioner-General for Cultural Property shall be chosen from the international list of persons by joint 

agreement between the Party to which he will be accredited and the Protecting Powers acting on behalf of the 

opposing Parties. 2. Should the Parties fail to reach agreement within three weeks from the beginning of their 

discussions on this point, they shall request the President of the International Court of Justice to appoint the 
140

The Commissioner-General exercises a number of functions, including proposing the 

appointment of inspectors and experts, ordering an investigation with the agreement of the Party 

to which he or she is accredited, and drawing up reports on the application of the Convention.283

4.14.2.5 Inspectors and Experts Proposed by the Commissioner-General for

Cultural Property. The Commissioner-General for Cultural Property may propose, for the 

approval of the Party to which the Commissioner-General is accredited, inspectors of cultural 

property to be charged with specific missions.284 The Commissioner-General, delegates, and 

inspectors may have recourse to the services of experts, who will also be proposed for the 

approval of the Party to which the Commissioner-General is accredited.285

In some cases, inspectors may be entrusted with the functions of delegates of the 

Protecting Powers.286

4.14.3 Identifying Personnel Engaged in Duties for the Protection of Cultural Property. 

Persons responsible for duties of control in accordance with the Regulations for the Execution of 

the 1954 Hague Cultural Property Convention, and persons engaged in duties for the protection 

of cultural property, are to carry a special identity card bearing the distinctive emblem.287 In 

 

Commissioner-General, who shall not take up his duties until the Party to which he is accredited has approved his 

appointment.”).

283 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (“1. The 

Commissioner-General for Cultural Property shall deal with all matters referred to him in connexion with the 

application of the Convention, in conjunction with the representative of the Party to which he is accredited and with 

the delegates concerned. 2. He shall have powers of decision and appointment in the cases specified in the present 

Regulations. 3. With the agreement of the Party to which he is accredited, he shall have the right to order an 

investigation or to, conduct it himself. 4. He shall make any representations to the Parties to the conflict or to their 

Protecting Powers which he deems useful for the application of the Convention. 5. He shall draw up such reports as 

may be necessary on the application of the Convention and communicate them to the Parties concerned and to their 

Protecting Powers. He shall send copies to the Director-General of the United Nations Educational, Scientific and 

Cultural Organization, who may make use only of their technical contents. 6. If there is no Protecting Power, the 

Commissioner-General shall exercise the functions of the Protecting Power as laid down in Articles 21 and 22 of the 

Convention.”).

284 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(1) 

(“Whenever the Commissioner-General for Cultural Property considers it necessary, either at the request of the 

delegates concerned or after consultation with them, he shall propose, for the approval of the Party to which he is 

accredited, an inspector of cultural property to be charged with a specific mission. An inspector shall be responsible 

only to the Commissioner-General.”).

285 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (“The 

Commissioner-General, delegates and inspectors may have recourse to the services of experts, who will also be 

proposed for the approval of the Party mentioned in the preceding paragraph.”).

286 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (“If a Party to 

the conflict does not benefit or ceases to benefit from the activities of a Protecting Power, a neutral State may be 

asked to undertake those functions of a Protecting Power which concern the appointment of a CommissionerGeneral for Cultural Property in accordance with the procedure laid down in Article 4 above. The CommissionerGeneral thus appointed shall, if need be, entrust to inspectors the functions of delegates of Protecting Powers as 

specified in the present Regulations.”).

287 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(2) (“[The 

persons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention] shall carry a special identity card 

bearing the distinctive emblem. This card shall mention at least the surname and first names, the date of birth, the 
141

addition, such persons may wear an armlet bearing the distinctive emblem issued and stamped by 

the competent authorities.

288 

Such persons may not, without legitimate reason, be deprived of their identity card or of 

the right to wear the armlet.289 The distinctive emblem displayed on an armlet or special identity 

card is to be displayed once (as opposed to repeated three times).290

4.15 PERSONS AUTHORIZED TO ACCOMPANY THE ARMED FORCES

Under the law of war, persons who are not members of the armed forces, but are 

authorized to accompany them, fall into a special category. Although they are often referred to 

as “civilians” because they are not military personnel, they differ materially from the civilian 

population because these persons are authorized – and in some cases, are ordered – to 

accompany military forces into a theater of operations to support the force.291

DoD policies have often addressed the use of non-military personnel to support military 

operations.

292

 

title or rank, and the function of the holder. The card shall bear the photograph of the holder as well as his signature 

or his fingerprints, or both. It shall bear the embossed stamp of the competent authorities.”).

288 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(1) (“The 

persons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention may wear an armlet bearing the 

distinctive emblem, issued and stamped by the competent authorities.”).

289 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(4) (“The said 

persons may not, without legitimate reason, be deprived of their identity card or of the right to wear the armlet.”).

290 Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

291 Christian Damson (United States) v. Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 184, 198 

(1925) (concluding that a non-military employee of the U.S. Government whose activities were “directly in 

furtherance of a military operation” was not a “civilian” for the purposes of the Treaty of Berlin and thus was not 

entitled to assert a claim under the provisions of the Treaty of Berlin that provided for Germany to compensate for 

damages to the civilian population that it caused during World War I); Arthur Ellt Hungerford (United States) v. 

Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 368, 371 (1926) (“From the foregoing it is 

apparent that the members of the Y.M.C.A. who served on the western front were, in the language of the 

Commander-in-Chief of the A.E.F., ‘militarized and *** under the control and supervision of the American military 

authorities’. Or, to use the language of their own spokesman, they were ‘a part of the military machine’. They 

rendered military service of a high order. The mere fact that they were not formally inducted into the Army or were 

not in the pay of the Government of the United States is immaterial so far as concerns the question here presented. 

They had voluntarily segregated themselves from ‘the civilian population’ as that term is used in the Treaty of 

Berlin. They had deliberately exposed themselves and their personal belongings to the risks of war which began at 

the port of embarkation. The provisions of the Treaty of Berlin obligating Germany to make compensation for 

damages to ‘civilians’ or to ‘civilian victims’ or to the ‘civilian population’ were manifestly intended to apply to the 

passive victims of warfare, not to those who entered the war zone, subjected themselves to risks to which members 

of the civilian population generally were immune, and participated in military activities, whether as combatants or 

noncombatants.”).

292 For example, DOD INSTRUCTION 3020.41, Operational Contract Support (OCS) (Dec. 20, 2011); DOD

INSTRUCTION 1100.22, Policies and Procedures for Determining Workforce Mix (Apr. 12, 2010); DOD DIRECTIVE

1404.10, DoD Civilian Expeditionary Workforce (Jan. 23, 2009); DOD INSTRUCTION 1400.32, DoD Civilian Work 

Force Contingency and Emergency Planning Guidelines and Procedures (Apr. 24, 1995); DOD DIRECTIVE 1404.10, 
142

Persons authorized to accompany the armed forces may not be made the object of attack 

unless they take direct part in hostilities. They may, however, be detained by enemy military 

forces, and are entitled to POW status if they fall into the power of the enemy during 

international armed conflict. They have legal immunity from the enemy’s domestic law for 

providing authorized support services to the armed forces.

4.15.1 Persons Authorized to Accompany the Armed Forces – Notes on Terminology. In 

the past, the category of persons who “accompany” or “follow” the armed forces has referred to 

journalists, private clergy, and sutlers,

293 who traditionally were subject to the jurisdiction of the 

army that they accompanied.

294 These persons, to the extent that they were simply following the 

armed forces for their own purposes and not to provide support to military operations, were 

subject to detention, not as POWs, but like civilians, only if specifically necessary.295 On the 

other hand, non-military persons who were serving the armed forces, such as civilian employees 

of the war department, were detained as POWs.

296

Article 4A(4) of the GPW reflects the modern practice and rule.

297 Persons authorized to 

accompany the armed forces under Article 4A(4) include employees of the Department of 

 

Emergency-Essential DoD U.S. Civilian Employees (Apr. 10, 1992); DOD INSTRUCTION 3020.37, Continuation of 

Essential DoD Contractor Services During Crises (Nov. 6, 1990 Incorporating Change 1, Jan. 26, 1996).

293 “Sutler” is an old term for a civilian provisioner to the army, whether in garrison or in the field.

294 For example, Articles of War, art. 2(d), Jun. 4, 1920, 41 STAT. 759, 787 (“All retainers to the camp and all 

persons accompanying or servicing with the armies of the United States without the territorial jurisdiction of the 

United States, and in time of war all such retainers and persons accompanying or serving with the armies of the 

United States in the field, both within and without the territorial jurisdiction of the United States, though not 

otherwise subject to these articles”); American Articles of War of 1775, art. 32, Jun. 30, 1775, reprinted in

WINTHROP, MILITARY LAW & PRECEDENTS 953 (“All suttlers and retailers to a camp, and all persons whatsoever, 

serving with the continental army in the field, though not in-listed soldiers, are to be subject to the articles, rules, and 

regulations of the continental army.”).

295 WINTHROP, MILITARY LAW & PRECEDENTS 789 (“Camp-followers, including members of soldiers’ families, 

sutlers, contractors, newspaper correspondents, and others allowed with the army but not in the public employment, 

should, when taken, be treated similarly as prisoners of war, but should be held only so long as may be necessary.”) 

(emphasis added).

296 See, e.g., SPAIGHT, WAR RIGHTS ON LAND 304 (“[W]hat persons may be made prisoner of war” includes 

“persons not commissioned or enlisted, but employed permanently by an army as pay-clerks, telegraph-operators, 

engine drivers, or, generally, in any civilian capacity with an army in the field.”); WINTHROP, MILITARY LAW &

PRECEDENTS 789 (“The class of persons entitled upon capture to the privileges of prisoners of war comprises 

members of the enemy’s armies, embracing both combatants and non-combatants, and the wounded and sick taken 

on the field and in hospital. It should comprise also civil persons engaged in military duty or in immediate 

connection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, messengers, guides, scouts, 

and men employed on transports and military railways—the class indeed of civilians in the employment and service 

of the government such as are specified in our 63d Article of War as ‘Persons serving with the armies in the 

field.’”).

297 See GPW COMMENTARY 64 (“The Conference of Government Experts considered that the text of Article 81 of 

the 1929 Convention had become obsolete (in particular the word ‘sutlers’ is no longer appropriate) and should 

include a reference to certain other classes of persons who were more or less part of the armed forces and whose 

position when captured had given rise to difficulties during the Second World War. The list given is only by way of 

indication, however, and the text could therefore cover other categories of persons or services who might be called 

upon, in similar conditions, to follow the armed forces during any future conflict.”).
143

Defense, employees of other government agencies sent to support the armed forces, and other 

authorized persons working on government contracts to support the armed forces. DoD practice 

has been to permit a broad range of civilians to be authorized to accompany U.S. forces.298

Persons authorized to accompany the armed forces are often referred to, and treated as,

“civilians,” since they are not members of the armed forces. However, as discussed below, 

persons authorized to accompany the armed forces are also treated like “combatants” in some 

respects.

4.15.2 Persons Authorized to Accompany the Armed Forces – Conduct of Hostilities. 

The rules relating to the conduct of hostilities for persons authorized to accompany the armed 

forces are similar in some respects to the rules relating to military medical and religious 

personnel. For example, persons in both classes: (1) generally may not be made the object of 

attack; (2) accept certain risks of incidental harm from enemy military operations; and (3) have 

the right of self-defense against unlawful attacks.299

4.15.2.1 Liability to Being Made the Object of Attack. For the purposes of 

determining whether they may be made the object of attack, persons authorized to accompany

the armed forces are treated as civilians. They may not be made the object of attack unless they 

take direct part in hostilities.300

4.15.2.2 Employment in Hostilities. The law of war does not prohibit persons

authorized to accompany the armed forces from providing authorized support that constitutes 

taking direct part in hostilities. Even if the authorized support that they provide constitutes 

taking a direct part in hostilities, such persons retain their entitlement to POW status under 

Article 4A(4) of the GPW.

301 Although international law does not prohibit States from using 

persons authorized to accompany the armed forces to provide support that constitutes direct 

participation in hostilities, commanders should exercise care in placing such personnel in 

situations in which an attacking enemy may consider their activities to constitute taking a direct 

part in hostilities, as there may be legal and policy considerations against such use.

Commanders may not employ persons authorized to accompany the armed forces to 

perform duties and functions traditionally performed by a military person if such action is taken 

 298 For example, FINAL REPORT ON THE PERSIAN GULF WAR 599 (“In Operations Desert Shield and Desert Storm, 

the United States employed civilians both as career civil service employees and indirectly as contractor employees. 

Civilians performed as part of the transportation system, at the forward depot level repair and intermediate level 

maintenance activities and as weapon systems technical representatives. Civilians worked aboard Navy ships, at Air 

Force (USAF) bases, and with virtually every Army unit. Only the Marine Corps (USMC) did not employ 

significant numbers of civilians in theater. This civilian expertise was invaluable and contributed directly to the 

success achieved.”).

299 Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities).

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

301 Refer to § 4.15.4 (Persons Authorized to Accompany the Armed Forces – Liability Under Domestic Law for 

Participation in Hostilities).
144

for the purpose of shielding a military objective from attack.302

4.15.2.3 Increased Risk of Incidental Harm. Persons authorized to accompany the 

armed forces should expect that they have an increased risk of death or injury incidental to an 

enemy attack because of their deliberate proximity to military operations and military 

objectives.

303 For example, civilian members of military aircrews should expect that they might 

be incidentally injured in an attack against the military aircraft in which they are working.

304 

Similarly, in some cases, the location at which persons authorized to accompany the armed 

forces are serving may itself be a military objective.

305 Furthermore, in some cases, an enemy 

could reasonably conclude that the mere presence of a person at a location (e.g., a remote 

military base) indicates that they are a combatant or are directly participating in hostilities, and 

therefore could lawfully be made the object of attack.

4.15.2.4 Self-Defense and Arming. Persons authorized to accompany the armed 

forces have a right of self-defense against unlawful attacks, such as attacks by bandits. Persons 

authorized to accompany the armed forces should not resist capture by enemy military forces 

whom they expect to respect their status under the law of war. If persons authorized to 

accompany the armed forces make any resistance to enemy military forces, then they may be 

regarded as taking a direct part in hostilities, and may be made the object of attack.306 Their 

resistance to capture by enemy military forces whom they expect to respect their status under the 

law of war would be incompatible with the principle that a person may not claim the distinct 

rights of both combatants and civilians at the same time.307 

The arming of persons authorized to accompany the armed forces is analogous to the 

arming of military medical and religious personnel.308 DoD practice has been to permit 

commanders to authorize persons authorized to accompany the armed forces to carry defensive 

weapons if necessary.309

A State may decide to arm persons authorized to accompany the armed forces for 

 302 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

303 Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

304 Refer to § 14.4.2 (Civilian Members of Military Aircrew and Other Persons Authorized to Accompany the 

Armed Forces).

305 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

306 Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

307 Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the 

Same Time).

308 Refer to § 7.10.3.4 (Arming of Military Medical Units or Facilities).

309 See DOD INSTRUCTION 1100.22, Policy and Procedures for Determining Workforce Mix, E-5 ¶2.d.(5)(a) (Apr. 

12, 2010) (“It is not a violation of the law of war for DoD civilians and Defense contractor employees who are 

authorized to accompany the armed forces in the field during hostilities to be issued a weapon on the authority of the 

Combatant Commander for individual self-defense as addressed in References (n), (o), and (t).”); DOD INSTRUCTION

3020.41, Operational Contract Support (OCS), E-2 ¶4.e (Dec. 20, 2011) (describing policy procedures for issuing 

weapons to contingency contractor personnel).
145

personal security and self-defense purposes without incorporating them into the armed forces or 

otherwise authorizing them to act as a combatant.

4.15.2.5 Wearing of Uniform. The law of war does not prohibit persons 

authorized to accompany the armed forces from wearing a uniform, including the uniform of 

armed forces that they accompany. Recent U.S. practice, however, has been to ensure that 

persons accompanying U.S. forces wear clothing that distinguishes them from members of the 

armed forces in order to prevent confusion about their status.310 

Persons who wear a military uniform accept the risk of being made the object of attack by 

enemy forces, as the enemy would reasonably believe them to be lawful objects of attack. 

However, the mere wearing of a uniform or being authorized by a State to wear a uniform does 

not necessarily authorize that person to act as a combatant.

4.15.2.6 Provision of Security Services. Persons authorized to accompany the 

armed forces who provide security against criminal elements generally would not be viewed as 

taking a direct part in hostilities (and do not forfeit their protection from being made the object of 

attack).

311 However, providing such services to defend against enemy armed forces of a State 

would be regarded as taking a direct part in hostilities (and would forfeit their protection from 

being made the object of attack).

312 

DoD policies have addressed the use of non-military personnel to provide security 

services for DoD components.313 Where there has been a significant risk of attack by enemy 

armed forces of a State, DoD practice generally has been to use military personnel to provide 

security.

4.15.3 Persons Authorized to Accompany the Armed Forces – Detention. For the 

purposes of detention, persons authorized to accompany the armed forces are treated like 

combatants. These persons may be detained by the enemy and are entitled to POW status during 

 310 DOD INSTRUCTION 3020.41, Operational Contract Support (OCS), E-2 ¶3.j (Dec. 20, 2011) (“Defense 

contractors or their personnel are responsible for providing their own personal clothing, including casual and 

working clothing required by the assignment. Generally, commanders shall not issue military clothing to contractor 

personnel or allow the wearing of military or military look-alike uniforms. However, a CCDR [Combatant 

Commander] or subordinate JFC [Joint Force Commander] deployed forward may authorize contractor personnel to 

wear standard uniform items for operational reasons. Contracts shall require that this authorization be in writing and 

maintained in the possession of authorized contractor personnel at all times. When commanders issue any type of 

standard uniform item to contractor personnel, care must be taken to ensure, consistent with force protection 

measures, that contractor personnel are distinguishable from military personnel through the use of distinctive 

patches, arm bands, nametags, or headgear.”).

311 Compare § 4.23.1 (Police as Civilians).

312 Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

313 For example, DOD INSTRUCTION 3020.50, Private Security Contractors Operating in Contingency Operations, 

Humanitarian or Peace Operations, or Other Military Operations or Exercises (Jul. 22, 2009, Incorporating Change 

1, Aug. 1, 2011).
146

international armed conflict.

314

When held as POWs, persons authorized to accompany the armed forces are to receive 

advance of pay from the Detaining Power, and they should be assigned equivalent ranks to those 

of members of the armed forces for this purpose.

315 

Persons who are authorized to accompany the armed forces must be issued an identity 

card to confirm their status.316 Presenting the identification card is not a prerequisite for POW 

status, but it helps captured persons establish to enemy forces that they are entitled to POW 

status.317

4.15.4 Persons Authorized to Accompany the Armed Forces – Liability Under Domestic 

Law for Participation in Hostilities. Unlike combatants, persons authorized to accompany the 

armed forces receive no general license to participate in hostilities. However, international law

contemplates that persons authorized to accompany the armed forces may lawfully support 

armed forces in the conduct of hostilities. Such persons should not be liable under an enemy 

State’s domestic law for providing authorized support services.

318 For example, they should not 

be prosecuted for offenses of aiding the enemy. Persons authorized to accompany the armed 

forces may not be punished by an enemy State for authorized support activities or for defending 

themselves against unlawful attacks. This protection would not apply with respect to acts by 

persons authorized to accompany the armed forces that are prohibited by the law of war.

 314 See GPW art. 4(A)(4) (defining “prisoners of war, in the sense of the present Convention,” to include persons 

who have fallen into the power of the enemy and “who accompany the armed forces without actually being 

members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, 

members of labour units or of services responsible for the welfare of the armed forces, provided that they have 

received authorization from the armed forces which they accompany,”); 1929 GPW art. 81 (“Persons who follow the 

armed forces without directly belonging thereto, such as correspondents, newspaper reporters, sutlers, or contractors, 

who fall into the hands of the enemy, and whom the latter think fit to detain, shall be entitled to be treated as 

prisoners of war, provided they are in possession of an authorization from the military authorities of the armed 

forces which they were following.”); HAGUE IV REG. art. 13 (“Individuals who follow an army without directly 

belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s 

hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are 

in possession of a certificate from the military authorities of the army which they were accompanying.”); LIEBER 

CODE art. 50 (“Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or 

reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.”).

315 Refer to § 9.18.3 (Advance of Pay).

316 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

317 Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).

318 See BOTHE, PARTSCH, & SOLF, NEW RULES 304 (AP I art. 51, ¶2.4.2.2) (“As civilians, they have no general right 

to take part in hostilities, but some activities of these persons could amount to direct participation if done in the 

midst of an ongoing engagement. For example, it is common practice to have civilian technical advisers assist and 

advise in the installation and maintenance of sophisticated command and control or target acquisition equipment. 

Repair of a target acquisition or missile guidance equipment in the midst of battle would probably be regarded as 

direct participation in hostilities. As in the case of a sick bay on a warship, the immunity from attack is academic, 

except with respect to individualized attack against the protected person within a military objective. The issue 

becomes practically significant only if an attempt is made to subject such a civilian to penal sanction for his 

unauthorized participation in hostilities. Under US practice support activities behind the lines of battle is not subject 

to penal sanction, although the support activity may be the legitimate object of attack.”).
147

Persons authorized to accompany the armed forces should not engage in unauthorized 

participation in hostilities. Such activity would be treated like engagement in private acts of 

hostility,

319 and such persons would be in the position of unprivileged belligerents in relation to 

those activities.320

There may be additional considerations in determining which prosecution forum is 

appropriate because persons authorized to accompany the armed forces are not themselves 

members of the armed forces.

321 

Commanders who use persons authorized to accompany the armed forces could, under 

certain circumstances, be prosecuted for war crimes committed by such personnel under theories 

of command responsibility or other theories of individual liability.

322

4.16 CREWS OF MERCHANT MARINE VESSELS OR CIVIL AIRCRAFT

Crews of merchant marine vessels or civil aircraft of a belligerent fall into a special 

category, and are in many respects treated like persons authorized to accompany the armed 

forces.

323 Under certain circumstances, crews of merchant marine vessels or civil aircraft of a 

neutral that engage in hostilities may be treated like the crews of belligerent vessels or aircraft.

324

4.16.1 Merchant or Civil Crews - Conduct of Hostilities. Merchant vessels or civil 

aircraft of a belligerent may be used to support military operations, such as by conveying goods 

and military personnel to theaters of active military operations. 

Enemy merchant vessels or civil aircraft may be captured.325 Belligerent merchant 

vessels or civil aircraft may resist attacks by enemy forces, including by eventually seizing the 

attacking vessels or aircraft.326 However, merchant vessels or civil aircraft should not commit 

hostile acts in offensive combat operations.327

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

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

321 Refer to § 18.19.4.1 (Limits on Military Jurisdiction Over U.S. Citizens Who Are Not Members of the Armed 

Forces).

322 Refer to § 18.23.3 (Command Responsibility); § 18.23 (Theories of Individual Criminal Liability).

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

324 Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked 

Civil Aircraft).

325 Refer to § 13.5 (Enemy Merchant Vessels).

326 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 266 (§85) (“In a sense, the crews of merchantmen owned 

by subjects of a belligerent belong to its armed forces. For those vessels are liable to be seized by enemy men-ofwar, and, if attacked for that purpose, they may defend themselves, may return the attack, and eventually seize the 

attacking men-of-war. The crews of merchant men become in such cases combatants, and enjoy all the privileges of 

the members of the armed forces.”).

327 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 266 (§85) (“But, unless attacked, they must not commit 

hostilities, and if they do so they are liable to be treated as criminals, just as are private individuals who commit 

hostilities in land warfare.”).
148

4.16.2 Merchant or Civil Crews – Detention. Members of the crews of merchant marine 

vessels or civil aircraft of a belligerent are entitled to POW status, if they fall into the power of 

the enemy during international armed conflict.

328

The GPW contemplates that certain members of the crews of merchant marine vessels or 

civil aircraft of a belligerent may benefit from more favorable treatment under international law;

i.e., they would not be detained as POWs. During wartime, enemy merchant seamen have 

customarily been subject to capture and detention.

329 However, the 1907 Hague XI provides that 

the crews of enemy merchant ships that did not take part in hostilities were not to be held as 

POWs provided “that they make a formal promise in writing, not to undertake, while hostilities 

last, any service connected with the operations of the war.”330 Although these provisions proved 

ineffective during World War I and World War II,

331 the GPW allows for the possibility that 

they might apply.332

4.17 SPIES, SABOTEURS, AND OTHER PERSONS ENGAGING IN SIMILAR ACTS BEHIND ENEMY LINES

Spying, sabotage, and similar acts behind enemy lines have a dual character under the 

law of war; States are permitted to employ persons who engage in these activities, but these 

activities are punishable by the enemy State.

Belligerents may employ spies and saboteurs consistent with the law of war. However, 

any person (including individuals who would otherwise receive the privileges of lawful 

combatants) engaging in spying, sabotage, or similar acts behind enemy lines, is regarded as an

unprivileged belligerent while doing so. These persons forfeit entitlement to the privileges of 

combatant status and may be punished after a fair trial if captured.

 328 GPW art. 4A(5) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers of 

crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties 

to the conflict, who do not benefit by more favourable treatment under any other provisions of international law” 

who have fallen into the power of the enemy).

329 GPW COMMENTARY 65 (“In the past, it was generally recognized that in time of war merchant seamen were 

liable to capture.”).

330 See HAGUE XI art. 6 (“The captain, officers, and members of the crew, when nationals of the enemy State, are not 

made prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilities 

last, any service connected with the operations of the war.”); HAGUE XI art. 8 (“The provisions of the three 

preceding articles do not apply to ships taking part in the hostilities.”).

331 See LEVIE, POWS 63 (explaining that Articles 5-8 of Hague XI “proved ineffective during World War I” and 

“[d]uring World War II the provisions of the Eleventh Hague Convention of 1907 were again completely 

disregarded, with the result that there was no assurance as to exactly what the status of a captured merchant seaman 

would be.”). Hague XI had fewer than 30 Parties at that time, and only technically applied when all the belligerents 

to a conflict were also parties to Hague XI. See HAGUE XI art. 9 (“The provisions of the present Convention do not 

apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”). 

Hague XI did not apply during World War II for this reason. See II-A FINAL RECORD OF THE DIPLOMATIC 

CONFERENCE OF GENEVA OF 1949 419 (UK representative noting that “[t]he provisions of the Eleventh Hague 

Convention were not applied during the last War, owing to the fact that all the belligerent States were not parties to 

it.”).

332 For further background see II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 238-39,

418-19.
149

4.17.1 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy 

Lines – Notes on Terminology. Spying has been given a technical definition in the Hague IV 

Regulations.

333 However, as discussed below, certain conduct, most notably sabotage, has been 

treated as having the same legal consequences as spying and has even been called spying, even 

though such acts do not meet the definition of spying in the Hague IV Regulations.

334

In some cases, “saboteurs” has been used in a purely factual way to refer to those persons 

engaged in damaging or destroying enemy materiel.

335 In other cases, “saboteurs” has been used 

as a legal term of art to refer to those persons who are engaged in damaging or destroying enemy 

material and who, by definition, would not be entitled to receive the privileges of combatant 

status.336

4.17.1.1 General Usage of “Spies and Saboteurs” in This Manual. This manual 

generally uses the term “spying and sabotage” to refer to that general category of secretive, 

hostile activities that, when performed behind enemy lines, deprives that person of entitlement to 

the privileges of combatant status. In some places, the phrase “spying, sabotage, and similar acts 

behind enemy lines” is used to make more clear that this general category of acts is broader than 

only spying and sabotage.

4.17.2 Spies. A person may only be considered a spy when, (1) acting clandestinely or 

under false pretenses, (2) in the zone of operations of a belligerent, (3) he or she obtains, or 

endeavors to obtain, information, (4) with the intention of communicating it to the hostile 

party.337 During war, any person—military or civilian—whose actions meet all of these 

elements may be considered a spy under the law of war.

 333 Refer to § 4.17.2 (Spies).

334 Refer to § 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).

335 1958 UK MANUAL ¶331 (“Whether saboteurs, i.e., persons dropped or landed behind the lines of the belligerent 

in order to commit acts of destruction and terrorism, are to be treated as spies depends on whether they are caught in 

disguise or not. If they are disguised in civilian clothing or in the uniform of the army by which they are caught or 

that of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitled 

to be treated as prisoners of war.”).

336 II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representative 

explaining that “[s]aboteurs could not of course claim protection under the Prisoners of War Convention; they 

should nevertheless be protected against criminal treatment and torture.”).

337 HAGUE IV REG. art. 29 (“A person can only be considered a spy when, acting clandestinely or on false pretences, 

he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of 

communicating it to the hostile party.”); LIEBER CODE art. 88 (“A spy is a person who secretly, in disguise or under 

false pretense, seeks information with the intention of communicating it to the enemy.”); id. at art. 83 (“Scouts, or 

single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed 

in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer 

death.”); WINTHROP, MILITARY LAW & PRECEDENTS 766-67 (“A spy is a person who, without authority and 

secretly, or under a false pretext, contrives to enter within the lines of an army for the purpose of obtaining material 

information and communicating it to the enemy; or one who, being by authority within the lines, attempts secretly to 

accomplish such purpose.”). Consider AP I art. 46(3) (“A member of the armed forces of a Party to the conflict who 

is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers 

or attempts to gather information of military value within that territory shall not be considered as engaging in 

espionage unless he does so through an act of false pretences or deliberately in a clandestine manner.”).
150

The following discussion elaborates upon the elements of spying.

4.17.2.1 Acting Clandestinely or Under False Pretenses. Acting “clandestinely or 

under false pretenses” means deliberately concealing or misrepresenting one’s identity and 

conduct.338 For example, a member of the armed forces fulfills this element when the person

wears a disguise, such as civilian clothes or the uniform of the enemy, so that the enemy will fail 

to identify the person as a member of the opposing armed force.

Persons who act openly, such as by wearing the uniform of the armed forces to which 

they belong, do not meet this element.339 For example, members of a ground reconnaissance

team or couriers who wear their normal uniforms would not meet this element.340 In addition, 

observers on military reconnaissance aircraft have not been regarded as acting clandestinely or 

under false pretenses.341

4.17.2.2 In the Zone of Operations of a Belligerent. A person must engage in acts 

of espionage in the zone of operations of a belligerent to be considered a spy.342 “Zone of 

operations” has been construed broadly to include areas supporting the war effort.343 However, a 

person who engages in surveillance or information gathering from outside territory controlled by 

 338 See WINTHROP, MILITARY LAW & PRECEDENTS 767 (“The clandestine character of [the spy’s] proceedings and 

the deception thus practised constitute the gist or rather aggravation of the offence of the spy.”); 1958 UK MANUAL

¶330 (“The principal characteristic of the offence of espionage is disguise and secrecy in action.”). Consider AP I 

art. 46(3) (“A member of the armed forces of a Party to the conflict who is a resident of territory occupied by an 

adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of 

military value within that territory shall not be considered as engaging in espionage unless he does so through an act 

of false pretences or deliberately in a clandestine manner.”).

339 See HAGUE IV REG. art. 29 (“[S]oldiers not wearing a disguise who have penetrated into the zone of operations of 

the hostile army, for the purpose of obtaining information, are not considered spies.”). Consider AP I art. 46(2) (“A 

member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an 

adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so 

acting, he is in the uniform of his armed forces.”).

340 See HAGUE IV REG. art. 29 (“Soldiers and civilians, carrying out their mission openly, intrusted with the delivery 

of despatches intended either for their own army or for the enemy’s army” are not considered spies).

341 See HAGUE IV REG. art. 29 (“Persons sent in balloons for the purpose of carrying despatches and, generally, of 

maintaining communications between the different parts of an army or a territory” are not considered spies.); 

WINTHROP, MILITARY LAW & PRECEDENTS 768-69 (“[T]he mere observing of the enemy, with a view to gain 

intelligence of his movements, does not constitute [spying], for this may be done, and in active service is constantly 

done, as a legitimate act of war ... . Observing the enemy from a balloon is no more criminal than any other form of 

reconnaissance.”).

342 See, e.g., Ex Parte Quirin, 317 U.S. 1, 31 (1942) (characterizing a spy as one “who secretly and without uniform 

passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to 

the enemy”) (emphasis added).

343 See United States ex rel. Wessels v. McDonald, 265 F. 754, 763-64 (E.D.N.Y. 1920) (“In this great World War 

through which we have just passed, the field of operations which existed after the United States entered the war, 

and, especially in regard to naval operations, brought the port of New York within the field of active operations.”). 

Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat those agents of enemy armies who 

enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less 

belligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed 

Forces.”).
151

a hostile party would not meet this element, and would not be considered a spy.

4.17.2.3 Obtains, or Endeavors to Obtain, Information. A person may be 

punished as a spy regardless of whether that person succeeds in obtaining information or in 

transmitting it to the enemy.344 A person, however, must obtain or attempt to obtain information 

to be considered a spy. 

4.17.2.4 With the Intention of Communicating It to the Hostile Party. A person 

must act with the intention of communicating the sought-after information to a hostile party to 

the conflict to be considered a spy within the meaning of this rule.

However, a person who seeks to send information to a State not involved in the conflict 

may still commit acts punishable by the offended State, and that person’s conduct may fall 

within the broader category of secretive, hostile acts behind enemy lines.345

4.17.3 Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy 

Lines. In addition to spies, other persons acting clandestinely or under false pretenses with a 

hostile purpose behind enemy lines have also been treated like spies under the law of war.

Like spies, persons engaged in these secretive, hostile activities behind enemy lines have 

also been deprived of the privileges of combatant status and often been punished. For example, 

saboteurs346 acting clandestinely or under false pretenses in the zone of operations of a 

belligerent are treated as spies.347 However, activities besides sabotage that are helpful to one 

side’s war effort that are done behind the other side’s lines have been punishable as well, often 

under the rubric of “war treason,”348 “secretly entering the lines,”349 or “activities hostile to the 

 344 See LIEBER CODE art. 88 (“The spy is punishable ... whether or not he succeed in obtaining the information or in 

conveying it to the enemy.”); WINTHROP, MILITARY LAW & PRECEDENTS 768 (“The fact that [one] was ‘lurking’ or 

‘acting’ with intent to obtain material information, to be communicated by himself or another to the enemy, is all 

that is required to complete the offence.”).

345 Refer to § 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).

346 2001 CANADIAN MANUAL ¶610(1) (“Saboteurs are persons operating behind the lines of an adverse party to 

commit acts of destruction.”); GC COMMENTARY 57 (“Sabotage is harder to define, as no definition of it is given in 

any text in international law. The term ‘sabotage’ [in article 5 of the GC] should be understood to mean acts whose 

object or effect is to damage or destroy material belonging to the army of occupation or utilized by it.”).

347 2001 CANADIAN MANUAL ¶610(3) (“Civilian saboteurs or saboteurs not in uniform are not so protected [i.e., 

entitled to POW status] and are liable to be treated as spies. Such civilian saboteurs and saboteurs not in uniform 

may be tried in accordance with the law of the captor and may face the death penalty. They must not, however, be 

punished without a fair trial.”); 1958 UK MANUAL ¶331 (“Whether saboteurs, i.e., persons dropped or landed behind 

the lines of the belligerent in order to commit acts of destruction and terrorism, are to be treated as spies depends on 

whether they are caught in disguise or not. If they are disguised in civilian clothing or in the uniform of the army by 

which they are caught or that of an ally of that army, they are in the same position as spies. If caught in their own 

uniform, they are entitled to be treated as prisoners of war.”).

348 See GREENSPAN, MODERN LAW OF LAND WARFARE 330 (“The characteristic which unites all acts of war treason 

is that they are hostile acts committed inside the area controlled by the belligerent against whom the acts are directed 

by persons who do not possess the status of combatants.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW

575 (§255) (“So-called ‘war treason’ consists of all such acts (except hostilities in arms on the part of the civilian 

population, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerent 

as are harmful to him and are intended to favour the enemy.”); LIEBER CODE art. 90 (“A traitor under the law of war, 
152

security of the State.”350

These kinds of activities almost necessarily take on the character of spying.351 In many 

cases, these actions have been reported as spying.

352 However, the actual purpose of these 

activities may not be to gain or transmit intelligence information, but to take other sorts of 

actions that would further the war effort.

Thus, a belligerent’s presence on the territory controlled by an opposing State with a 

hostile purpose while clandestinely or under false pretenses, suffices to make that person liable 

to treatment as a spy under the law of war.353

4.17.4 Spying and Sabotage Permissible Under the Law of War. Under the law of war, 

 or a war-traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander, 

gives information of any kind to the enemy, or holds intercourse with him.”).

349 Ex parte Quirin, 317 U.S. 1, 31 (1942) (giving as an example of an unprivileged belligerent “an enemy combatant 

who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or 

property”); WINTHROP, MILITARY LAW & PRECEDENTS 786 (“A similar though less aggravated offence against the 

laws of war is that of officers, soldiers, or agents, of one belligerent who come secretly within the lines of the other, 

or within the territory held by his forces, for any unauthorized purpose other than that of the spy, as, for example, for 

the purpose of recruiting for their army, obtaining horses or supplies for the same, holding unlawful communication, 

&c.,--a class of offences of which instances were not unfrequent in the border States during our late civil war.”).

350 GC art. 5 (“Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected 

person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person 

shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the 

favour of such individual person, be prejudicial to the security of such State.”).

351 1958 UK MANUAL ¶331 note 1 (“A question may arise if a saboteur, being a member of the armed forces, is 

caught in civilian clothes worn over or under his military uniform. It may be difficult to accept the defence that the 

intention was to shed the civilian clothing before the commission of the offence. Sabotage operations behind the 

enemy lines are frequently carried out by members of the armed forces in uniform who, upon completion of their 

mission, make their way to the nearest neutral territory with a view to returning to their own country. If when 

engaged in sabotage or subsequent evading action they are discovered in civilian clothing worn over their uniform or 

underneath it they run the risk of being treated as spies and not merely as members of the armed forces engaged in a 

sabotage mission. ... It may well be that a sabotage mission behind the enemy lines inevitably takes on the added 

character of espionage, unless uniform is worn throughout the stay in enemy territory.”).

352 L. Oppenheim, On War Treason, 33 LAW QUARTERLY REVIEW 266 (1917) (“Thus, in 1780, during the American 

War of Independence, Major André was convicted and hanged as a spy, although he was not seeking information 

but was returning after having negotiated treason with General Arnold; it was a case of war treason. And the 

Japanese Major Shozo Jakoga and Captain Teisuki Oki, who in the summer of 1904, during the Russo-Japanese 

War, were caught, disguised in Chinese clothes, in the attempt to destroy, with the aid of dynamite, a railway bridge 

in Manchuria in the rear of the Russian forces—a clear case of war treason—would previous to the Hague 

Regulations surely have been executed as spies; in fact the case was reported in the newspapers as one of 

espionage.”).

353 Ex parte Quirin, 317 U.S. 1, 38 (1942) (“[E]ach petitioner, in circumstances which gave him the status of an 

enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and 

with hostile purpose. The offense was complete when with that purpose they entered — or, having so entered, they 

remained upon — our territory in time of war without uniform or other appropriate means of identification.”).
153

belligerents may employ spies and saboteurs.354

Spying and sabotage are not prohibited by any law of war treaty to which the United 

States is a Party. For example, spying and sabotage are not prohibited by the 1949 Geneva 

Conventions, nor defined as a “grave breach” of those conventions.355 Similarly, spying and 

sabotage also have not been listed as war crimes punishable under the statutes of international 

criminal tribunals.356 In addition, law of war treaties that regulate, but do not prohibit, spying, 

recognize implicitly that belligerents may use this method of warfare.

357

Although spying and sabotage are not prohibited by the law of war, acting clandestinely 

or under false pretenses could, in some circumstances, constitute “feigning a protected status,”

one of the elements of perfidy.358 Persons engaged in these activities and commanders who 

employ them should take special care not to kill or wound by resort to perfidy.

4.17.5 Spying and Sabotage – Forfeiture of the Privileges of Combatant Status. Although 

the law of war allows belligerents to employ spies, saboteurs, and other persons engaged in 

secretive hostile activities behind enemy lines, the law of war also permits belligerents to take 

additional measures to defend against these persons.

These individuals, by acting clandestinely or under false pretenses, fail to distinguish 

themselves as combatants generally must do.359 Thus, persons otherwise entitled to privileges of 

combatant status, including POW status, forfeit their entitlement to those privileges while 

engaged in spying, sabotage, or other hostile, secretive activities behind enemy lines.

360 

Although not explicitly reflected in the GPW, this understanding was the general understanding 

at the 1949 Diplomatic Conference361 and is reflected in other treaties,362 judicial decisions,

363

 354 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1245 (“By 

the law of war it is lawful to use spies.”); Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, 

Guerillas, and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323, 333 (1951) (noting that “espionage 

is regarded a conventional weapon of war, being neither treacherous nor productive of unnecessary suffering”).

355 Refer to § 18.9.5 (War Crimes – Notes on Terminology).

356 See, e.g., Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the 

United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the 

Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for 

the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 

288; ICTY STATUTE arts. 2-5; ICTR STATUTE arts. 2-4. Consider ROME STATUTE arts. 5-8.

357 See HAGUE IV REG. arts. 24, 29-31 (governing the classification, conduct, and treatment of spies). Consider AP I 

art. 46 (same).

358 See § 5.22.1 (Definition of Perfidy).

359 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to 

Distinguish Themselves From the Civilian Population).

360 Compare § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).

361 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 509 (noting the UK representative’s 

statement that “spies ... according to general opinion, should not have the benefits of the privileges accorded by” the 

GPW); II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representative 

explaining that “Saboteurs could not of course claim protection under the Prisoners of War Convention; they should 

nevertheless be protected against criminal treatment and torture.”).
154

military manuals,364 and scholarly works.365

4.17.5.1 Liability of Persons Not Captured While Spying for Previous Acts of 

Espionage. Persons who qualify for the privileges of combatant status who engage in spying, 

and then return to friendly lines, incur no responsibility or liability for previous acts of 

espionage.

366 Persons who have never qualified for the privileges of combatant status would not 

 362 See HAGUE IV REG. art. 31 (impliedly contrasting the position of a spy captured while spying with a “spy who, 

after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, 

and incurs no responsibility for his previous acts of espionage.”). Consider AP I art. 46 (1) (“Notwithstanding any 

other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict 

who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of 

prisoner of war and may be treated as a spy.”); AP I art. 44(4) (“A combatant who falls into the power of an adverse 

Party while failing to meet the requirements set forth in the second sentence of paragraph 3 [certain obligations to 

distinguish himself during military engagements] shall forfeit his right to be a prisoner of war, but he shall, 

nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third 

Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of 

war by the Third Convention in the case where such a person is tried and punished for any offences he has 

committed.”).

363 See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as “familiar examples of belligerents who are 

generally deemed not to be entitled to the status of prisoners of war”); Mohamad Ali and Another v. Public 

Prosecutor [1969] A.C. 430 (P.C.) (appeal taken from U.K.), LEVIE, DOCUMENTS ON POWS 766 (“[A]ppellants, if 

they were members of the Indonesian armed forces, were not entitled to be treated on capture as prisoners of war 

under the Geneva Convention when they had landed to commit sabotage and had been dressed in civilian clothes 

both when they had placed the explosives and lit them and when they were arrested.”).

364 2001 CANADIAN MANUAL ¶320(1) (“Generally speaking, persons engaging in espionage may be attacked and if 

captured while doing so shall NOT have the right to the status of prisoner of war.”); 1992 GERMAN MANUAL ¶321

(“Even if they are members of their armed forces, they do not have the right to the status of prisoner of war.”); 1958 

UK MANUAL ¶96 (noting that “regular members of the armed forces who are caught as spies are not entitled to be 

treated as prisoners of war”); 1956 FM 27-10 (Change No. 1 1976) ¶74 (“Members of the armed forces of a party to 

the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be

treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines 

of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of 

life or property.”).

365 LEVIE, POWS 82-83 (noting that “[e]ven individuals who fall within the categories specifically enumerated in 

Article 4 are not entitled to prisoner-of-war status if, at the time of capture by the enemy, they were dressed in 

civilian clothes and were engaged in an espionage or sabotage mission behind enemy lines”); WINTHROP, MILITARY 

LAW & PRECEDENTS 769 (“A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to be 

tried and punished as such.”).

366 See HAGUE IV REG. art. 31 (“A spy who, after rejoining the army to which he belongs, is subsequently captured 

by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”); 

LIEBER CODE art. 104 (explaining that “[a] successful spy or war-traitor, safely returned to his own army, and 

afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor”); Rieger, Dalloz 

Hebdomadaire (France, Cour de Cassation, Jul. 29, 1948), summarized in 44 AJIL 422 (1950) (“The court sustained 

the acquittal of a German national who, after mobilization as a German army officer, had been in France a spy and a 

recruiter of spies, but had not been apprehended until after he had rejoined the German Army and been demobilized 

in Germany.”); In re Martin, 45 BARB. 142, 148 (New York County Supreme Court, Dec. 4, 1865) (Court directed 

the release of a prisoner who “was not taken in the act of committing the offense charged against him, of being a 

spy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was not 

arrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promise 

that they should not be further disturbed if they remained there and engaged in peaceful pursuits.”). Consider AP I 

arts. 46(3), 46(4) (referring to persons who “engage in espionage in [the] territory” of a hostile party, and noting that 

a person “may not be treated as a spy unless he is captured while engaging in espionage”).
155

benefit from this rule because they cannot regain a status that they did not receive in the first 

place.367

4.17.5.2 Cases of Doubt. During international armed conflict, should there be any 

doubt as to whether persons suspected of committing a belligerent act and having fallen into the 

hands of the enemy are entitled to POW status, such persons are entitled to have their status 

determined by a competent tribunal and should be treated as POWs pending that 

determination.

368

4.18 PRIVATE PERSONS WHO ENGAGE IN HOSTILITIES

In general, private persons who engage in hostilities forfeit many of the protections to 

which members of the civilian population are entitled, and are liable to treatment in one or more 

respects as unprivileged belligerents.369

4.18.1 Private Persons Who Engage in Hostilities – Notes on Terminology. This section 

refers to “private persons” who engage in hostilities rather than “civilians” who engage in 

hostilities for three reasons. First, an emphasis on “private” persons is consistent with 

longstanding explanations of the principle of distinction.370 Second, it may be analytically 

unhelpful to focus on “civilians” because private persons who engage in hostilities are liable to 

treatment in one or more respects as combatants. Third, non-military personnel belonging to a 

State (e.g., persons authorized to accompany the armed forces), who are often called “civilians,”

raise a different set of issues that merit special consideration as opposed to the general case of a 

private person who decides to engage in hostilities.

For the purpose of applying different law of war rules, different formulations have been 

used to describe when a person has engaged in hostilities. Although these phrases often refer to 

the same conduct, the context in which each term is applied is important; whether a phrase 

includes a particular type of conduct may depend on the particular legal rule in question. 

Whether a particular person is liable as a consequence of his or her conduct to treatment as a 

combatant (e.g., being made the object of attack, internment, or prosecution for acts of 

unprivileged belligerency) must be assessed with reference to the specific legal rule at issue

rather than based on the use of a conclusory label, such as “enemy combatant.”371

 367 See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 424-25 (§161) (“But Article 31 applies only to spies 

who belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished.”). 

Cf. HAGUE IV REG. art. 31 (referring only to a spy who rejoins “the army to which he belongs” in connection with 

protection against subsequent prosecution).

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

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

370 See, e.g., LIEBER CODE arts. 22 and 23 (“Nevertheless, as civilization has advanced during the last centuries, so 

has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to 

a hostile country and the hostile country itself, with its men in arms. ... Private citizens are no longer murdered, 

enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as 

the commander of the hostile troops can afford to grant In the overruling demands of a vigorous war.”).

371 See Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the American 

Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010 DIGEST OF 
156

This manual generally uses the phrase “engaging in hostilities” in a broad sense to refer 

to any of those actions that could cause a person to forfeit one or more protections under the law 

of war. When discussing specific legal rules, on the other hand, this manual uses the particular 

language of the rule at issue, rather than the phrase “engaging in hostilities.” For example, this 

manual generally reserves the use of the phrase “taking a direct part in hostilities” to address the 

rule applicable when a civilian forfeits his or her protection from being made the object of 

attack.372

4.18.2 Private Persons Who Engage in Hostilities – Denial of the Distinct Protections 

Afforded Peaceful Civilians. Private persons who engage in hostilities forfeit many of the 

protections afforded civilians under the law of war.373 The principle of military necessity can 

justify taking military action (such as detention) to address the threat posed by such persons.

374 

The forfeiture of many of the protections of civilian status is also reflected in the principle that a 

person may not claim the distinct rights of both combatants and civilians at the same time.375

4.18.3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant 

Status. Private persons who engage in hostilities are not entitled to the privileges of combatant 

status and may be punished, after a fair trial.

376 The law of war does not condone the “farmer by 

 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 749 (“Some commentators have criticized our decision to detain 

certain individuals based on their membership in a non-state armed group. But as those of you who follow the 

Guantánamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text, 

structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various 

judges who have considered these arguments have taken issue with certain points, they have accepted the overall 

proposition that individuals who are part of an organized armed group like Al Qaeda can be subject to law-of-war 

detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory 

labels, like ‘enemy combatant,’ but on whether the factual record in the particular case meets the legal standard.”).

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

373 See Joint Chiefs of Staff, Joint Pub. 3-60, Joint Doctrine for Targeting, A-2 (Jan. 17, 2002) (“The protection 

offered civilians carries a strict obligation on the part of civilians not to participate directly in armed combat, 

become combatants, or engage in acts of war. Civilians engaging in fighting or otherwise participating in combat 

operations, singularly or as a group, become unlawful combatants and lose their protected civilian status.”); 1992

GERMAN MANUAL ¶517 (“Persons taking a direct part in hostilities are not entitled to claim the rights accorded to 

civilians by international humanitarian law (Art. 51 para 3 AP I; Art. 13 para 3 AP II). The same applies if they are 

they are definitely suspected of activities hostile to the security of the State (Art. 5 para 1 GC IV).”); 1956 FM 27-10 

(Change No. 1 1976) ¶60 (“Persons who are not members of the armed forces, as defined in Article 4, GPW, who 

bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges 

attaching to the members of the civilian population (see sec. II of this chapter).”).

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

375 Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the 

Same Time).

376 See 1958 UK MANUAL ¶88 (If civilian inhabitants “commit or attempt to commit hostile acts, they are liable to 

punishment, after a proper trial.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 206 (§57) (“According to a 

generally recognised customary rule of International Law, hostile acts on the part of private individuals, not 

organised as compact movements operating under responsible authority, are not acts of legitimate wafare, and the 

offenders may be punished in accordance with International Law.”); United States v. List, et al., XI TRIALS OF WAR 

CRIMINALS BEFORE THE NMT 1246 (“[T]he rule is established that a civilian who aids, abets, or participates in the 

fighting is liable to punishment as a war criminal under the laws of war.”); LIEBER CODE art. 82 (“Men, or squads of 

men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, 

without commission, without being part and portion of the organized hostile army, and without sharing continuously 
157

day and guerilla by night.”377

The denial of the privileges of combatant status to private persons engaging in hostilities 

may be justified on the basis that such persons act inconsistently with the jus ad bellum principle 

of competent authority, under which the resort to armed force is a prerogative of the State.378

These individuals lack the principal qualification for entitlement to the privileges of combatant 

status—State authorization.379 This requirement for State authorization has been traced to 

medieval law of arms.380

Denying private persons who engage in hostilities the privileges of combatant status has 

also been viewed as justified on humanitarian grounds. Private persons who engage in hostilities 

risk undermining the protections afforded the civilian population.381 And, private persons who 

 

in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption 

of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers -- such men, 

or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of 

war”).

377 BOTHE, PARTSCH, & SOLF, NEW RULES 252 (AP I art. 44, ¶2.7.1) (“[T]he pre-existing rule [i.e., prior to AP I] 

precluded combatant status and PW status for the persons who engaged in civilian pursuits during the day but fought 

as a guerilla by night.”); SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: 

Report of the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun. 

27, 1955) (“In sum, extension of protection to “partisans” [in the GPW] does not embrace that type of partisan who 

performs the role of farmer by day, guerilla by night. Such individuals remain subject to trial and punishment as 

unlawful belligerents.”); THEODORE WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 216 (§134) 

(1897) (explaining that “[g]uerilla parties [i.e., armed groups not called out by public authority], however, do not 

enjoy the full benefit of the laws of war” and instead “are apt to fare worse than either regular troops or an unarmed 

peasantry” because, inter alia, “they put on and off with ease the character of a soldier”).

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

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

380 G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OF 

INTERNATIONAL LAW 173, 175 (1971) (“With the break-up of Christendom the medieval law of arms took shape as 

the embryonic international law of war. The older idea of knights, men-at-arms and mercenaries ‘avowed’ by a 

prince changed to that of armed forces in the service of a territorial, secular state. However, many of the ideas and 

technical rules of the jus militare came through into the new international law of war, including the idea of a right or 

privilege to fight reserved for military classes and the requirement of a certain ‘openness’ in the manner of fighting. 

This ‘openness’ spells out the older idea of a ‘public’ war and the rejection of perfidy as abhorrent to the knightly 

classes. Conversely, those who had not the right to fight met short shrift at the hands of those who had. The 

marauder and the freebooter acted against, and were outside, ‘faith and the law of nations’ and were early forms of 

war criminals.”). See also M. H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 246 (1965) (The medieval 

law of arms “was a formal and generally accepted law, and its currency helped to establish” the principle that “war, 

in its proper sense could only be waged by sovereigns.”).

381 GREENSPAN, MODERN LAW OF LAND WARFARE 55 (“If any and every citizen capable of bearing arms is entitled 

to use them then the distinction between the soldier and the remainder of the population disappears. The result 

could only expose the civilian element, regardless of sex, to massacre. The enemy soldier, unable to distinguish his 

foe, aware that any man, woman, boy, or girl in civilian clothes might produce at any moment a concealed weapon 

to be used against him, would inevitably be disposed to treat soldier and civilian alike, indiscriminately.”); Raymund 

T. Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 402 (1953) (“While the 

conditions imposed by the convention for treatment as prisoners of war of members of resistance movements would 

not have covered many persons acting as ‘partisans’ during World War II, nevertheless, it is believed that such 

conditions are the minimum necessary if regular forces are to have any protection against attacks by the civilian 

population and if any distinction is to be made between combatants and noncombatants. The farmer by day, 
158

engage in hostilities generally have not been trained in the law of war and are not subject to the 

same disciplinary regime as members of the armed forces.382 Thus, their participation in 

hostilities has been associated with the commission of war crimes.

383

4.18.4 Activities That Constitute “Engaging in Hostilities” by Private Persons. Certain 

activities constitute “engaging in hostilities,” i.e., when done by private persons, make them 

liable to treatment in one or more respects by the enemy State as unprivileged belligerents.

4.18.4.1 Being Part of a Hostile, Non-State Armed Group. Being part of a nonState armed group that is engaged in hostilities against a State is a form of engaging in hostilities 

that makes private persons liable to treatment in one or more respects as unprivileged 

belligerents by that State.

384 Being part of a non-State armed group may involve formally 

joining the group or simply participating sufficiently in its activities to be deemed part of it.

Whether a person has joined a non-State armed group may be a difficult factual question. 

Non-State armed groups may not use formal indicia of membership (e.g., uniforms or identity 

cards), or members of these groups may seek to conceal their association with the group.

385 It 

may be appropriate to use circumstantial or functional information to assess whether a person is 

part of a non-State armed group.

386

 assassin by night, type of ‘partisan’ cannot be condoned by international law, whatever other justification 

circumstances may give him.”). Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance), 

footnote 164 and accompanying text.

382 Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

383 See, e.g., CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED BY THE 

UNITED STATES 296 (1922) (“The law of nations, apart from the Hague Regulations above noted, denies belligerent 

qualifications to guerrilla bands. Such forces wage a warfare which is irregular in point of origin and authority, of 

discipline, of purpose and of procedure. They may be constituted at the beck of a single individual; they lack 

uniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slight 

quarter.”); Wharton, Com. Am. Law, § 221, VII MOORE’S DIGEST 175 (“If war were to be waged by private parties, 

operating according to the whims of individual leaders, every place that was seized would be sacked and outraged; 

and war would be the pretence to satiate private greed and spite.”).

384 See, e.g., In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention 

Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 5-6 (D.D.C., Mar. 13, 2009) (“Because 

the use of force includes the power of detention, the United States has the authority to detain those who were part of 

al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize 

that members of enemy forces can be detained even if ‘they have not actually committed or attempted to commit any 

act of depredation or entered the theatre or zone of active military operations.’ Accordingly, under the AUMF as 

informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the 

principal organizations that fall within the AUMF’s authorization of force.”) (internal citations omitted); Hamdan v. 

Rumsfeld, 548 U.S. 557, 693 (2006) (Thomas, J., dissenting) (“For well over a century it has been established that to 

unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of 

war; the offence is complete when the band is organized or joined.”) (internal emphasis and quotations omitted).

385 Refer to § 17.5.1.1 (Increased Difficulty in Identifying Enemy Forces and Other Military Objectives).

386 See, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (“Although it is clear al Qaeda has, or at least 

at one time had, a particular organizational structure, ... , the details of its structure are generally unknown, ... , but 

it is thought to be somewhat amorphous, ... . As a result, it is impossible to provide an exhaustive list of criteria for 

determining whether an individual is ‘part of’ al Qaeda. That determination must be made on a case-by-case basis 
159

In addition, non-State armed groups may also rely on individuals who are not members of 

the groups, but who are functionally part of those organizations. Their support might be 

particularly important to enable the non-State armed group to conduct and sustain its 

operations.387 For example, these individuals might participate sufficiently in the activities of 

the group or support its operations substantially in a way that is analogous to the support that 

persons authorized to accompany the armed forces provide to the armed forces.388 These 

individuals may be regarded as constructively part of the group, even if they are, in fact, not 

formal members of the group.

389 

4.18.4.2 Other Hostile Acts. In addition to being part of or substantially 

supporting a hostile, non-State armed group, other hostile acts can make a person liable to 

treatment in one or more respects as an unprivileged belligerent under the law of war. For 

example, private persons who bear arms against enemy personnel or who attempt to kill or injure 

enemy personnel would become liable to being made the object of attack.

390 Performing spying, 

sabotage, and other hostile activities behind enemy lines would render a person liable to 

prosecution for such conduct.

391

4.18.5 Private Persons Who Engage in Hostilities and the Law of War. As in the cases of

spying and sabotage, under international law private enemy nationals are not generally regarded 

as being prohibited from engaging in hostilities during international armed conflict. 

International law does recognize, however, that opposing States may punish such persons.392 

 

by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to 

the organization.”) (internal citations omitted).

387 Refer to § 17.5.1.2 (Different Support Structures for Non-State Armed Groups).

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

389 Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11-12 (2d Cir. Dec. 20, 2012) (“More 

generally, ‘substantial support’ encompasses individuals who, even if not considered part of the irregular enemy 

forces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support that 

warrants their detention consistent with the law of war. The substantial support concept, as properly informed by 

the law of war, would include people whose support for al-Qaeda or the Taliban makes them analogous to those who 

‘accompany the armed forces without actually being members thereof, such as civilian members of military aircraft 

crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of 

the armed forces.’ Such substantial supporters are, in short, ‘more or less part of the armed force’ and subject to 

law-of-war detention for the duration of the conflict.”) (internal citations omitted).

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

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

392 See GREENSPAN, MODERN LAW OF LAND WARFARE 61 (“Guerillas who do not comply with the provisions laid 

down [of GPW art. 4(A)(2)] may perform patriotic service for their country (just as espionage agents often do), yet 

such illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be prepared 

to take their punishment if captured.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR 

CRIMINALS BEFORE THE NMT 1245 (“Just as the spy may act lawfully for his country and at the same time be a war

criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become 

heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such.”); HERBERT C.

FOOKS, PRISONERS OF WAR 40 (1924) (“Individuals who undertake to wage a war in their private capacity are not 

entitled to the treatment of prisoners of war. The enemy may punish them when captured as war criminals. The 

safety of the troops compels the enemy to punish such hostilities as acts of illegitimate warfare, and international 

law gives the right to do so. Nations do not prohibit its citizens from such acts, however, for they may be most 

helpful to it just as spying is helpful.”).
160

Nonetheless, like other forms of unprivileged belligerency, private engagement in hostilities has 

been described in some contexts as a “war crime” or as a violation of international law or the law 

of war.393

In discussions of the status of private acts of hostility under international law, the point is 

often made that international law does not require States to prevent what they may regard as acts 

of patriotism and heroism.394 

However, outside the context of patriotic acts of resistance by persons in international 

armed conflict, private acts of hostility often carry additional sanction under international law. 

For example, persons who set off in private military expeditions against a foreign State from a 

State that has peaceful relations with the foreign State, have been subject to punishment under 

the law of nations.395 Similarly, private acts of hostility, under certain conditions, may be 

regarded as piracy.396 In contemporary parlance, private acts of hostility are often punished as 

“terrorism.”397 The unauthorized use of violence by private persons to achieve political ends has 

been viewed as contrary to the principles of democratic States.398 Moreover, States have 

obligations under international law to repress terrorism, especially when conducted on their 

territory against other States.399

4.19 RIGHTS, DUTIES, AND LIABILITIES OF UNPRIVILEGED BELLIGERENTS

Unprivileged belligerents have certain rights, duties, and liabilities. In general, 

 393 See, e.g., James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY 

GENERAL 297, 314 (1869) (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, 

may be tried, condemned, and executed as offenders against the laws of war.”).

394 Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR 

BOOK OF INTERNATIONAL LAW 323, 342 (1951) (“In both occupied and unoccupied areas, resistance activities, 

guerrilla warfare, and sabotage by private persons may be expected to continue on at least as widespread a basis in 

future warfare as they have in the past. More often than not, patriotism or some sort of political allegiance lies at the 

root of such activities. Consequently the law of nations has not ventured to require of states that they prevent the 

belligerent activities of their citizenry or that they refrain from the use of secret agents or that these activities upon 

the part of their military forces or civilian population be punished.”).

395 Refer to § 15.1.5 (Domestic Neutrality Laws).

396 Refer to § 13.3.3.1 (Entitlement of Vessels to Conduct Attacks During Non-International Armed Conflict).

397 See, e.g., R. v. Khawaja, (Supreme Court of Canada, Dec. 14, 2012) (upholding the terrorism conviction of a 

defendant who provided support to terrorist groups in Afghanistan and rejecting his argument that his support for 

terrorist groups could not be punished because they were part of an armed conflict governed by international law).

398 Public Prosecutor v. Folkerts, (The Netherlands, District Court of Utrecht, Dec. 20, 1977), reprinted in 74 

INTERNATIONAL LAW REPORTS 695, 698 (1987) (“It is totally unacceptable in democratic countries such as those 

just mentioned [the United States and the Federal Republic of Germany], and also in the Netherlands, for individuals 

who disagree with their country’s policy, for that reason to resort to acts of violence such as those which took place 

here. Such acts attack the most fundamental principles of the constitutional State.”).

399 See, e.g., U.N. SECURITY COUNCIL RESOLUTION 1373, U.N. Doc. S/RES/1373 (2001) (deciding that all States 

shall, inter alia, “[e]nsure that any person who participates in the financing, planning, preparation or perpetration of 

terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures 

against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and 

that the punishment duly reflects the seriousness of such terrorist acts;”).
161

unprivileged belligerents lack the distinct privileges afforded to combatants and civilians, and are 

subject to the liabilities of both classes. Unprivileged belligerents generally may be made the 

object of attack by enemy combatants. They, however, must be afforded fundamental guarantees 

of humane treatment if hors de combat. Unprivileged belligerents may be punished by enemy 

States for their engagement in hostilities if they are convicted after a fair trial.

4.19.1 Rules Applicable to the Treatment of Unprivileged Belligerents. Although 

unprivileged belligerents have not been recognized and protected in treaty law to the same extent 

as peaceful civilians and lawful combatants,400 basic guarantees of humane treatment in 

customary international law (i.e., elementary considerations of humanity) protect unprivileged 

belligerents.401 Moreover, some treaty protections apply to certain unprivileged belligerents.402

In some cases, U.S. practice has, as a matter of domestic law or policy, afforded

unprivileged belligerents more favorable treatment than they would be entitled to receive under 

international law.403 Nonetheless, U.S. practice has also recognized that unprivileged 

belligerents should not be afforded the distinct privileges afforded lawful combatants and the 

protections afforded peaceful civilians under the law of war.404

4.19.2 Unprivileged Belligerents – Conduct of Hostilities. Although unprivileged 

belligerents lack the right to engage in hostilities, international law nevertheless requires that 

they observe the same duties as lawful combatants during their conduct of hostilities.405

In addition, unprivileged belligerents are generally subject to the same liabilities to which 

combatants are subject in the conduct of hostilities; i.e., they may be made the object of attack by 

enemy combatants. Unprivileged belligerents placed hors de combat, however, may not be made 

the object of attack, and must be treated humanely.

4.19.3 Unprivileged Belligerents – Detention. Unprivileged belligerents are liable to 

capture and detention, like lawful combatants. 

4.19.3.1 Humane Treatment. Although unprivileged belligerents are not entitled 

to the privileges of POW status, unprivileged belligerents, like all other detained persons, must 

be treated humanely. In particular, they, like all other detainees, must receive, at a minimum, the 

 400 Refer to § 4.3.1 (“Unprivileged Belligerents” as a Category in Treaty Law).

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

402 See, e.g., GPW art. 3; GC art. 5.

403 See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (affording the constitutional privilege of habeas corpus to 

aliens detained as unprivileged belligerents at Guantanamo); U.S. MILITARY ASSISTANCE COMMAND VIETNAM 

DIRECTIVE 381-46, Military Intelligence: Combined Screening of Detainees Annex A ¶4.a.(2)-(3) (Dec. 27, 1967), 

reprinted in 62 AJIL 766-67 (classifying as POWs members of certain categories of guerilla or insurgent units 

provided that they were not engaged in acts of terrorism, sabotage, or spying while captured).

404 Refer to, e.g., § 4.6.1.2 (AP I and the GPW 4A(2) Conditions); FRANCIS LIEBER, GUERRILLA PARTIES 

CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 22 (1862) (“no army, no society, engaged in war, 

any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepest 

injury to itself and disastrous consequences, which might change the very issue of the war.”).

405 Refer to § 4.4.1 (Combatants – Conduct of Hostilities).
162

fundamental guarantees of humane treatment described in Common Article 3 of the 1949 

Geneva Conventions.406 In addition, the United States has explicitly supported, out of a sense of 

legal obligation, the fundamental guarantees reflected in Article 75 of AP I as minimum 

standards for the humane treatment of all persons detained during international armed conflict.

407

4.19.3.2 Cases of Doubt. During international armed conflict, in cases of doubt as 

to whether a person held as an unprivileged belligerent is, in fact, a POW or entitled to POW 

treatment, that person should enjoy POW protections until their status is assessed by a competent 

tribunal.

408

4.19.3.3 Necessary Security Measures. A State may take necessary security 

measures with regard to unprivileged belligerents. 

Since they have engaged in hostilities, unprivileged belligerents, or persons suspected of 

being unprivileged belligerents, may be denied certain privileges to which they might otherwise 

be entitled under the law of war. For example, the rights of unprivileged belligerents who are 

entitled to “protected person” status under the GC would be subject to derogation for security 

reasons.

409 However, unprivileged belligerents who are protected by the GC should be afforded 

its full protections when feasible.410

4.19.3.4 Duration of Detention. Unprivileged belligerents who are detained in 

order to prevent their further participation in hostilities generally must be released when 

hostilities have ended, unless there is another legal basis for their detention.

411 DoD practice has 

been to review periodically the detention of all persons not afforded POW status or treatment.412

4.19.4 Unprivileged Belligerents – Liability for Participation in Hostilities. Although 

international law affords lawful combatants a privilege or immunity from prosecution,413

unprivileged belligerents lack such protection.414 A State may punish unprivileged enemy 

belligerents,

415 subject to applicable requirements, such as a fair trial.416

 406 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

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

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

409 Refer to § 10.4 (Derogation for Security Reasons).

410 Refer to § 10.4.4 (Limits on Derogation).

411 Refer to § 8.14.3.1 (Participants in Hostilities or Persons Belonging to Armed Groups That Are Engaged in 

Hostilities).

412 Refer to § 8.14.2 (Review of Continued Detention for Security Reasons).

413 Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

414 Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status); § 4.18.3 (Private 

Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

415 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶73 (“The foregoing provisions [of article 5 of the GC] impliedly 

recognize the power of a Party to the conflict to impose the death penalty and lesser punishments on spies, 

saboteurs, and other persons not entitled to be treated as prisoners of war, except to the extent that that power has 
163

4.19.4.1 Unprivileged Belligerency and the Law of War – Notes on Terminology. 

In contemporary parlance, spying and other forms of unprivileged belligerency generally have

not been referred to as “violations of the law of war” or “war crimes.”417 For example, spying is 

permissible under the law of war in the sense that belligerents are not prohibited from employing 

spies; these activities are punishable but not prohibited under international law.

418

However, in some cases, offenses related to unprivileged belligerency have been 

characterized as violations of the law of war.419 For example, spying has been called a violation 

of the law of war or “war crime.”420 Spying and other acts of unprivileged belligerency have 

been called offenses against the law of nations or law of war – the punishment of these offenders 

has been viewed as a recognized incident or exercise of a belligerent’s war powers under the law 

of war.

421

The difference in these characterizations may be traced to different definitions of “war 

crime” that have been used over time. The difference in these characterizations may also be 

traced to different definitions of the “law of war.” If one views the law of war as only containing 

 

been limited or taken away by Article 68, GC (par. 438).”); LIEBER CODE art. 88 (“The spy is punishable with death 

by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.”).

416 See HAGUE IV REG. art. 30 (“A spy taken in the act shall not be punished without previous trial.”).

417 Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR 

BOOK OF INTERNATIONAL LAW 323, 324 (1951) (“The correct legal formulation is, it is submitted, that armed and 

unarmed hostilities, wherever occurring, committed by persons other than those entitled to be treated as prisoners of 

war or peaceful civilians merely deprive such individuals of a protection they might otherwise enjoy under 

international law and place them virtually at the power of the enemy. ‘Unlawful belligerency’ is actually 

‘unprivileged belligerency’.”).

418 Refer to § 4.17.4 (Spying and Sabotage Permissible Under the Law of War).

419 See, e.g., 10 U.S.C. § 950t (27) (defining the offense of spying as “in violation of the law of war”); G.I.A.D. 

Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OF 

INTERNATIONAL LAW 173, 173, 176 (1971) (“On balance, the theory that illicit combatants may be killed after 

capture, as an act of warfare, subject to any restraint imposed by the law of war, is somewhat artificial. There may 

be some substance in the contention, and it may be more consonant with the war practices of belligerents, the 

official manuals on the law of war issued by States, and the decisions of national tribunals applying the law of war, 

that illegal participation in combat is a violation of the law of war exposing the offender to loss of immunity from 

attack, and, upon capture, to trial and punishment upon conviction. However, the matter is controversial, and there 

are certain passages in the classical writers on the law of war, such as Grotius, which lend support to the theory of

‘unprivileged belligerency’.”).

420 See, e.g., U.N. SECRETARY-GENERAL, Historical Survey of the Question of International Criminal Jurisdiction, 

U.N. Doc. A/CN.4/7/Rev.1, 1 (1949) (“During the greater part of modern history customary law has also recognized

so-called war crimes of various description. Perfidy, particularly that type of perfidy which is described as 

espionage, is the oldest example of such a war crime.”); Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as 

“offenders against the law of war subject to trial and punishment by military tribunals.”); WINTHROP, MILITARY 

LAW & PRECEDENTS 770 (“Under the law of nations and of war, [a spy’s] offence is an exclusively military one, 

cognizable only by military tribunals.”); G. SHERSTON BAKER, I HALLECK’S INTERNATIONAL LAW 628-29 (18.20) 

(1908) (“the act of spying is an offence against the laws of war alone”); James Speed, Attorney General, Military 

Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL 297, 312-13 (1869) (“to act as spy is an offence 

against the laws of war, ... every lawyer knows that a spy was a well-known offender under the laws of war,”).

421 Ex parte Quirin, 317 U.S. 1, 28 (1942) (holding that the trial and punishment of enemy saboteurs by military 

commission was an “important incident to the conduct of war”).
164

prohibitions, the punishment of unprivileged belligerents, like all exercises of the war powers, 

emanates from the domestic law of the belligerent State.

422 On the other hand, if one views the 

law of war as also including sources of authority, the punishment of unprivileged belligerents is 

also grounded in the international law of war.

423

Although the relationship between unprivileged belligerency and the law of war has been 

characterized in different ways, it is well-accepted that States may punish unprivileged enemy 

belligerents after a fair trial.

4.20 CHILDREN

The GC provides special protection for children in order to protect them against the 

dangers of war. In addition, certain provisions of treaties and U.S. law seek to restrict the use or 

recruitment of children in armed conflict.

4.20.1 Specific Protections for All Children During International Armed Conflict. 

4.20.1.1 Children Under Fifteen Who Are Orphaned or Separated. The parties to 

the conflict shall take the necessary measures to ensure that children under fifteen, who are 

orphaned or are separated from their families as a result of the war, are not left to their own 

resources, and that their maintenance, the exercise of their religion, and their education are 

facilitated in all circumstances.424 The maintenance of the children concerned means their 

feeding, clothing, and accommodation, care for their health, and, where necessary, medical and 

hospital treatment.425

Their education shall, as far as possible, be entrusted to persons of a similar cultural 

tradition.426 This provision is intended to exclude inappropriate religious or political propaganda 

designed to influence them.

427

The parties to the conflict shall facilitate the reception of such children in a neutral 

country for the duration of the conflict with the consent of the Protecting Power, if any, and 

under due safeguards for the observance of the principles stated in the first paragraph of Article 

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

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

424 GC art. 24 (“The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, 

who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and 

that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.”).

425 GC COMMENTARY 187 (“The maintenance of the children concerned means their feeding, clothing, and 

accommodation, care for their health and, where necessary medical and hospital treatment.”).

426 GC art. 24 (“Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.”).

427 GC COMMENTARY 187 (“That provision is most important. It is intended to exclude any religious or political 

propaganda designed to wean children from their natural milieu; for that would cause additional suffering to human 

beings already grievously stricken by the loss of their parents.”).
165

24 of the GC.428

4.20.1.2 Identification for Children Under Twelve. The parties to the conflict 

shall endeavor to arrange for all children under twelve to be identified by the wearing of identity 

discs, or by some other means.429 The age of twelve was chosen because it was considered that 

children over twelve are generally capable of stating their own identity.430

4.20.2 Protection for Alien Children in a Belligerent’s Home Territory. In a belligerent’s 

home territory, the GC provides that certain aliens (i.e., those qualifying for protected person 

status under the GC) who are children under fifteen years, pregnant women, and mothers of 

children under seven years shall benefit from any preferential treatment to the same extent as the 

nationals of the State concerned.

431

4.20.3 Protection for Children in Occupied Territory. Provisions of the GC address the 

protection of children in occupied territory.432

4.20.4 Protection for Children in the Context of Internment Under the GC. The GC 

provides certain protections for children in the context of internment. Provisions of the GC 

address: 

• the internment of children with their parents;433

• special treatment for children during internment, including

o ensuring the education of children and young people, including school 

attendance,434

o additional food for children under fifteen in proportion to their physiological 

needs,

435 and

 428 GC art. 24 (“The Parties to the conflict shall facilitate the reception of such children in a neutral country for the 

duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the 

observance of the principles stated in the first paragraph.”).

429 GC art. 24 (“They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the 

wearing of identity discs, or by some other means.”).

430 GC COMMENTARY 189 (“It will be noticed that the age limit here is twelve, whereas in the first two paragraphs it 

was fifteen years of age: this is in accordance with a recommendation made at the XVIIth International Red Cross 

Conference in Stockholm, where it was considered that children over twelve were generally capable of stating their 

own identity.”).

431 Refer to § 10.7.1 (Regulation of the Situation of Protected Persons, in Principle, by Provisions Applicable to 

Aliens in Time of Peace).

432 Refer to § 11.13 (Protection of Children in Occupied Territory).

433 Refer to § 10.10.3 (Families Kept Together).

434 Refer to § 10.16.2 (Education).

435 Refer to § 10.13.1.2 (Additional Food for Certain Groups).
166

o special playgrounds reserved for children and young people;

436 and

• special agreements for the release, the repatriation, the return to places of residence, or 

the accommodation in a neutral country of, among others, children, pregnant women, and 

mothers with infants and young children.437

4.20.5 Child Soldiers. Certain provisions of treaties and U.S. law seek to restrict the use 

or recruitment of children in armed conflict. If children are nonetheless employed in armed 

conflict, they generally are treated on the same basis as adults, although children may be subject 

to special treatment in detention because of their age.

Prohibitions on the use or recruitment of children also apply in non-international armed 

conflict.438

4.20.5.1 U.S. Offense of Recruiting or Using Child Soldiers. U.S. law makes it a 

crime, under certain circumstances, to recruit, enlist, or conscript a person to serve in an armed 

force or group, while such person is under 15 years of age.439 U.S. law also makes it a crime to 

use a person under 15 years of age to participate actively in hostilities.440 These restrictions in 

U.S. law are similar to provisions in treaties to which the United States is not a Party.441

4.20.5.2 Child Soldiers Protocol. As a Party to the Optional Protocol to the 

Convention on the Rights of the Child on the involvement of children in armed conflict,

442 the 

United States must “take all feasible measures to ensure that members of [its] armed forces who 

 436 Refer to § 10.16.3 (Opportunities for Physical Exercise, Sports, and Outdoor Games).

437 Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain 

Classes of Internees).

438 Refer to § 17.10.2 (Children and Participation in Non-International Armed Conflict).

439 18 U.S.C. § 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly— (1) recruits, 

enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; ... 

knowing such person is under 15 years of age”).

440 18 U.S.C. § 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly ... (2) uses a 

person under 15 years of age to participate actively in hostilities; knowing such person is under 15 years of age”).

441 Consider AP I art. 77(2) (“The Parties to the conflict shall take all feasible measures in order that children who 

have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain 

from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen 

years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority 

to those who are oldest.”); Convention on the Rights of the Child, art. 38(2)-(3), Feb. 16, 1995, 1577 UNTS 3, 56 

(providing that “States Parties shall take all feasible measures to ensure that persons who have not attained the age 

of fifteen years do not take a direct part in hostilities” and that “States Parties shall refrain from recruiting any 

person who has not attained the age of fifteen years into their armed forces”); ROME STATUTE art. 8(2)(b)(xxvi) 

(defining ‘war crime’ to include “[c]onscripting or enlisting children under the age of fifteen years into the national 

armed forces or using them to participate actively in hostilities” in international armed conflict).

442 2201 UNTS 311 (“RATIFICATION (WITH DECLARATION AND UNDERSTANDINGS) United States of America Deposit 

of instrument with the Secretary-General of the United Nations: 23 December 2002”).
167

have not attained the age of 18 years do not take a direct part in hostilities.”443 The United States 

made a statement of understanding regarding the meaning of the phrase “direct part in hostilities”

in the Child Soldiers Protocol.444 

As a Party to the Child Soldiers Protocol, the United States also has an obligation to 

ensure that persons who have not attained the age of 18 years are not compulsorily recruited into 

its armed forces.445 In a declaration deposited pursuant to Article 3(2) of the Child Soldiers 

Protocol,

446 the United States described its measures in place to comply with this obligation and 

stated that the minimum age at which it permitted persons to be voluntarily recruited in the U.S. 

Armed Forces is 17 years of age.

447

4.20.5.3 Treatment of Child Soldiers. In general, children receive the rights, 

duties, and liabilities of combatant status on the same basis as other persons. For example, there 

is no age requirement for someone to receive POW status. Similarly, whether a civilian is 

considered to be taking a direct part in hostilities does not depend on that person’s age.

Children who have participated in hostilities or been associated with an armed force who 

are detained might require additional consideration because of their age. For example, rules for 

 443 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed 

Conflict, art. 1, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall take all feasible measures to ensure that 

members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.”).

444 See United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311, 312 

(“(2) The United States understands that, with respect to Article 1 of the Protocol - ... (B) the phrase ‘direct part in 

hostilities’ - (i) means immediate and actual action on the battlefield likely to cause harm to the enemy because there 

is a direct causal relationship between the activity engaged in and the harm done to the enemy; and (ii) does not 

mean indirect participation in hostilities, such as gathering and transmitting military information, transporting 

weapons, munitions, or other supplies, or forward deployment;”). This statement of understanding was intended to 

address the usage of the phrase “direct part in hostilities” in the context of these treaty obligations relating to 

limiting the participation of children in armed conflict, and the phrase “direct part in hostilities” may be interpreted 

differently in other contexts, such as the circumstances in which civilians forfeit their protection from being made 

the object of attack. Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

445 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed 

Conflict, art. 2, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall ensure that persons who have not attained 

the age of 18 years are not compulsorily recruited into their armed forces.”).

446 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed 

Conflict, art. 3(2), May 25, 2000, 2173 UNTS 222, 237 (“Each State Party shall deposit a binding declaration upon 

ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary 

recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such 

recruitment is not forced or coerced.”).

447 United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311 (“(A) the 

minimum age at which the United States permits voluntary recruitment into the Armed Forces of the United States is 

17 years of age; (B) The United States has established safeguards to ensure that such recruitment is not forced or 

coerced, including a requirement in section 505 (a) of title 10, United States Code, that no person under 18 years of 

age may be originally enlisted in the Armed Forces of the United States without the written consent of the person’s 

parent or guardian, if the parent or guardian is entitled to the person’s custody and control; (C) each person recruited 

into the Armed Forces of the United States receives a comprehensive briefing and must sign an enlistment contract 

that, taken together, specify the duties involved in military service; and (D) all persons recruited into the Armed 

Forces of the United States must provide reliable proof of age before their entry into military service.”).
168

the additional provision for their education might be applicable.

448 Similarly, it might be 

appropriate to take into account the age of a defendant in determining liability or punishment for 

violations of the law of war.

4.21 MERCENARIES

The act of being a mercenary is not a crime in customary international law nor in any 

treaty to which the United States is a Party.449 Under the customary law of war and the GPW, 

“mercenaries” receive the rights, duties, and liabilities of combatant status on the same basis as 

other persons. For example, being a “mercenary” or paid for participating in hostilities does not 

deprive a person of POW status, if that person otherwise meets the requirements for POW status, 

such as by being a member of a militia that is part of the armed forces of a State.

450 Mercenaries 

must comply with the law of war and may be tried and punished for violations of the law of war

on the same basis as other persons. States that employ mercenaries are responsible for their

conduct, including their compliance with the law of war.

Mercenaries are often nationals of States that are not parties to a conflict. In general, a

national of a neutral State who, during an international armed conflict, commits hostile acts 

against a State or who voluntarily enlists in the armed forces of one of the parties should not be 

more severely treated by the State against whom he or she has abandoned his or her neutrality 

than a national of the other belligerent State could be for the same act.451

4.21.1 Treaties on Mercenaries. A number of treaty provisions are intended to repress 

mercenary activities. The United States has not accepted any such provision because these 

efforts are not consistent with fundamental principles of the law of war.452

 448 Refer to § 9.16.2 (Education); § 10.16.2 (Education).

449 See Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of Captured 

Mercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-

1988 3457 (“The act of being a mercenary is not a crime under international law. An individual who is accused of 

being a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian protections of 

the international law applicable in armed conflict, including those specified in the Geneva Convention Relative to 

the Protection of Civilian Persons in Time of War (Aug. 12, 1949; TIAS No. 3365; 6 UST 3516). The specific 

rights which such an individual would be entitled to vary depending on whether the conflict is an international 

conflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled to 

prisoner-of-war status.”).

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

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

452 See, e.g., The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. 

Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF 

INTERNATIONAL LAW AND POLICY 460, 469 (1987) (“[Article 47 of AP I] was included in the Protocol not for 

humanitarian reasons, but purely to make the political point that mercenary activity in the Third World is 

unwelcome. In doing so, this article disregards one of the fundamental principles of international humanitarian law 

by defining the right to combatant status, at least in part, on the basis of the personal or political motivations of the 

individual in question. This politicizing of the rules of warfare is contrary to Western interests and the interests of 

humanitarian law itself.”).
169

AP I denies “mercenaries” the right to be lawful combatants or POWs.

453 This provision 

in AP I was adopted because certain States wanted to condemn mercenary groups that had 

played a role in armed conflicts that had taken place in Sub-saharan Africa since 1960.454 

However, AP I defines “mercenary” very narrowly.

455 For example, any member of the armed 

forces of a party to the conflict, or any member of the armed forces of any other State, who is 

sent on official duty as a member of its armed forces, is not a mercenary as defined by AP I.456 

In addition, although, under AP I, mercenaries lack the right to be a combatant or a POW, Parties 

to AP I may nonetheless decide as a matter of policy to treat enemy mercenaries as lawful 

combatants or POWs.

Shortly after the adoption of AP I, the Convention for the Elimination of Mercenarism in 

Africa was adopted, which uses the same definition of mercenary as AP I,457 but creates greater 

obligations for Parties to punish and repress mercenarism.458 The United States is not a Party to 

 453 See AP I art. 47(1) (“A mercenary shall not have the right to be a combatant or a prisoner of war.”).

454 BOTHE, PARTSCH, & SOLF, NEW RULES 269 (AP I art. 47, ¶2.2) (“The condemnation and outlawing of mercenary 

groups and individual mercenaries who had played a substantial (and often unsavoury) role in the armed conflicts 

which took place in Sub-saharan Africa since 1960 was a high priority goal of African delegations, which was 

supported by other Third World delegations and by the Eastern European group.”).

455 See AP I art. 47(2) (“A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight 

in an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the 

hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict,

material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions 

in the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory 

controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Has 

not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.”).

456 Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of Captured 

Mercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-

1988 3457, 3461 (“This narrow definition of mercenaries in effect denies prisoner-of-war status to individuals who 

fight strictly for private gain. It does not affect any individual who is a member of the state’s regular forces and 

other legitimate combatants.”).

457 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 1(1), Jul. 3, 

1977, 1490 UNTS 89, 96 (“A mercenary is any person who: a) Is specially recruited locally or abroad in order to 

fight in an armed conflict; b) Does in fact take a direct part in the hostilities; c) Is motivated to take part in the 

hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict 

material compensation; d) Is neither a national of a party to the conflict nor a resident of territory controlled by a 

party to the conflict; e) Is not a member of the armed forces of a party to the conflict; and f) Is not sent by a State 

other than a party to the conflict on official mission as a member of the armed forces of the said State.”).

458 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 6, Jul. 3, 1977, 

1490 UNTS 89, 97-98 (“The contracting parties shall take all necessary measures to eradicate all mercenary 

activities in Africa. To this end, each contracting State shall undertake to: a) Prevent its nationals or foreigners on 

its territory from engaging in any of the acts mentioned in Article 1 of this Convention; b) Prevent entry into or 

passage through its territory of any mercenary or any equipment destined for mercenary use; c) Prohibit on its 

territory any activities by persons or organisations who use mercenaries against any African State member of the 

Organization of African Unity or the people of Africa in their struggle for liberation; d) Communicate to the other 

Member States of the Organization of African Unity either directly or through the Secretariat of the OAU any 

information related to the activities of mercenaries as soon as it comes to its knowledge; e) Forbid on its territory the 

recruitment, training, financing and equipment of mercenaries and any other form of activities likely to promote 

mercenarism; f) Take all the necessary legislative and other measures to ensure the immediate entry into force of this 

Convention.”).
170

this treaty.

The International Convention against the Recruitment, Use, Financing and Training of 

Mercenaries of December 4, 1989, defines “mercenary” slightly more broadly than AP I, applies 

to both international and non-international armed conflicts, and defines various offenses related 

to the recruiting, use, financing, or training of mercenaries.

459 The United States is not a Party to 

this treaty.

4.22 AP I PROVISIONS ON CIVIL DEFENSE PERSONNEL

Articles 61-67 of AP I address “civil defence”, i.e., the performance of certain 

humanitarian tasks intended to benefit the civilian population.460

The United States has supported the principle that civilian civil defense organizations and 

their personnel be respected and protected as civilians and be permitted to perform their civil 

defense tasks except in cases of imperative military necessity.461 However, a number of military 

operational problems have been identified with respect to the system of protection for civil 

defense established by AP I, and these provisions of AP I may be understood not to preclude an 

attack on an otherwise lawful military objective.462

4.23 LAW ENFORCEMENT OFFICERS

In general, police officers receive the rights, duties, and liabilities of civilian status.

463 

However, law enforcement agencies are in many respects similar to military forces. They are 

authorized to use necessary force on behalf of the State, are generally distinguishable from 

 459 See International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989, 

Annex to U.N. GENERAL ASSEMBLY RESOLUTION 44/34, U.N. Doc. A/RES/44/34 (Dec. 4, 1989).

460 AP I art. 61 (“For the purposes of this Protocol: (a) ‘Civil defence’ means the performance of some or all of the 

undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it to 

recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its 

survival. These tasks are: (i) Warning; (ii) Evacuation; (iii) Management of shelters; (iv) Management of blackout 

measures; (v) Rescue; (vi) Medical services, including first aid, and religious assistance; (vii) Fire-fighting; ...”).

461 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 427 (1987) 

(“Turning now to the field of civil defense, we support the principle that civilian civil defense organizations and 

their personnel be respected and protected as civilians and be permitted to perform their civil defense tasks except in 

cases of imperative military necessity. We also support the principle that in occupied territories, civilians receive 

from the appropriate authorities, as practicable, the facilities necessary for the performance of their tasks. These 

principles reflect, in general terms, many of the detailed provisions in articles 62 and 63.”).

462 APPENDIX TO 1985 CJCS MEMO ON AP I 69-71 (“In general, the system of protection for civil defense established 

by the Protocol is well-meaning, but creates a number of military operational problems. The main practical 

problems arise from the ambiguity of the definition of civil defense activities in Article 61. ... An attacking force 

will often have difficulty deciding whether to respect the sign in a particular case. To lessen the risk of misuse of 

this sign and avoid placing an unacceptable burden on proof of an attacking force, an understanding is proposed that 

makes it clear that Articles 61-67 do not preclude an attack on an otherwise lawful military objective.”).

463 Refer to § 4.8 (Rights, Duties, and Liabilities of Civilians).
171

private citizens, and are often organized like military forces. In cases where States choose to use 

police officers as part of the armed forces, they receive the rights, duties, and liabilities of 

combatant status.

464 

4.23.1 Police as Civilians. In general, members of law enforcement agencies have 

civilian status.

465 Furthermore, routine domestic law enforcement is part of the general 

protection of the civilian population and does not constitute “taking a direct part in hostilities”

that would deprive police officers of their protection from being made the object of attack.466

4.23.2 Police With a Military Role. Some States use police forces in a paramilitary 

capacity or use military forces in a police role. Members of the armed forces engaged in police 

roles are combatants. 

The extent to which police officers are treated as combatants largely depends on whether 

the State decides to use them in that capacity. States may decide to make law enforcement 

agencies part of their armed forces.

467 Members of these law enforcement agencies, like other 

members of those armed forces, receive combatant status by virtue of their membership in the 

armed forces.

468 In addition, States may authorize members of the law enforcement agencies to 

accompany their armed forces without incorporating them into their armed forces. These 

persons have the legal status of persons authorized to accompany the armed forces.

469

4.23.3 Police in Non-International Armed Conflict. Police officers may play a larger role 

in armed conflicts between States and insurgent or terrorist groups because in such conflicts the 

State may treat all enemy persons’ participation in hostilities as criminal.470

4.24 JOURNALISTS

In general, journalists are civilians and are protected as such under the law of war.

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

465 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3450 (“Members of the civilian police 

force are not deemed to be legitimate objects of attack during international wars unless they are incorporated into the 

armed forces. The ‘status of police is generally that of civilians’ for purposes of the law of war.”).

466 Refer to § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

467 For example, Belgium, Statement on Ratification of AP I, May 20, 1986, 1435 UNTS 367, 367-68 (“Considering 

paragraph 3 of article 43 (armed forces) and the special status of the Belgian gendarmerie, the Belgian Government 

has decided to notify the High Contracting Parties about the following duties which are entrusted to the Belgian 

gendarmerie during periods of armed conflict. It believes that this notification, in so far as is necessary, meets the 

requirements of article 43 in respect of the gendarmerie. (a) The Belgian gendarmerie, which was established to

maintain order and enforce the law, is a public force which, under national legislation, constitutes one of the armed 

forces and which therefore corresponds to the concept of ‘armed forces of a party to a conflict’ within the meaning 

of article 43 of Protocol I. Thus, in times of international armed conflict the members of the gendarmerie have 

‘combatant’ status within the meaning of that Protocol.”).

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

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

470 Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).
172

Journalists play a vital role in free societies and the rule of law and in providing 

information about armed conflict.471 Moreover, the proactive release of accurate information to 

domestic and international audiences has been viewed as consistent with the objectives of U.S. 

military operations.472 DoD operates under the policy that open and independent reporting is the 

principal means of coverage of U.S. military operations.473 In addition to responding to press 

inquiries and providing briefings to members of the press on U.S. military operations, DoD 

practice has also been to embed journalists with units during military operations.474 Embedded 

journalists are assigned to a unit, and they eat, sleep, and move with the unit.475

4.24.1 Status of Journalists – Generally Civilian. In general, journalists are protected as 

 471 See, e.g., Robert S. Taylor, Acting General Counsel, Department of Defense, Letter to Christophe Deloire, 

Secretary-General, Reporters Without Borders, Sept. 15, 2015 (“The Department supports and respects the vital 

work that journalists perform. Their work in gathering and reporting news is essential to a free society and the rule 

of law. The Department shares your deep concern about the risks faced by journalists in situations of armed 

conflict.”); Remarks by Ambassador Rosemary A. DiCarlo, Acting Permanent Representative to the United Nations, 

At a Security Council Open Debate on Protection of Civilians in Armed Conflict: Protection of Journalists, July 17, 

2013, 2013 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 195 (“Journalists are literally our eyes 

and ears in every corner of the world. They sound the warning when local tensions threaten to erupt into war. They 

document the suffering of civilians in conflict areas. And they expose human rights violations and war crimes. 

Journalists are critical to this Council’s ability to remain well informed so that it may fulfill its mandate to maintain 

international peace and security.”).

472 JOINT PUBLICATION 3-61, Public Affairs, I-1 (Nov. 17, 2015) (“b. The US military has an obligation to 

communicate with its members and the US public, and it is in the national interest to communicate with international 

publics. The proactive release of accurate information to domestic and international audiences puts joint operations 

in context, facilitates informed perceptions about military operations, undermines adversarial propaganda, and helps 

achieve national, strategic, and operational objectives.”).

473 DOD DIRECTIVE 5122.05, Assistant Secretary of Defense for Public Affairs (ASD(PA)), 9 (Sept. 5, 2008), 

Enclosure 3 - Statement of DoD Principles for News Media Coverage of DoD Operations (“1. Open and 

independent reporting shall be the principal means of coverage of U.S. military operations.”).

474 For example, Richard K. Wright, Assessment of the DoD Embedded Media Program, I-1 (Institute for Defense 

Analyses, Sept. 2004) (“The Department of Defense (DoD) Embedded Media Program resulted in an unprecedented 

opportunity for the media to report in real time on the military units and the soldiers, marines, sailors, and airmen 

who executed combat operations during Operation Iraqi Freedom (OIF). A total of 692 reporters, photographers, 

producers, cameramen, and technicians were embedded with ground units, on ships, and at air bases for an extended 

period of time.”).

475 Public Affairs Guidance (PAG) On Embedding Media During Possible Future Operations/Deployments In The 

U.S. Central Command (CENTCOM) Area Of Responsibility (AOR), Feb. 10, 2003, ¶2.C, reprinted as Appendix D 

in Richard K. Wright, Assessment of the DoD Embedded Media Program, D-4 (Institute for Defense Analyses, Sept. 

2004) (“A MEDIA EMBED IS DEFINED AS A MEDIA REPRESENTATIVE REMAINING WITH A UNIT ON 

AN EXTENDED BASIS – PERHAPS A PERIOD OF WEEKS OR EVEN MONTHS. COMMANDERS WILL 

PROVIDE BILLETING, RATIONS, AND MEDICAL ATTENTION, IF NEEDED, TO THE EMBEDDED 

MEDIA COMMENSURATE WITH THAT PROVIDED TO MEMBERS OF THE UNIT, AS WELL AS ACCESS 

TO MILITARY TRANSPORTATION AND ASSISTANCE WITH COMMUNICATIONS 

FILING/TRANSMITTING MEDIA PRODUCTS, IF REQUIRED.”); DEPARTMENT OF THE ARMY FIELD MANUAL

46-1, Public Affairs Operations, 25-26 (May 30, 1997) (“PAOs should seek out those members of the media who 

are willing to spend extended periods of time with soldiers during an operation, embedding them into the unit they 

cover. Embedding is the act of assigning a reporter to a unit as a member of the unit. The reporter eats, sleeps, and 

moves with the unit. The reporter is authorized open access to all sections of the unit and is not escorted by public 

affairs personnel. Rather, the unit is the reporter’s escort.”).
173

civilians;476 i.e., engaging in journalism does not constitute taking a direct part in hostilities such 

that such a person would be deprived of protection from being made the object of attack.477

Journalists do not form a distinct class of persons under the law of war, but instead 

receive protection through the general protections afforded civilians.478 Thus, in general, the 

rights, duties, and liabilities applicable to civilians also apply to journalists.479

Although journalism is regarded as a civilian activity, the fact that a person performs 

such work does not preclude that person from otherwise acquiring a different status under the 

law of war, such as the status of persons authorized to accompany the armed forces or of 

combatants.

4.24.1.1 War Correspondents and Other Journalists Authorized to Accompany the 

Armed Forces. Journalists authorized to accompany the armed forces have the status of such 

persons.480 For example, if they fall into the power of the enemy during international armed 

conflict, they are entitled to POW status.481 Such journalists are sometimes called “war 

 476 See Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11 (2d Cir. Dec. 20, 2012) (“As an 

initial matter, it is an established law of war norm, which is reflected in Article 79 of Additional Protocol I to the 

Geneva Conventions, that ‘journalists’ are generally to be protected as ‘civilians.’ Although the United States is not 

a party to Additional Protocol I, it supports and respects this important principle.”); Michael J. Matheson, Deputy 

Legal Adviser, Department of State, Remarks on the United States Position on the Relation of Customary 

International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American 

Red Cross-Washington College of Law Conference on International Humanitarian Law (Jan. 22, 1987), 2 

AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 428 (1987) (“We also support the 

principle that journalists be protected as civilians under the Convention, provided they take no action adversely 

affecting such status.”). Consider AP I art. 79 (“MEASURES OF PROTECTION FOR JOURNALISTS. 1. Journalists 

engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the 

meaning of Article 50, paragraph 1. 2. They shall be protected as such under the Conventions and this Protocol, 

provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of 

war correspondents accredited to the armed forces to the status provided for in Article 4 A (4) of the Third 

Convention.”).

477 Refer to § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

478 See, e.g., U.N. SECURITY COUNCIL RESOLUTION 2222 (2015), U.N. Doc. S/RES/2222 (2015) ¶¶ 3, 7 (May 27, 

2015) (“3. Recalls in this regard that journalists, media professionals and associated personnel engaged in 

dangerous professional missions in areas of armed conflict shall be considered as civilians and shall be respected 

and protected as such, provided that they take no action adversely affecting their status as civilians. ... 7. Recalls its 

demand that all parties to an armed conflict comply fully with the obligations applicable to them under international 

law related to the protection of civilians in armed conflict, including journalists, media professionals and associated 

personnel;”).

479 Refer to § 4.8 (Rights, Duties, and Liabilities of Civilians).

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

481 See GPW art. 4A(4) (defining “prisoners of war, in the sense of the present Convention” to include “[p]ersons 

who accompany the armed forces without actually being members thereof, such as ... war correspondents, ... 

provided that they have received authorization from the armed forces which they accompany,” who have fallen into 

the power of the enemy); HAGUE IV REG. art. 13 (“Individuals who follow an army without directly belonging to it, 

such as newspaper correspondents and reporters, ... who fall into the enemy’s hands and whom the latter thinks 

expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate 

from the military authorities of the army which they were accompanying.”).
174

correspondents,” which is a term used in Geneva Conventions of 1949.482

Since journalists authorized to accompany the armed forces are liable to become POWs, 

they must be issued identification cards so that they may establish their entitlement to POW 

status upon falling into the power of the enemy during international armed conflict.483

4.24.1.2 Combatants Performing Journalistic Work. Although generally 

journalists are civilians, journalists are not precluded from being considered combatants, whether 

privileged or unprivileged, if they otherwise acquire such status. For example, members of the 

armed forces sometimes serve as journalists or in some other public affairs capacity, and these 

persons have the same status as other privileged combatants.484 Non-State armed groups 

sometimes use their members485 for propaganda or other media activities, and such personnel are 

not precluded from being considered unprivileged belligerents.486 In addition, although 

engaging in journalism would not be a basis to consider a person an unprivileged belligerent, an 

unprivileged belligerent would not be precluded from being considered as such because he or she 

works as a journalist.

4.24.2 General Rules for the Treatment of Civilian Journalists and Journalists Authorized 

to Accompany the Armed Forces. Although journalists generally are protected as civilians as a 

legal matter, the factual circumstances of armed conflict often expose journalists exercising their 

profession in such a situation to dangers not normally encountered by other civilians.487

4.24.2.1 Journalists – Risks in Areas of Military Operations. Journalists who 

enter areas of military operations assume a significant risk that they could be injured or killed 

incidental to an enemy attack or from other dangers.488 Unfortunately, journalists have 

sometimes been killed while reporting in close proximity to combat operations.489 To minimize 

 482 GPW art. 4A(4); AP I art. 79(2).

483 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

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

485 Refer to § 4.18.4.1 (Being Part of a Hostile, Non-State Armed Group).

486 For example, United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1261 (CMCR 2011) (“In his voluntary 

statements to investigators, appellant admitted on multiple occasions to traveling to Afghanistan with the intent to 

join al Qaeda, undergoing military-type training at an al Qaeda sponsored camp, and meeting with bin Laden 

following his training. During that meeting, appellant admitted discussing bin Laden’s views on Islam and jihad 

against the United States, agreeing with those views, and then pledging personal loyalty to bin Laden. He then 

joined al Qaeda as a member, worked in al Qaeda’s media office, and eventually took charge of that office, where he 

performed a number of acts to recruit, to incite others to join al Qaeda, and to indoctrinate prospective al Qaeda 

recruits into the al Qaeda Plan.”).

487 See ICRC AP COMMENTARY 918 (¶3245) (“The circumstances of armed conflict expose journalists exercising 

their profession in such a situation to dangers which often exceed the level of danger normally encountered by 

civilians. In some cases the risks are even similar to the dangers encountered by members of the armed forces, 

although they do not belong to the armed forces.”).

488 Refer to § 4.15.2.3 (Increased Risk of Incidental Harm).

489 For example, Marc Warren, The ‘Fog of Law’: The Law of Armed Conflict in Operation Iraqi Freedom, 86 U.S.

NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 167, 196-97 endnote 20 (2010) (“Consider, e.g., the case of 

the Palestine Hotel in Baghdad, where two civilian cameramen were killed in an explosion caused by a round from 
175

the risk of mistakenly being made the object of attack, journalists often seek to distinguish 

themselves from military forces.490 Where possible, efforts should be made to distinguish 

between the activities of journalists and the activities of enemy forces, so that journalists’ 

activities (e.g., meetings or other contacts with enemy personnel for journalistic purposes) do not 

result in a mistaken conclusion that a journalist is part of enemy forces.

In addition, civilian journalists and journalists authorized to accompany the armed forces 

should not take any action adversely affecting their status as civilians if they wish to retain 

protection as a civilian.491 For example, relaying target coordinates with the specific purpose of 

directing an artillery strike against opposing forces would constitute taking a direct part in 

hostilities that would forfeit protection from being made the object of attack.

492

4.24.2.2 Journalists – Reporting on Military Operations. As noted above, DoD 

operates under the policy that open and independent reporting is the principal means of coverage 

of U.S. military operations. Under the law of war, there is no special right for journalists to 

access areas of military operations without the consent of the State conducting those 

operations.493 The law of war does not prohibit States from taking security measures to reduce 

the risk of disclosure of sensitive military information, such as numbers of military personnel, 

types of on-hand equipment, unit locations, and plans for future operations.494 For example, 

 

the main gun of a US Abrams tank on April 8, 2003. The unit of which the tank was a part had been engaged in 

significant urban fighting, including repulsing an enemy counterattack on the day of the incident, and had received 

reports of enemy forward observers in high-rise buildings on the east side of the Tigris River. As the tank crossed 

the Al Jumhuriya Bridge, its crew spotted, and fired one round at, what appeared to be an enemy forward observer, 

but was in fact a civilian cameraman. The explosion killed Spanish cameraman Jose Couso and Reuters cameraman 

Taras Protsyuk, and wounded three other journalists. US forces conducted an investigation and determined that the 

Palestine Hotel had been fortified by the enemy and was occupied by the enemy. The cameraman had been 

misidentified as an enemy forward observer, which was a reasonable mistake under the circumstances.”); Ernie Pyle 

Is Killed on Ie Island; Foe Fired when All Seemed Safe, THE NEW YORK TIMES, Apr. 19, 1945 (“GUAM, April 18—

Ernie Pyle died today on Ie Island, just west of Okinawa, like so many of the doughboys he had written about. The 

nationally known war correspondent was killed instantly by Japanese machine-gun fire. The slight, graying 

newspaper man, chronicler of the average American soldier’s daily round, in and out of foxholes in many war 

theatres, had gone forward early this morning to observe the advance of a well-known division of the Twenty-fourth 

Army Corps.”).

490 For example, Reporters Without Borders, Safety Guide for Journalists: A handbook for reporters in high-risk 

environments, 41 (2015) (“To protect yourself against snipers: ... • Indicate clearly that you are a journalist. 

Write PRESS or TV on everything. • Don’t wear military-style clothing so as not to be confused with a combatant. 

And be careful with how you carry your equipment – cameras and zooms could look like weapons from afar.”); 

Reporters Without Borders, Handbook for Journalists, 26 (2010) (“PASSING THROUGH AN AREA OF 

FIGHTING Only do so if you have no alternative. ... • Distinguish yourself from those fighting, for example by 

putting a ‘press’ sign on the vehicle.”).

491 Consider AP I art. 79 (“Journalists engaged in dangerous professional missions in areas of armed conflict” shall 

be protected as civilians from attack “provided that they take no action adversely affecting their status as civilians,”).

492 Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

493 Compare § 4.26.2 (Consent of the Parties to the Conflict Concerned).

494 JOINT PUBLICATION 3-61, Public Affairs, C-3 (Nov. 17, 2015) (“In more general terms, information in the 

following categories should not be revealed because of potential jeopardy to future operations, the risk to human 

life, possible violation of HN and/or allied sensitivities, or the possible disclosure of intelligence methods and 

sources. ... (1) For US (or allied) units, specific numerical information on troop strength, aircraft, weapons systems, 

on-hand equipment, or supplies available for support of combat units. General terms should be used to describe 
176

military security ground rules may be developed for media personnel.495 The particular 

restrictions imposed by a State are likely to depend on its domestic law and policy. 

Access to military operations that is afforded to media personnel must be consistent with 

law of war obligations,496 including obligations to protect prisoners of war and other detainees 

against public curiosity.497

4.25 DELEGATES OR REPRESENTATIVES OF THE PROTECTING POWERS

4.25.1 Appointment of Delegates of the Protecting Powers. The Protecting Powers may 

appoint, apart from their diplomatic or consular staff, delegates from among their own nationals 

or the nationals of other neutral Powers to carry out its duties under the GPW and the GC.

498

These delegates shall be subject to the approval of the Power with which they are to carry out 

their duties.499

4.25.2 Duties of the Representatives or Delegates of the Protecting Power. The parties to 

the conflict shall facilitate to the greatest extent possible the task of the representatives or 

 units, equipment, and/or supplies. (2) Any information that reveals details of future plans, operations, or strikes, 

including postponed or canceled operations. (3) Information and VI [visual information] that would reveal the 

specific location of military forces or show the level of security at military installations or encampments.”).

495 DOD DIRECTIVE 5122.05, Assistant Secretary of Defense for Public Affairs (ASD(PA)), 9 (Sept. 5, 2008), 

Enclosure 3 – Statement of DoD Principles for News Media Coverage of DoD Operations (“4. Journalists in a 

combat zone shall be credentialed by the U.S. military and shall be required to abide by a clear set of military 

security ground rules that protect U.S. Armed Forces and their operations. Violation of the ground rules may result 

in suspension of credentials and expulsion from the combat zone of the journalist involved. News organizations 

shall make their best efforts to assign experienced journalists to combat operations and to make them familiar with 

U.S. military operations.”); see also JOINT PUBLICATION 3-61, Public Affairs, III-17 (Nov. 17, 2015) (“Ground rules 

are developed to protect members of DOD from the release of information that could threaten their security or safety 

during ongoing operations while facilitating the media’s access to timely, relevant information. Ground rules 

reconcile the desire of the media to cover military operations with DOD security and safety concerns and are in no 

way intended to prevent release of derogatory, embarrassing, negative, or non-complimentary information. Media 

ground rules include requirements designed to protect the security, health, and welfare of the media. Media ground 

rules should also include the process for release of information, media access to the commander, and access to the 

Internet if not commercially available, and the process for unintentional exposure to classified information.”).

496 For example, CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER 

& SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS 

(11 SEPTEMBER 2001 - 1 MAY 2003) 138 (2004) (“The presence of embedded media resulted in various issues for the 

legal teams. For instance with hundreds of journalists traveling throughout Iraq looking for stories, JAs reported 

that they had to be vigilant in ensuring that EPWs and the bodies of deceased individuals were not photographed. 

Although journalists were warned not to film or photograph EPWs and the deceased, and in most cases they did not, 

some journalists had to be sent home for violating this guidance.”).

497 Refer to § 8.2.2.2 (Protection Against Public Curiosity); § 9.5.3 (Protection Against Insults and Public Curiosity).

498 GPW art. 8 (“For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, 

delegates from amongst their own nationals or the nationals of other neutral Powers.”); GC art. 9 (same).

499 GPW art. 8 (“The said delegates shall be subject to the approval of the Power with which they are to carry out 

their duties.”); GC art. 9 (same).
177

delegates of the Protecting Powers.500

The representatives or delegates of the Protecting Powers shall not in any case exceed 

their mission under the 1949 Geneva Conventions.

501 They shall, in particular, take account of 

the imperative necessities of security of the State wherein they carry out their duties.502

4.25.3 Restrictions on Representatives of the Protecting Powers. A belligerent may 

impose legitimate security restrictions on the activities of the delegates or representatives of the 

Protecting Powers working in its territory or in its facilities. However, belligerents should only 

restrict the activities of the representatives or delegates of the Protecting Powers “as an 

exceptional and temporary measure when this is rendered necessary by imperative military 

necessities.”503 For example, a belligerent may postpone a visit by Protecting Power 

representatives to a POW camp for security or humanitarian reasons, such as tactical movement 

of its own forces or to protect Protecting Power personnel from explosive remnants of war being 

cleared from recent military operations along the route to the POW camp.

4.26 ICRC AND OTHER IMPARTIAL HUMANITARIAN ORGANIZATIONS

The 1949 Geneva Conventions contemplate that the ICRC and other impartial 

humanitarian organizations may, subject to the consent of the parties to the conflict concerned,

provide humanitarian aid and seek to ensure the protection of war victims in armed conflict.504 

In some cases, the ICRC or another impartial humanitarian organization may assume the 

humanitarian functions performed by the Protecting Powers.

505

4.26.1 “Impartial”. To be an “impartial humanitarian organization” under the 1949 

Geneva Conventions, a humanitarian organization must be impartial. The requirement of 

impartiality distinguishes these humanitarian organizations from those with an allegiance to a 

party to the conflict, such as national red cross societies.

506

4.26.2 Consent of the Parties to the Conflict Concerned. The activities of the ICRC or 

other impartial humanitarian organizations in a State’s sovereign territory, or in the area of a 

 500 GPW art. 8 (“The Parties to the conflict shall facilitate to the greatest extent possible the task of the 

representatives or delegates of the Protecting Powers.”); GC art. 9 (same).

501 GPW art. 8 (“The representatives or delegates of the Protecting Powers shall not in any case exceed their mission 

under the present Convention.”); GC art. 9 (same).

502 GPW art. 8 (“They shall, in particular, take account of the imperative necessities of security of the State wherein 

they carry out their duties.”); GC art. 9 (same).

503 GWS art. 8; GWS-SEA art. 8 (same). Refer to § 9.33.1 (Access by Protecting Powers); § 10.33.1 (Access by 

Protecting Powers).

504 See, e.g., GWS art. 9 (“The provisions of the present Convention constitute no obstacle to the humanitarian 

activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, 

subject to the consent of the Parties to the conflict concerned, undertake for the protection” and relief of persons 

protected by the Convention); GWS-SEA art. 9 (same); GPW art. 9 (same); GC art. 10 (same).

505 Refer to § 18.15.2 (Appointment of a Protecting Power).

506 Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).
178

State’s military operations, are subject to the consent of that State.

507 The requirement of State 

consent is based on the State’s sovereign right to control access to its territory and a belligerent’s 

right to control access to its military operations or territory it occupies.508 For example, 

members of impartial humanitarian organizations, like other civilians, may be removed from the 

vicinity of military objectives for their protection.509

States may grant access on a case-by-case basis; access granted to one impartial 

humanitarian organization does not constitute entitlement of access for other humanitarian 

organizations. Impartial humanitarian organizations that have been granted access must also act 

within the terms of this consent.

510 For comparison, the activities of the Protecting Power are 

also subject to the consent of the affected States.511

States should not arbitrarily withhold their consent to the activities of humanitarian 

organizations, even in non-international armed conflict.

512 Where a State has accepted the 

services of an impartial humanitarian organization, the State must not regard such service, such 

as the provision of medical care, as unlawful and subject to punishment.513

4.26.2.1 Impartial Humanitarian Organizations – Conditions on Access. States 

may attach conditions to their consent, including necessary security measures. For example, in 

the past, armed groups have sometimes attempted to use humanitarian organizations as cover for 

 507 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2066 (“The obligations set forth in this paragraph generally are subject to 

the consent of the parties to the conflict, as noted in Article 9 of the GPW and 10 of the GC. Although the U.S. 

historically has called upon the ICRC to assist it in implementation of the provisions of the 1949 Geneva 

Conventions, ultimately any decision to seek assistance of the ICRC or any other humanitarian organization is 

subject to the consent of the parties to the conflict in general and the host nation in particular.”).

508 Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations); 

§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).

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

510 See U.S. RESPONSE TO ICRC CIHL STUDY 520 (“We do not believe that rule 31, as drafted, reflects customary 

international law applicable to international or non-international armed conflicts. The rule does not reflect the 

important element of State consent or the fact that States’ obligations in this area extend only to HRP [Humanitarian 

Relief Personnel] who are acting within the terms of their mission - that is, providing humanitarian relief. To the 

extent that the authors intended to imply a ‘terms of mission’ requirement in the rule, the authors illustrated the 

difficulty of proposing rules of customary international law that have been simplified as compared to the 

corresponding treaty rules.”).

511 Refer to § 18.15.3 (Activities of the Protecting Power).

512 Refer to § 17.8.1 (State Consent for Humanitarian Organizations).

513 Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During 

Armed Conflict, ¶VI, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to the 

Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3, 

2016 (“VI. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. A. 

States should not arbitrarily withhold their consent to the activities of humanitarian organizations. B. Where a State 

has accepted the services of an impartial humanitarian organization, it must not regard such services, including the 

provision of medical care, as unlawful and subject to punishment.”).
179

participation in hostilities.

514 In addition to legitimate military considerations, other 

considerations may also limit access by impartial humanitarian organizations to military 

operations. For example, the GPW obligates a Detaining Power to protect POWs from “public 

curiosity,” which may entail limiting access to POWs by private organizations.515

4.26.2.2 Impartial Humanitarian Organizations – CCW Amended Mines Protocol 

Obligation. In certain cases, however, there may be an obligation to take measures to help 

protect the personnel of certain humanitarian organizations that are performing functions with 

the consent of the Party to the CCW Amended Mines Protocol on whose territory the functions 

are performed from the effects of mines, booby-traps, and other devices.

516

4.26.3 Special Status of the ICRC. The 1949 Geneva Conventions explicitly recognize 

the special position of the ICRC among impartial humanitarian organizations.

517 Similarly, 

Congress has specifically authorized – and the President has designated – the ICRC to be 

extended the same privileges and immunities that are afforded to public international 

organizations in which the United States participates.518 The President has also recognized the 

role of the ICRC in visiting individuals detained in armed conflict.519 The United States has

relied on the ICRC’s capacity, particularly in conflict situations, and has contributed 

substantially to the ICRC’s work.520 The United States has maintained a very constructive 

 514 U.S. RESPONSE TO ICRC CIHL STUDY 519-20 (“For example, during the 1982 Israeli incursion into Lebanon, 

Israel discovered ambulances marked with the Red Crescent, purportedly representing the Palestinian Red Crescent 

Society, carrying able-bodied enemy fighters and weapons. This misconduct reportedly was repeated during the 

2002 seizure of Bethlehem’s Church of the Nativity by members of the terrorist al Aqsa Martyrs Brigade. ... 

Military commanders also have had to worry about individuals falsely claiming HRP [humanitarian relief personnel] 

status, as happened in Afghanistan when some members of Al Qaeda captured while fighting claimed to be working 

for a humanitarian relief organization. These examples demonstrate why States, in crafting treaty provisions on this 

topic, have created a ‘terms of mission’ condition for HRP in a way that rule 31 fails to do.”).

515 Refer to § 9.5.3 (Protection Against Insults and Public Curiosity).

516 Refer to § 6.12.11 (Obligation to Seek to Protect Certain Groups From the Effects of Minefields, Mined Areas, 

Mines, Booby-Traps, and Other Devices).

517 See, e.g., GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shall 

be recognized and respected at all times.”); GC art. 142 (same).

518 See 22 U.S.C. § 288f-3 (“The International Committee of the Red Cross, in view of its unique status as an 

impartial humanitarian body named in the Geneva Conventions of 1949 and assisting in their implementation, shall 

be considered to be an international organization for the purposes of this subchapter and may be extended the 

provisions of this subchapter in the same manner, to the same extent, and subject to the same conditions, as such 

provisions may be extended to a public international organization in which the United States participates pursuant to 

any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation 

for such participation.”); Executive Order 12643, International Committee of the Red Cross, 53 FEDERAL REGISTER

24247 (Jun. 23, 1988) (“I hereby extend to the International Committee of the Red Cross the privileges, exemptions, 

and immunities provided by the International Organizations Immunities Act.”).

519 Refer to § 8.10.4 (ICRC Access to Detainees).

520 Gary Robbins, Chargé d’Affaires, Department of State, U.S. Mission to the Organization for Security and 

Cooperation in Europe, Response to Ambassador Peter Maurer, President of the International Committee of the Red 

Cross, Jan. 30, 2014 (“We honor the work that the ICRC has done over the past 150 years. With its founding 

principles of impartiality, neutrality, and independence, the ICRC is able to carry out crucial work where others 

cannot. The United States values the ICRC’s work and relies on its capacity, particularly in conflict situations. In 

fiscal year 2013, the United States contributed more than $280 million to the ICRC’s work, which reflects our 
180

dialogue with the ICRC.

The ICRC does important work in visiting detainees, facilitating communication between 

detainees and their families, organizing relief operations, and undertaking similar humanitarian 

activities during armed conflicts. For example, the ICRC has performed the functions of a 

Protecting Power during armed conflict.521 In addition, the ICRC has performed the functions of 

the Central Information Agency for POWs and protected persons during international armed 

conflict.

522 In order to facilitate access, the ICRC conducts its visits to detention facilities on a 

confidential basis, a practice that DoD has sought to respect.523

The ICRC has issued policy proposals or interpretative guidance on a variety of 

international law issues. Although the ICRC’s proposals and interpretations do not have binding 

legal effect, they have often been helpful to States. In some cases, the United States and other 

States have not accepted the ICRC’s proposals or interpretations and instead expressed opposing 

views. For example, the United States has not accepted the ICRC’s study on customary 

international humanitarian law nor its “interpretive guidance” on direct participation in 

hostilities.524

4.27 DETERMINING THE STATUS OF DETAINEES IN CASES OF DOUBT

4.27.1 Identification Cards Used to Help Clarify Status. The 1949 Geneva Conventions 

contemplate that identification cards will be used to help clarify the status of detainees in 

international armed conflict.525 Parties to the GPW must provide identity cards to persons under 

their jurisdiction who are liable to become POWs.

526 Similarly, Parties to the GWS must 

provide retained personnel with a special identity card that denotes their status.527 Capturing 

units should not take these identity cards from POWs or retained personnel.528 In addition, 

 confidence in the organization. We look forward to supporting the ICRC in the future as we confront significant 

humanitarian need around the globe.”).

521 Refer to § 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by 

Protecting Powers Under the 1949 Geneva Conventions).

522 Refer to § 9.31.3 (Central POW Information Agency); § 10.31.3 (Central Information Agency for Protected 

Persons).

523 See, e.g., American Civil Liberties Union v. Department of Defense, 389 F. Supp. 2d 547, 554 (S.D.N.Y. 2005) 

(noting that DoD policy “requires confidential treatment of all ICRC communications”). For discussion of the ICRC 

practice of confidentiality, see Prosecutor v. Blagoje Simic et al., ICTY Trial Chamber, IT-95-9, Decision on the 

Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, ¶¶45-74 (Jul. 27, 1999); 

Prosecutor v. Blagoje Simic, et al., ICTY Trial Chamber, IT-95-9, Separate Opinion Of Judge David Hunt On 

Prosecutor’s Motion For A Ruling Concerning The Testimony Of A Witness, ¶¶14-33 (Jul. 27, 1999).

524 Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law); § 5.8.1.2 (AP I, Article 

51(3) Provision on Direct Participation in Hostilities).

525 See, e.g., GPW COMMENTARY 52 (“If need be, any person to whom the provisions of Article 4 [of the GPW] are 

applicable can prove his status by presenting the identity card provided for in Article 17.”).

526 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

527 Refer to § 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).

528 GPW art. 17 (“The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken 

away from him.”); GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or 
181

States should retain duplicate copies of identification cards that they issue.529 In contemporary 

practice, modern storage systems, such as computer databases, are used rather than storing 

duplicates of the issued identification cards.530 

Producing an identification card to capturing forces is not necessarily a prerequisite for a 

person to be entitled to a particular status. Identification cards may become lost, damaged, or 

stolen during military operations, so a failure to produce an identity card does not necessarily 

mean that person lacks a particular status.531 

4.27.2 POW Protections for Certain Persons Until Status Has Been Determined. 

Capturing personnel may be unable to establish a detainee’s status, including whether that person 

is entitled to POW status under the GPW. For example, a detainee might have lost his or her

identity card or the detainee might be a deserter who does not wish to admit that he or she is a 

member of enemy armed forces. 

During international armed conflict, should any doubt arise as to whether persons, having 

committed a belligerent act and having fallen into the hands of the enemy, belong to any of the 

categories enumerated in Article 4 of the GPW, such persons shall enjoy the protection of the 

GPW until such time as their status has been determined by a competent tribunal.532

4.27.3 Competent Tribunal to Assess Entitlement to POW Status or Treatment. The 

“competent tribunal” in Article 5 of the GPW is often called an “Article 5 tribunal.” In some 

 

identity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of the 

cards and to have the insignia replaced.”).

529 GWS art. 40 (Identity cards for military medical and religious personnel “should be made out, if possible, at least 

in duplicate, one copy being kept by the home country.”); GPW art. 17 (Identity cards for prisoners of war “[a]s far 

as possible ... shall be issued in duplicate.”).

530 For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions,

¶3(a)(3) (Apr. 16, 2012) (“The duplicate ID card requirements of Article 17 of Reference (f), to facilitate 

identification of POWs with the Prisoner of War Information Bureau as delineated in Article 122 of Reference (f), 

are more adequately met by the information routinely maintained in the Defense Enrollment Eligibility Reporting 

System (DEERS). Accordingly, duplicate ID cards will not be required.”).

531 See, e.g., GPW COMMENTARY 64-65 (noting that States at the Diplomatic Conference of Geneva of 1949 

“considered that the capacity in which the person was serving should be a determining factor; the possession of a[n 

identification] card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but a 

supplementary safeguard”).

532 GPW art. 5 (“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen 

into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the 

protection of the present Convention until such time as their status has been determined by a competent tribunal.”). 

Consider AP I art. 45(1) (“A person who takes part in hostilities and falls into the power of an adverse Party shall be 

presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of 

prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status 

on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to 

whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, 

therefore, to be protected by the Third Convention and this Protocol until such time as his status has been 

determined by a competent tribunal.”).
182

cases, courts have undertaken to assess whether a detainee is entitled to POW status,533 but a 

“competent tribunal” generally entails the Detaining Power convening an administrative 

board.534 The GPW affords the Detaining Power substantial discretion regarding the 

composition and procedures of an Article 5 tribunal.535

Article 5 only requires a tribunal if there is “any doubt” regarding a person’s entitlement 

to POW status or treatment.536 For example, if there was no doubt that the armed group to which 

a person belongs fails to qualify for POW status, then the GPW would not require a tribunal to 

adjudicate the person’s claim to POW status by virtue of membership in that group.

537

4.27.4 Tribunals to Assess Other Detainee Issues. By its terms, Article 5 of the GPW 

only addresses a person’s entitlement to POW status or treatment. However, an administrative 

process may be appropriate to address status questions besides entitlement to POW status or 

treatment, such as whether detainees are retained personnel or civilians. DoD practice has been 

to use Article 5 tribunals or similar administrative tribunals to address those issues.

538 For 

example, DoD used administrative tribunals to address a variety of detainee issues during 

detention operations in Viet Nam,539 Panama,540 the Persian Gulf in 1991,541 Iraq in 2003,542

 533 See, e.g., United States v. Lindh, 212 F. Supp. 2d 541, 557-58 (E.D. Va. 2002) (assessing whether a captured 

Taliban fighter was entitled to POW status under GPW); United States v. Noriega, 808 F. Supp. 791, 794-96 (S.D. 

Fla. 1992) (assessing whether a captured Panamanian General was entitled to POW Status under GPW); Stanislaus 

Krofan & Anor. v. Public Prosecutor, (Singapore Federal Court, 1966), LEVIE, DOCUMENTS ON POWS 732-36 

(assessing whether captured Indonesian saboteurs were entitled to POW status under GPW); The Military 

Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 1969), LEVIE,

DOCUMENTS ON POWS 771-80 (assessing whether members of the Popular Front for the Liberation of Palestine 

were entitled to POW status under GPW).

534 Denmark proposed the term “competent tribunal” instead of “military tribunal” because “[t]he laws of the 

Detaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” II-B 

FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 270.

535 For examples of the procedures of past U.S. tribunals, see, e.g., U.S. CENTRAL COMMAND REGULATION 27-13, 

Captured Persons: Determination of Eligibility for Enemy Prisoner of War Status (Jan. 15, 1991); 1997 MULTISERVICE DETENTION REGULATION § 1-6.e.

536 Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third Geneva 

Convention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 9 (“Under Article 5 of GPW, 

‘[s]hould any doubt arise as to whether persons ... belong to any of the categories enumerated in Article 4, such 

persons shall enjoy the protection of the present Convention until such time as their status has been determined by a 

competent tribunal.’ As we understand it, DoD in the past has presumed prisoners to be entitled to POW status until 

a tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is 

‘any doubt’ as to a prisoner’s Article 4 status.”) (amendments in original).

537 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

538 See, e.g., 1997 MULTI-SERVICE DETENTION REGULATION § 1-6.e.(10) (boards making determinations pursuant to 

Article 5 of GPW may make, in addition to a determination that someone is an enemy prisoner of war, also 

determinations that an individuals is retained personnel, an “innocent civilian,” or a civilian internee “who for 

reasons of operational security, or probable cause incident to criminal investigation, should be detained.”).

539 In Viet Nam, the U.S. Army used panels of three officers assisted by a judge advocate advisor to assess the status 

of detainees. See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 381-46, Military Intelligence: 

Combined Screening of Detainees (Dec. 27, 1967); U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-

5, Prisoners of War -- Determination of Eligibility (Mar. 15, 1968); Fred K. Green, The Concept of “War” and the 
183

Afghanistan,543 and Guantanamo.544

 Concept of “Combatant” in Modern Conflicts, 10 THE MILITARY LAW AND THE LAW OF WAR REVIEW 267, 285 

(1971) (discussing detainee status classifications under Military Assistance Command Vietnam Directive 20-5).

540 See FRED BORCH, JUDGE ADVOCATES IN COMBAT 103-06 (2001) (describing detainee screening procedures in 

1989-1990 Operation JUST CAUSE in Panama).

541 See FINAL REPORT ON THE PERSIAN GULF WAR 577-78 (describing article 5 tribunals during Operation DESERT 

STORM).

542 See, e.g., CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &

SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS 

(11 SEPTEMBER 2001 - 1 MAY 2003) 41-47 (2004) (describing Article 5 tribunals conducted during Operation IRAQI 

FREEDOM in 2003).

543 See Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C., 2009) (describing detainee review procedures in 

Afghanistan); Detainee Review Procedures At Bagram Theater Internment, enclosed in Phillip Carter, Deputy 

Assistant Secretary of Defense for Detainee Policy, Letter to Senator Carl Levin, Jul. 14, 2009 (describing modified 

detainee review procedures in Afghanistan).

544 See, e.g., Executive Order 13567, Periodic Review of Individuals Detained at Guantanamo Bay Naval Station 

Pursuant to the Authorization for Use of Military Force, 76 FEDERAL REGISTER 13277 (Mar. 7, 2011) (establishing 

a process to review on a periodic basis the continued discretionary exercise of existing detention authority for certain 

individuals detained at Guantanamo Bay, Cuba); Paul Wolfowitz, Deputy Secretary of Defense, Order Establishing 

Combatant Status Review Tribunal, Jul. 7, 2004, as amended 2006 (establishing an administrative process to review 

the detention of foreign nationals held as enemy combatants at Guantanamo Bay, Cuba).
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V – The Conduct of Hostilities

Chapter Contents

5.1 Introduction

5.2 Overview of Rules for the Protection of Civilians

5.3 Assessing Information Under the Law of War

5.4 Rules on Conducting Assaults, Bombardments, and Other Attacks

5.5 Discrimination in Conducting Attacks

5.6 Military Objectives

5.7 Combatants

5.8 Civilians Taking a Direct Part in Hostilities

5.9 Persons Placed Hors de Combat

5.10 Proportionality in Conducting Attacks

5.11 Proportionality – Feasible Precautions in Planning and Conducting Attacks 

to Reduce the Risk of Harm to Protected Persons and Objects

5.12 Proportionality – Prohibition on Attacks Expected to Cause Excessive 

Incidental Harm

5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces

5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and 

Objects by the Party Subject to Attack

5.15 Undefended Cities, Towns, and Villages

5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or 

Impede Military Operations

5.17 Seizure and Destruction of Enemy Property

5.18 Protection of Cultural Property During Hostilities

5.19 Sieges and Encircled Areas

5.20 Starvation

5.21 Overview of Good Faith, Perfidy, and Ruses

5.22 Treachery or Perfidy Used to Kill or Wound

5.23 Use of Enemy Flags, Insignia, and Military Uniforms

5.24 Improper Use of Certain Signs

5.25 Ruses of War and Other Lawful Deceptions

5.26 Non-Forcible Means and Methods of Warfare

5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the 

Operations of War Directed Against Their Own Country

5.1 INTRODUCTION

The right of States engaged in armed conflict to adopt means and methods of warfare is 

not unlimited.1 This Chapter addresses the law of war rules on the conduct of hostilities during 

international armed conflict, such as the rules applicable to conducting attacks, the seizure and 

destruction of enemy property, and deception.

 1 Refer to § 2.6.2.1 (Acceptance That Belligerent Rights Are Not Unlimited).
185

This Chapter, however, does not address all rules related to the conduct of hostilities. For 

example, rules on the use of certain types of weapons are addressed in Chapter VI.2

 In addition,

later chapters address conduct of hostilities rules and issues specific to the Naval (Chapter XIII), 

Air (Chapter XIV), Space (Chapter XIV), and Cyber (Chapter XVI) domains, and Chapter XVIII 

addresses non-international armed conflict.

3

Violations of the rules in the conduct of hostilities may be violations of criminal law, 

although it is not a purpose of this Chapter to address liability under criminal law.

5.1.1 Notes on Terminology – “Means and Methods of Warfare”. In general, method of 

warfare has referred to how warfare is conducted, while means of warfare has referred to 

weapons or devices used to conduct warfare.

4

For example, an analysis of a method of warfare might consider the way in which an

artillery projectile may be employed, particularly where employment could have an adverse 

effect on the civilian population. On the other hand, an analysis of the legality of the means of 

warfare might consider the legality of the way in which the artillery projectile is designed to kill 

or injure enemy combatants.5

Although the terms means of warfare and methods of warfare lack an established, 

specific meaning, in some cases, the phrase “method of warfare” may be a term of art in a legal 

instrument that has been specifically interpreted by the United States. For example, the 

Chemical Weapons Convention obligates Parties to undertake not to use riot control agents as a 

“method of warfare,” and the United States has interpreted that prohibition not to include certain 

uses of riot control agents.

6

5.1.2 Implementation of Law of War Obligations in the Conduct of Hostilities During 

 2 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

3 Refer to § 13.3 (Overview of Rules for Naval Engagements); § 14.8 (Attacks Against Military Objectives in the 

Air); § 14.9 (Air Attacks Against Military Objectives on the Ground); § 16.5 (Cyber Operations and Jus in Bello); § 

17.7 (Rules on Conducting Attacks in NIAC).

4 See, e.g., W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, 

Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in

THE ARMY LAWYER 33, 34-35 (Jun. 1997) (“Method of warfare is one of two historic phrases in the law of war. 

Although neither phrase has an agreed definition, means of warfare traditionally has been understood to refer to the 

effect of weapons in their use against combatants, while method of warfare refers to the way weapons are used in a 

broader sense.”); ICRC AP COMMENTARY 621 (¶1957) (“The term ‘means of combat’ or ‘means of warfare’ (cf. 

Article 35 – Basic rules) generally refers to the weapons being used, while the expression ‘methods of combat’ 

generally refers to the way in which such weapons are used.”).

5 See W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, 

Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in

THE ARMY LAWYER 33, 35 (Jun. 1997) (“Thus, means considers the legality of the way in which a projectile or its 

fragments, for example, kill or injure combatants. As an illustration, Protocol I of the UNCCW makes the use of 

fragments not detectable by X-ray a prohibited means of warfare. In contrast, method weighs the way in which 

weapons may be employed, particularly where employment may have an adverse effect on civilians not taking a 

direct part in the hostilities.”).

6 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).
186

Military Operations. The law of war rules for the conduct of hostilities have been implemented 

during military operations through rules of engagement and other military orders.7

5.1.2.1 Applying Standards in the Conduct of Hostilities That Pose More 

Restrictions on Military Operations and That Are More Protective of Civilians Than Required 

By the Law of War. U.S. military operations are routinely subject to more restrictions and apply 

standards that are more protective of civilians than required by the law of war.8 For example, 

military commanders often seek to reduce the risk of civilian casualties by taking additional 

precautions even when such measures are not required by the law of war.9

 Similarly, there are 

cases in which, for military or policy reasons, an attack is not conducted, even though the attack 

would be legally permissible.10

As with other cases in which a higher standard is applied as a matter of policy, violations 

of such standards are not necessarily violations of the law of war.11

5.1.2.2 Applicability of International Obligations to Persons With the Domestic 

Authority to Implement the Obligations. As with other aspects of the law of war, the persons 

 7 Refer to § 1.6.5 (Rules of Engagement (ROE)); § 18.7 (Instructions, Regulations, and Procedures to Implement and 

Enforce the Law of War).

8 For example, Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian 

Casualties in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, § 1 (Jul. 1, 2016) (“The 

protection of civilians is fundamentally consistent with the effective, efficient, and decisive use of force in pursuit of 

U.S. national interests. Minimizing civilian casualties can further mission objectives; help maintain the support of 

partner governments and vulnerable populations, especially in the conduct of counterterrorism and 

counterinsurgency operations; and enhance the legitimacy and sustainability of U.S. operations critical to our 

national security. As a matter of policy, the United States therefore routinely imposes certain heightened policy 

standards that are more protective than the requirements of the law of armed conflict that relate to the protection of 

civilians.”).

9 For example, Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International

Law: International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“As a matter of 

international law, the United States is bound to adhere to the law of armed conflict. In many cases, the United States 

imposes standards on its direct action operations that go beyond the requirements of the law of armed conflict. For 

example, the U.S. military may impose an upper limit as a matter of policy on the anticipated number of noncombatant casualties that is much lower than that which would be lawful under the rule that prohibits attacks that are 

expected to cause excessive incidental harm.”).

10 For example, FINAL REPORT ON THE PERSIAN GULF WAR 615 (“Similar actions were taken by the Government of 

Iraq to use cultural property to protect legitimate targets from attack; a classic example was the positioning of two 

fighter aircraft adjacent to the ancient temple of Ur (as depicted in the photograph in Volume II, Chapter VI, ‘Off 

Limits Targets’ section) on the theory that Coalition respect for the protection of cultural property would preclude 

the attack of those aircraft. While the law of war permits the attack of the two fighter aircraft, with Iraq bearing 

responsibility for any damage to the temple, Commander-in-Chief, Central Command (CINCCENT) elected not to 

attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent 

to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting 

the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other 

cultural property similarly remained on the Coalition no-attack list, despite Iraqi placement of valuable military 

equipment in or near those sites.”).

11 Refer to § 18.7.2.3 (Setting Higher Standards as a Matter of Policy).
187

within a party to a conflict who are responsible for implementing an obligation, are those persons 

with the authority to make the decisions and judgments required by the law of war.12

For example, the decisions and judgments required by the principle of proportionality 

normally require authority over military operations, and ordinarily would not require military 

personnel to take actions, such as providing warnings, when a superior commander has already 

determined that such actions are not feasible.

13 As another example, a pilot generally would be 

entitled to rely on the determination by headquarters that a given target is, in fact, a military 

objective.14

5.1.3 Principles for the Conduct of Hostilities. The principles that provide the foundation 

for the law of war are discussed in Chapter II, and these principles apply to the conduct of 

hostilities. As noted in Chapter II, specific rules on the conduct of hostilities are derived from, 

and must be interpreted consistent with, the basic principles that underlie the law of war.15 

Moreover, where no specific rule applies, law of war principles provide a general guide for 

conduct during war, including the conduct of hostilities.

16

5.2 OVERVIEW OF RULES FOR THE PROTECTION OF CIVILIANS

The protection of civilians17 against the harmful effects of hostilities is one of the main 

purposes of the law of war.18 Many of the rules for the protection of civilians are derived from 

the principles of distinction and proportionality.19 Specific rules for the protection of civilians 

may be grouped into two categories: (1) essentially negative duties to respect civilians and to 

refrain from directing military operations against them; and (2) affirmative duties to take feasible 

precautions to protect civilians and other protected persons and objects. 

5.2.1 Responsibility of the Party Controlling Civilian Persons and Objects. The party 

controlling civilians and civilian objects has the primary responsibility for the protection of 

civilians and civilian objects.20 The party controlling the civilian population generally has the 

 12 Refer to § 18.3.1.1 (Implementation of International Obligations by Persons With the Authority to Make the 

Necessary Decisions and Judgments Required by International Law).

13 Refer to § 5.10.2 (Responsibility of Commanders for Implementing the Principle of Proportionality in Conducting 

Attacks).

14 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object and 

not a legitimate military objective. ... It is the opinion of the committee that the aircrew involved in the attack 

should not be assigned any responsibility for the fact they were given the wrong target ... .”).

15 Refer to § 2.1.2.1 (Law of War Principles as an Aid in Interpreting and Applying Law of War Rules).

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

17 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).

18 Refer to § 1.3.4 (Purposes of the Law of War).

19 Refer to § 2.5 (Distinction); § 2.4 (Proportionality).

20 See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 

1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals 

certain general principles including the following: ... (c). That a distinction must be made at all times between 
188

greater opportunity to minimize risk to civilians.21 Civilians also may share in the responsibility 

to take precautions for their own protection.22 For example, civilians may decide to take 

measures for their own protection upon receiving a warning to stay away from military 

objectives.23

5.2.2 Essentially Negative Duties to Respect Civilians and to Refrain From Directing 

Military Operations Against Them. In general, military operations must not be directed against 

enemy civilians.24 In particular: 

• Civilians must not be made the object of attack;

25 

• Military objectives may not be attacked when the expected incidental loss of civilian life,

 

persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared 

as much as possible. ... The principle in (c) addresses primarily the Party exercising control over members of the 

civilian population.”); BOTHE, PARTSCH, & SOLF, NEW RULES 284 (AP I art. 48, ¶2.2) (explaining that “an important 

share of the responsibility for implementing the principle of distinction rests on the Party which controls the civilian 

population.”); United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 

2009, 2575 UNTS 7, 8 (“It is the understanding of the United States of America that, as is true for all civilian 

objects, the primary responsibility for protection of cultural objects rests with the party controlling that property, to 

ensure that it is properly identified and that it is not used for an unlawful purpose.”).

21 FINAL REPORT ON THE PERSIAN GULF WAR 614 (“In the effort to minimize collateral civilian casualties, a 

substantial responsibility for protection of the civilian population rests with the party controlling the civilian 

population. Historically, and from a common sense standpoint, the party controlling the civilian population has the 

opportunity and the responsibility to minimize the risk to the civilian population through the separation of military 

objects from the civilian population, evacuation of the civilian population from near immovable military objects, and 

development of air raid precautions. Throughout World War II, for example, both Axis and Allied nations took each 

of these steps to protect their respective civilian populations from the effects of military operations.”).

22 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“The obligation of distinguishing combatants and military objectives 

from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as 

such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian 

population, consistent with mission accomplishment and allowable risk to the attacking force. A defender must 

exercise reasonable precaution to separate the civilian population and civilian objects from military objectives. 

Civilians must exercise reasonable precaution to remove themselves from the vicinity of military objectives or 

military operations. The force that has control over the civilians has an obligation to place them in a safe place.”); 

Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The 

Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 28 (1907) (“It seems hardly 

necessary to say, however, that if any defense is attempted or if a town is occupied or held by the armed forces of 

the enemy, it ceases to be undefended and, for that reason, may be attacked or fired upon. The inhabitants of such a 

place, so soon as a garrison is established or military defense is attempted, become charged with the knowledge that 

the town is defended and, as such, liable to attack, and, if they desire to secure an immunity from acts of war, should 

remove their families and belongings from the zone of active military operations.”).

23 Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

24 Consider AP I art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects, 

the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between 

civilian objects and military objectives and accordingly shall direct their operations only against military 

objectives.”).

25 Refer to § 5.5.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack).
189

injury to civilians, and damage to civilian objects would be excessive in relation to the 

concrete and direct military advantage expected to be gained;

26 

• Civilians must not be used as shields or as hostages;

27 and

• Measures of intimidation or terrorism against the civilian population are prohibited, 

including acts or threats of violence, the primary purpose of which is to spread terror 

among the civilian population.28

5.2.2.1 Non-Violent Measures That Are Militarily Necessary. The principle that 

military operations must not be directed against civilians does not prohibit military operations 

short of violence that are militarily necessary. For example, such operations may include: 

• stopping and searching civilians for weapons and to verify that they are civilians;

29

• temporarily detaining civilians for reasons of mission accomplishment, self-defense, or 

for their own safety;

30

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

27 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

28 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

29 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“You may 

stop civilians and check their identities, search for weapons and seize any found.”). Compare § 10.6.1 (General 

Authority of a Belligerent to Search and Secure Protected Persons and Their Property).

30 For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure 

to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14, 

2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain 

persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”); 

Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), reprinted in

CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S.

ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 

2001 - 1 MAY 2003) 314 (2004) (“Detain civilians if they interfere with mission accomplishment or if required for 

self-defense.”); 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“Detain 

civilians when necessary to accomplish your mission or for their own safety.”); CENTER FOR LAW AND MILITARY 

OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY 

OPERATIONS IN KOSOVO, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 102-03 (2001) (“Based on the 

KFOR [Kosovo Force] guidance, Task Force Falcon instructed U.S. soldiers and Marines to detain persons who 

committed criminal misconduct under a familiar standard, the Uniform Code of Military Justice (UCMJ). This was 

the standard to be applied during each of the 1,300 patrols that U.S. soldiers conducted per week in Kosovo. If 

soldiers or Marines witnessed an act that would be a crime under the UCMJ, they arrested the wrongdoer. 

COMKFOR and the SRSG augmented crimes under the military code with mission-specific unauthorized acts, such 

as weapons, uniform, and curfew violations. Soldiers were also authorized to detain local citizens who were 

considered a threat to the military or to the overall mission.”).
190

• collecting intelligence from civilians, including interrogating civilians;31

• restricting the movement of civilians or directing their movement away from military 

operations for their own protection;

32 or

• seeking to influence enemy civilians with propaganda.33

5.2.2.2 Military Operations Intended to Benefit Civilians. The principle that 

military operations not be directed against civilians does not preclude military operations 

intended to benefit civilians. Such operations may include humanitarian assistance operations, 

noncombatant evacuation operations, civil affairs operations, or civil-military operations. 

During counter-insurgency operations, military operations to protect civilians and to help obtain 

their support may be particularly important.34

5.2.3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and 

Other Protected Persons and Objects. Parties to a conflict must take feasible precautions to 

reduce the risk of harm to the civilian population and other protected persons and objects.35 

Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken

when planning and conducting attacks.36 Feasible precautions should be taken to mitigate the 

burden on civilians when seizing or destroying enemy property.37 It is specifically provided that 

feasible precautions must be taken in connection with certain types of weapons.38 Feasible 

precautions to reduce the risk of harm to civilians must also be taken by the party subject to 

 31 Refer to § 5.26.2 (Information Gathering).

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

33 Refer to § 5.26.1.2 (Propaganda Generally Permissible).

34 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect 

Them).

35 See, e.g., Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States 

Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva 

Conventions at the Sixth Annual American Red Cross-Washington College of Law Conference on International 

Humanitarian Law (Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 

426-27 (1987) (“We support the principle that all practicable precautions, taking into account military and 

humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and 

damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the 

civilian population, unless circumstances do not permit.”); U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic 

Principles for the Protection of Civilian Populations in Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the 

conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, 

and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.”). Refer to § 

5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).

36 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

37 Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).

38 Refer to § 5.2.3.4 (Requirements to Take Precautions Regarding Specific Weapons).
191

attack.

39 

5.2.3.1 Feasible Precautions – Notes on Terminology. Although this manual 

primarily uses “feasible,” other adjectives have been used to describe the obligation to take 

feasible precautions during armed conflict. The words “practicable,”40 “reasonable,”41 “due,”42

and “necessary”43 have been used to describe this obligation.

Some sources may distinguish between whether a precaution is “feasible” or 

“reasonable” or “practical.”44 It is also possible to use these words interchangeably with one 

another, e.g., such that feasible precautions are reasonable precautions.45

 39 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

40 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426-27 (1987) (“We 

support the principle that all practicable precautions, taking into account military and humanitarian considerations, 

be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and 

civilian objects, and that effective advance warning be given of attacks which may affect the civilian population, 

unless circumstances do not permit.”).

41 See, e.g., U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“A defender must exercise reasonable precaution to separate the 

civilian population and civilian objects from military objectives.”); 1956 FM 27-10 (Change No. 1 1976) ¶41 

(“Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the 

objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but 

also that these objectives may be attacked without probable losses in lives and damage to property disproportionate 

to the military advantage anticipated.”); Neville Chamberlain, Prime Minster, United Kingdom, Statement before the 

House of Commons, Jun. 21, 1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937 (“[R]easonable care must 

be taken in attacking those military objectives so that by carelessness a civilian population in the neighbourhood is 

not bombed.”).

42 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of the 

Amended Mines Protocol) to destroy any stock of food or drink that is judged likely to be used by an enemy military 

force, if due precautions are taken for the safety of the civilian population.”).

43 U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic Principles for the Protection of Civilian Populations in 

Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the conduct of military operations, every effort should be 

made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid 

injury, loss or damage to civilian populations.”); HAGUE IX art. 5 (“In bombardments by naval forces all the 

necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for 

artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are 

collected, on the understanding that they are not used at the same time for military purposes.”).

44 ICRC AP COMMENTARY 688 (¶2230) (“It should be noted that ‘all reasonable precautions’ must be taken, which 

is undoubtedly slightly different from and a little less far-reaching than the expression ‘take all feasible 

precautions’, used in paragraph 2. As the nuance is tenuous, the purpose of the provision appears to be to reaffirm 

the rules that exist to protect civilians in such situations.”).

45 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 
192

Insofar as these words are used to describe the legal obligation to take precautions, these 

words are used as terms of art that do not necessarily take their ordinary meaning and are subject 

to a substantial degree of interpretation and discretion in their application to a given 

circumstance.

Thus, this manual does not distinguish between, for example, the obligation to take 

“reasonable” precautions versus the obligation to take “feasible” precautions versus the 

obligation to take “practical” precautions. This manual uses “feasible” to mean the standard of 

precautions that are required by the law of war, and that standard is explained in more detail in 

this section.

Some sources describe the obligation to take precautions as one in which “all feasible” 

precautions must be taken or that “everything feasible” must be done. Stating the requirement in 

terms of “all feasible” precautions could entail articulating a narrower interpretation of what is 

considered “feasible” rather than articulating a difference in what the law ultimately requires. In 

any event, as discussed below, the obligation to take feasible precautions does not require 

everything that is capable of being done – a standard that would be almost impossible to meet if 

interpreted literally and that is inconsistent with the definition of feasible precautions that 

provides for taking into account humanitarian and military considerations. In addition, the fact 

that a precaution was taken does not necessarily mean that taking the precaution was required as 

a matter of law.

5.2.3.2 What Precautions Are Feasible. The standard for what precautions must 

be taken is one of due regard or diligence, not an absolute requirement to do everything 

possible.46 A wanton disregard for civilian casualties or harm to other protected persons and 

objects is clearly prohibited.47

Feasible precautions are those that are practicable or practically possible, taking into 

account all circumstances ruling at the time, including humanitarian and military 

 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent with 

mission accomplishment and allowable risk to attacking forces.”).

46 See also Neville Chamberlain, Prime Minster, United Kingdom, Statement before the House of Commons, Jun. 21, 

1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937-939 (“[R]easonable care must be taken in attacking 

those military objectives so that by carelessness a civilian population in the neighbourhood is not bombed. ... I say 

that reasonable care must be taken, in attacking military objectives, not to go outside those objectives, but it is 

extremely difficult in practice to determine whether in fact the dropping of bombs which have killed civilians in the 

neighbourhood of military objectives is the result of want of care or not. Suppose a man makes a bad shot, which is 

not at all unlikely when machines are going at over 300 miles an hour and when, as I am informed, in taking aim 

you have to release the bomb miles away from its objective—it seems to me that it is extremely difficult to lay down 

exactly the point at which reasonable care turns into unreasonable want of care.”).

47 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2064 (“While it is difficult to weigh the possibility of collateral civilian 

casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at 

all levels of the targeting process. Combat is a give-and-take between attacker and defender, and collateral civilian 

casualties are likely to occur notwithstanding the best efforts of either party. What is prohibited is wanton disregard 

for possible civilian casualties.”).
193

considerations.

48 These circumstances may include: 

• the effect of taking the precaution on mission accomplishment;49

• whether taking the precaution poses a risk to one’s own forces or presents other security 

risks;

• the likelihood and degree of humanitarian benefit from taking the precaution;

• the cost of taking the precaution, in terms of time, money, or other resources; or

• whether taking the precaution forecloses alternative courses of action.

For example, a commander may determine that a precaution would not be feasible 

because it would result in increased operational risk (i.e., a risk of failing to accomplish the 

 48 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(5) (“‘Feasible precautions’ are those precautions which 

are practicable or practically possible taking into account all circumstances ruling at the time, including 

humanitarian and military considerations.”); CCW AMENDED MINES PROTOCOL art. 3(10) (“Feasible precautions are 

those precautions which are practicable or practically possible taking into account all circumstances ruling at the 

time, including humanitarian and military considerations.”); CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR

art. 5(1) (“Feasible precautions are those precautions which are practicable or practicably possible, taking into 

account all circumstances ruling at the time, including humanitarian and military considerations.”). Cf. United 

Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“The United Kingdom understands 

the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into 

account all circumstances ruling at the time, including humanitarian and military considerations.”); Canada, 

Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the understanding of the Government 

of Canada that, in relation to Articles 41, 56, 57, 58, 78 and 86 the [word] ‘feasible’ means that which is practicable 

or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military 

considerations.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529 (“The Federal 

Republic of Germany understands the word ‘feasible’ in Articles 41, 56, 57, 58, 78 and 86 of Additional Protocol I 

to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time 

including humanitarian and military considerations.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 

1477 UNTS 300 (“With regard to Article 41, paragraph 3, Article 56, paragraph 2, Article 57, paragraph 2, Article 

58, Article 78, paragraph 1, and Article 86, paragraph 2 of Protocol I: It is the understanding of the Government of 

the Kingdom of the Netherlands that the word ‘feasible’ means that which is practicable or practically possible, 

taking into account all circumstances ruling at the time, including humanitarian and military considerations.”).

49 VI OFFICIAL RECORDS OF THE CDDH 241 (CDDH/SR.42, Explanations of Vote: United States) (“It is the 

understanding of the United States Government that the word ‘feasible’ when used in draft Protocol I, for example 

in Articles 50 and 51, refers to that which is practicable or practically possible, taking into account all circumstances 

at the time, including those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE CDDH

226 (CDDH/SR.42, Explanations of Vote: Germany) (“Finally, we interpret the word ‘feasible’ [in draft article 50 

of Protocol I] as meaning what is practicable or practically possible, taking into account all circumstances at the 

time, including those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE CDDH 211 

(CDDH/SR.42, ¶41) (“Mr. Soysal (Turkey) said that as far as his delegation was concerned, the word ‘feasible’ in 

Article 50 and other articles should be interpreted as related to what was practicable, taking into account all the 

circumstances at the time and those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE 

CDDH 224 (CDDH/SR.42, Explanations of Vote: Canada) (“It is the understanding of the Canadian delegation that 

the word ‘feasible’, when used in this Protocol, for example, in Articles 50 and 51, refers to that which is practicable 

or practically possible, taking into account all circumstances existing at the relevant time, including those 

circumstances relevant to the success of military operations.”).
194

mission) or an increased risk of harm to his or her forces.50

Similarly, taking a precaution would not be required if it is assessed not to yield a 

humanitarian benefit. For example, issuing a warning before an attack would not be required 

when only military objectives are expected to be harmed and civilians are not present.51 

Moreover, it would not be required to use distinctive emblems to identify civilians and civilian 

objects as such, if enemy forces are likely to use that information to direct attacks against those 

civilians and civilian objects.52

Since what precautions are feasible depends greatly on the context and other military 

considerations,53 it would be inaccurate to conclude that specific precautions are required as a 

general rule. For example, there is not a general requirement to use precision-guided

munitions.54 Nonetheless, military commanders must make reasonable efforts to reduce the risk 

of harm to civilians and civilian objects.

5.2.3.3 The Taking of Precautions and Law, Policy, and Practice. There may be 

questions about the extent to which precautions are legally required or are instead policy 

decisions.

The obligation to take feasible precautions is a legal requirement. However, the 

determination of whether a precaution is feasible involves significant policy, practical, and 

military judgments, which are committed to the responsible commander to make in good faith 

based on the available information. In assessing whether the obligation to take feasible 

precautions has been satisfied after the fact, it will be important to assess the situation that the 

commander confronted at the time of the decision and not to rely on hindsight.

As discussed above, it is not the case that the legal requirement to take feasible 

precautions requires whatever may be done. Rather, it is possible for precautions to be taken, as 

a matter of practice or policy, that are not required as a matter of law, and the U.S. military 

frequently has done so.

 50 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent with 

mission accomplishment and allowable risk to attacking forces. While collateral damage to civilian objects should 

be minimized, consistent with the above, collateral damage to civilian objects should not be given the same level of 

concern as incidental injury to civilians. Measures to minimize collateral damage to civilian objects should not 

include steps that will place U.S. and allied lives at greater or unnecessary risk.”).

51 Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

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

53 See, e.g., VI OFFICIAL RECORDS OF THE CDDH 231 (CDDH/SR.42, Explanations of Vote: Italy) (“In several 

places Article 50 speaks of taking all ‘feasible’ precautions. This term is basic to the whole structure of Article 50. 

It indicates that the obligations it imposes are conditional on the actual circumstances really allowing the proposed 

precautions to be taken, on the basis of the available information and the imperative needs of national defence. I 

would like to emphasize that all the foregoing comments relate to all the articles in the section of the Protocol 

concerned, in particular Article 46 as regards the military advantage expected and Articles 46 and 51 as regards the 

meaning of the word ‘feasible’.”).

54 Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).
195

In this connection, it should also be noted that mere poor military judgment (such as 

mistakes or accidents in conducting attacks that result in civilian casualties) is not by itself a 

violation of the obligation to take precautions.

5.2.3.4 Requirements to Take Precautions Regarding Specific Weapons. In 

addition to the general obligation to take feasible precautions to reduce the risk of harm to the 

civilian population and other protected persons and objects, it is specifically provided that 

precautions be taken in connection with certain types of weapons:

• mines, booby-traps, or other devices;

55

• incendiary weapons;56

• laser systems;57 and 

• explosive ordnance.58

5.2.3.5 AP I Obligation to Take Constant Care to Spare Civilians and Civilian 

Objects. Parties to AP I have agreed that “[i]n the conduct of military operations, constant care 

shall be taken to spare the civilian population, civilians and civilian objects.”59 Although this 

obligation is susceptible to a range of interpretations, Parties to AP I may also interpret it in a 

manner that is consistent with the discussion in this section.

5.3 ASSESSING INFORMATION UNDER THE LAW OF WAR

Commanders and other decision-makers must make decisions in good faith and based on 

the information available to them. Even when information is imperfect or lacking (as will 

frequently be the case during armed conflict), commanders and other decision-makers may direct 

and conduct military operations, so long as they make a good faith assessment of the information 

that is available to them at that time.60

5.3.1 Law of War Rules Often Depend on Difficult Factual Assessments. Many of the 

rules for the conduct of hostilities require determinations of fact that may be difficult to make. 

The special circumstances of armed conflict often make an accurate determination of 

 55 Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines, 

Booby-Traps, and Other Devices).

56 Refer to § 6.14.3 (Restrictions on the Use of Incendiary Weapons).

57 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent 

Blindness).

58 Refer to § 6.19.2 (Using Explosive Ordnance); § 6.19.3 (Abandoning Explosive Ordnance).

59 AP I art. 57(1).

60 APPENDIX TO 1985 CJCS MEMO ON AP I 52 (“Commanders and other military personnel who make decisions in 

the fog of war must do so in good faith and on the basis of whatever information they have available at the time. 

Such decisions will almost never be free of ‘doubt,’ either subjective or objective.”).
196

facts very difficult.61 For example, combatants must make decisions while enemy forces are 

attempting to attack them62 and while enemy forces are seeking to deceive them.63 In addition, 

the importance of prevailing during armed conflict64 often justifies taking actions based upon 

limited information that would be considered unreasonable outside armed conflict.65 

Thus, for example, it may be difficult to discern whether a person is a combatant, a 

civilian, or a civilian taking a direct part in hostilities. Similarly, it may be difficult to assess the 

degree to which an object makes an effective contribution to the adversary’s military action or to 

assess the concrete and direct military advantage anticipated from an attack.

5.3.2 Decisions Must Be Made in Good Faith and Based on Information Available at the 

Time. Decisions by military commanders or other persons responsible for planning, authorizing,

or executing military action must be made in good faith and based on their assessment of the 

information available to them at the time.

66 A large number of States have recognized this 

principle.67 This principle has also been reflected in the decisions of courts assessing individual 

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

62 Cf. Brown v. United States, 256 U.S. 335, 343 (1921) (“Detached reflection cannot be demanded in the presence 

of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation 

should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his 

assailant rather than to kill him.”).

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

64 Refer to § 1.4.1 (Object of War).

65 Korematsu v. United States, 323 U.S. 214, 244 (1944) (Jackson, J., dissenting) (“The very essence of the military 

job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. 

Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No 

court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably 

cautious and exacting. Perhaps he should be.”).

66 See United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009, 

2562 UNTS 36, 37 (“[A]ny decision by any military commander, military personnel, or any other person responsible 

for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment 

of the information reasonably available to the person at the time the person planned, authorized, or executed the 

action under review, and shall not be judged on the basis of information that comes to light after the action under 

review was taken.”).

67 See, e.g., Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to Articles 51 

to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, 

deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the 

information from all sources, which is available to them at the relevant time.”); Austria, Statement on Ratification of 

AP I, Feb. 13, 1983, 1289 UNTS 303 (“Article 57, paragraph 2, of Protocol I shall be applied to the extent that, for 

any decision taken by a military commander, the information actually available at the time of the decision is the 

determining factor.”); Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the 

understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military 

commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the 

basis of their assessment of the information reasonably available to them at the relevant time and that such decisions 

cannot be judged on the basis of information which has subsequently come to light.”); Italy, Statement on 

Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“In relation to Articles 51 to 58 inclusive, the Italian 

Government understands that military commanders and others responsible for planning, deciding upon or executing 

attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which 

is available to them at the relevant time.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477 

UNTS 300 (“With regard to Articles 51 to 58 inclusive of Protocol I: It is the understanding of the Government of 
197

responsibility under the law of war, which have declined to second-guess military decisions with 

the benefit of hindsight.

68

The requirement that military commanders and other decision-makers make decisions in 

good faith based on the information available to them recognizes that decisions may be made 

when information is imperfect or lacking, which will often be the case during armed conflict.

5.4 RULES ON CONDUCTING ASSAULTS, BOMBARDMENTS, AND OTHER ATTACKS

Combatants may conduct assaults, bombardments, and other attacks, but a number of 

rules apply to these operations.

5.4.1 Notes on Terminology – Protection From “Attack As Such,” “Being Made the 

Object of Attack,” “Direct Attack,” and “Intentional Attack” Versus Protection From

“Incidental” or “Collateral” Harm. A variety of formulations have been commonly used to 

distinguish between: (1) the protection from being made the object of attack (i.e., the attack is 

purposefully directed against that person or object) and (2) the protection from the incidental 

effects of an attack (i.e., the object or person is not the object of the attack, but is collaterally 

harmed by the attack).

These situations are treated quite differently under the law of war.69 In the former case, it 

 the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or 

executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all 

sources which is available to them at the relevant time;”); Spain, Statement on Ratification of AP I, Apr. 21, 1989, 

1537 UNTS 389, 392 (“It is understood that decisions by military authorities or others with legal powers to plan or 

carry out attacks which might affect civilian personnel goods or other effects, necessarily shall not be made on any 

basis other than that of relevant information available at the time in question and obtained for that purpose.”); 

Switzerland, Statement on Ratification of AP I, Feb. 17, 1982, 1271 UNTS 409 (“The provisions of article 57, 

paragraph 2, create obligations only for battalion or group commanders and higher-echelon commanders. The 

information available to the commanders at the time of the decision shall be the determining factor.”); United 

Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“Military commanders and others 

responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their 

assessment of the information from all sources which is reasonably available to them at the relevant time.”).

68 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1295-96 (“It 

was with this situation confronting him that he [the defendant, Rendulic] carried out the ‘scorched earth’ policy in 

the Norwegian province of Finmark which provided the basis for this charge [of wanton destruction of property] of 

the indictment. ... There is evidence in the record that there was no military necessity for this destruction and 

devastation. An examination of the facts in restrospect can well sustain this conclusion. But we are obliged to judge 

the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the 

exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the 

conclusion reached may have been faulty, it cannot be said to be criminal.”).

69 See, e.g., United States v. Ohlendorf, et al. (The Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE 

THE NMT 411, 467 (“A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked, 

ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it 

inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an 

unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the 

railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both 

in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting 

thereon, dragging out the men, women, and children and shooting them.”).
198

is often said that protected persons and objects are protected “as such,”70 from “direct attack,”71

from “intentional attack,”72 “from attack directed exclusively against them,”73 or from being 

made the “object of attack.”74 Sometimes a combination of these formulations has been used.

In some cases, a text may not use any qualification (e.g., “direct attack” or “as such,”),

but is understood to refer only to the first category of protection. For example, Article 52 of AP 

I provides that “[a]ttacks shall be limited strictly to military objectives.”75 However, this article

has been understood to comprise only an obligation not to direct attacks against civilian objects

and not to address the question of incidental harm resulting from attacks directed against military 

objectives.76

This manual generally uses the phrase “object of attack” to convey the idea that the attack

is being purposefully directed against that person or object.

This manual generally uses the term “incidental harm” to refer to the death or injury to 

civilians, or the destruction of or damage to civilian objects, that is incidentally (but potentially 

knowingly) caused as a collateral consequence of an attack directed against a military 

objective.77

5.4.2 Overview of Rules in Conducting Attacks. Parties to a conflict must conduct 

attacks in accordance with the principles of distinction and proportionality. In particular, the 

following rules must be observed:

 70 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶40a (“Customary international law prohibits the launching of 

attacks (including bombardment) against either the civilian population as such or individual civilians as such.”) 

(emphasis added).

71 2004 UK MANUAL ¶5.3.2 (“A civilian is a non-combatant. He is protected from direct attack and is to be 

protected against dangers arising from military operations.”) (emphasis added).

72 Department of Defense, Report to the Senate and House Appropriations Committees regarding international 

policies and procedures regarding the protection of natural and cultural resources during times of war, Jan. 19, 

1993, reprinted as Appendix VIII in Patrick J. Boylan, Review of the Convention for the Protection of Cultural 

Property in the Event of Armed Conflict (The Hague Convention of 1954) 201, 204 (1993) (“Like any civilian 

object, cultural property is protected from intentional attack so long as it is not used for military purposes, or to 

shield military objectives from attack.”).

73 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶25 (“However, it is a generally recognized rule of international 

law that civilians must not be made the object of attack directed exclusively against them.”) (emphasis added).

74 AP I art. 51(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack.”) 

(emphasis added).

75 AP I art. 52(2).

76 See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The first 

sentence of paragraph 2 prohibits only such attacks as may be directed against non-military objectives; it does not 

deal with the question of collateral damage resulting from attacks directed against military objectives.”); Canada, 

Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“The first sentence of paragraph 2 of the 

Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an 

attack directed against a military objective.”).

77 Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).
199

• Combatants may make military objectives the object of attack, but may not direct attacks 

against civilians, civilian objects, or other protected persons and objects.78

• Combatants must refrain from attacks in which the expected loss of life or injury to 

civilians, and damage to civilian objects incidental to the attack, would be excessive in 

relation to the concrete and direct military advantage expected to be gained.

79

• Combatants must take feasible precautions in planning and conducting attacks to reduce 

the risk of harm to civilians and other persons and objects protected from being made the 

object of attack.

80

• In conducting attacks, combatants must assess in good faith the information that is 

available to them.81

• Combatants may not kill or wound the enemy by resort to perfidy.82

• Specific rules apply to the use of certain types of weapons.83

5.4.3 Assessing Information in Conducting Attacks. Persons who plan, authorize, or 

make other decisions in conducting attacks must make the judgments required by the law of war 

in good faith and on the basis of information available to them at the time.84 For example, a 

commander must, on the basis of available information, determine in good faith that a target is a 

military objective before authorizing an attack against that target. Similarly, the expected 

incidental damage to civilians or civilian objects must be assessed in good faith, given the 

information available to the commander at the time.

In making the judgments that are required by the law of war rules governing attacks, 

persons may rely on information obtained from other sources, including human intelligence or 

other sources of information.

85 For example, in a long-distance attack, a commander may rely

on information obtained from aerial reconnaissance and intelligence units in determining 

 78 Refer to § 5.5 (Discrimination in Conducting Attacks).

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

80 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

81 Refer to § 5.4.3 (Assessing Information in Conducting Attacks).

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

83 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

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

85 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object and 

not a legitimate military objective. ... It is the opinion of the committee ... that it is inappropriate to attempt to 

assign criminal responsibility for the incident to senior leaders because they were provided with wrong information 

by officials of another agency.”).
200

whether to conduct an attack.86

5.4.3.1 Heightened Identification Requirements in Conducting Attacks. Although 

doing so would impose greater restrictions than the requirements of the law of war, applying 

heightened standards of identification may be a policy choice to reduce the risk of incidental 

harm in conducting an attack.87

5.4.3.2 AP I Presumptions in Favor of Civilian Status in Conducting Attacks. In 

the context of conducting attacks, certain provisions of AP I reflect a presumption in favor of 

civilian status in cases of doubt. Article 52(3) of AP I provides that “[i]n case of doubt whether 

an object which is normally dedicated to civilian purposes, such as a place of worship, a house or 

other dwelling or a school, is being used to make an effective contribution to military actions, it 

shall be presumed not to be so used.”88 Article 50(1) of AP I provides that “[i]n case of doubt 

whether a person is a civilian, that person shall be considered to be a civilian.”

Under customary international law, no legal presumption of civilian status exists for 

persons or objects, nor is there any rule inhibiting commanders or other military personnel from 

 86 ICRC AP COMMENTARY 681 (¶2195) (“In the case of long-distance attacks, information will be obtained in 

particular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information 

about enemy military objectives by various means.”).

87 For example, The White House, Office of the Press Secretary, Fact Sheet: U.S. Policy Standards and Procedures 

for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, May 

23, 2013 (In counterterrorism operations, “lethal force will be used outside areas of active hostilities only when the 

following preconditions are met: ... Third, the following criteria must be met before lethal action may be taken: 1) 

Near certainty that the terrorist target is present; 2) Near certainty that non-combatants will not be injured or 

killed;”); Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), 

reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &

SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS 

(11 SEPTEMBER 2001 - 1 MAY 2003) 314 (2004) (“1. On order, enemy military and paramilitary forces are declared 

hostile and may be attacked subject to the following instructions: a. Positive Identification (PID) is required prior to 

engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact 

your next higher commander for decision.”); FINAL REPORT ON THE PERSIAN GULF WAR 177 (“Attack procedures 

specified that if the pilot could not positively identify his target or was not confident the weapon would guide 

properly (because of clouds, for example), he could not deliver that weapon. Several attack sorties were forced to 

return with their bombs for this reason.”); U.S. MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13, 

Military Operations: Rules of Engagement for the Employment of Firepower in the Republic of Vietnam, ¶6a (May 

1971), reprinted in 1975 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“All possible 

means will be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a 

target must be clearly identified as hostile prior to making a decision to place fire on it.”) (“All possible means will 

be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a target must 

be clearly identified as hostile prior to making a decision to place fire on it.”).

88 AP I art. 52(3). See also BOTHE, PARTSCH, & SOLF, NEW RULES 326 (AP I art. 52, ¶2.5.1) (“It should be noted 

that the presumption applies only as to objects which normally do not have any significant military use or purpose. 

The committee deleted from the illustrative list proposed by the ICRC in draft Art. 47, the phrase ‘installations and 

means of transport’, thus indicating an intent by the Conference that the presumption should not apply to objects 

which are of such a nature that their value to military action in combat situations is probable. Means of transport 

and of communication fall into a category where their use for military purposes cannot be excluded through a 

presumption.”).
201

acting based on the information available to him or her in doubtful cases.89 Attacks, however, 

may not be directed against civilians or civilian objects based on merely hypothetical or 

speculative considerations regarding their possible current status as a military objective. In 

assessing whether a person or object that normally does not have any military purpose or use is a 

military objective, commanders and other decision-makers must make the decision in good faith 

based on the information available to them in light of the circumstances ruling at the time.

A legal presumption of civilian status in cases of doubt may demand a degree of certainty 

that would not account for the realities of war.

90 Affording such a presumption could also 

encourage a defender to ignore its obligation to separate military objectives from civilians and 

civilian objects.

91 For example, unprivileged belligerents may seek to take advantage of a legal 

presumption of civilian status.92 Thus, there is concern that affording such a presumption likely 

would increase the risk of harm to the civilian population and tend to undermine respect for the 

law of war.

In applying AP I rules on “doubt,” some Parties to AP I have interpreted these rules in a 

more limited way (e.g., applying a “substantial doubt” standard) than AP I’s text would 

suggest.93

5.4.4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker 

of the Duty to Discriminate in Conducting Attacks. A party that is subject to attack might fail to 

take feasible precautions to reduce the risk of harm to civilians, such as by separating the civilian 

population from military objectives.

94 Moreover, in some cases, a party to a conflict might 

 89 See, e.g., Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf 

conflict, in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 75 (1993) (“[I]t is very 

doubtful that Article 52(3) represents customary international law.”); BOTHE, PARTSCH, & SOLF, NEW RULES 327 

(AP I art. 52, ¶2.5.2) (quoting a Rapporteur’s observation at the Diplomatic Conference that a presumption “will be 

a significant new addition to the law”).

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

91 See FINAL REPORT ON THE PERSIAN GULF WAR 616 (“This language, which is not a codification of the customary 

practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden 

for determining the precise use of an object from the party controlling that object (and therefore in possession of the 

facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores 

the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also 

encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian 

objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.”).

92 See APPENDIX TO 1985 CJCS MEMO ON AP I 53 (rejecting the presumption of civilian status in AP I because 

“[t]his presumption also provides an additional protection for guerillas and other irregulars who may find it 

advantageous to be presumed to be a civilian rather than a combatant.”).

93 See, e.g., 2004 UK MANUAL ¶5.3.4 (“In the practical application of the principle of civilian immunity and the rule 

of doubt, (a) commanders and others responsible for planning, deciding upon, or executing attacks necessarily have 

to reach decisions on the basis of their assessment of the information from all sources which is available to them at 

the relevant time, (b) it is only in cases of substantial doubt, after this assessment about the status of the individual in 

question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt 

does not override the commander’s duty to protect the safety of troops under his command or to preserve the 

military situation.”).

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

Subject to Attack).
202

attempt to use the presence or movement of the civilian population or individual civilians in 

order to shield military objectives from seizure or attack.

95

When enemy persons engage in such behavior, commanders should continue to seek to 

discriminate in conducting attacks and to take feasible precautions to reduce the risk of harm to 

the civilian population and civilian objects.96 However, the ability to discriminate and to reduce 

the risk of harm to the civilian population likely will be diminished by such enemy conduct. In 

addition, such conduct by the adversary does not increase the legal obligations of the attacking 

party to discriminate in conducting attacks against the enemy.97 Violations by the defending 

party are not a basis for that party to assert additional legal rights against the attacking party.98

5.4.5 Permissible Location of Attacks. In general, attacks may be conducted against 

military objectives wherever located, outside neutral territory.99 Attacks, however, may not be 

conducted in special zones established by agreement between the belligerents, such as hospital, 

safety, or neutralized zones.100

Attacks on military objectives in the enemy rear or diversionary attacks away from the 

current theaters or zones of active military operations are lawful.101 The law of war does not 

require that attacks on enemy military personnel or objectives be conducted near ongoing 

fighting, in a theater of active military operations, or in a theater of active armed conflict.102 

 95 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

96 See FINAL REPORT ON THE PERSIAN GULF WAR 615 (“As correctly stated in Article 51(8) of Protocol I, a nation 

confronted with callous actions by its opponent (such as the use of ‘human shields’) is not released from its 

obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage to 

civilian objects. This obligation was recognized by Coalition forces in the conduct of their operations.”).

97 See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 163 (1990) (“While an attacker 

facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to 

minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of the 

illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with 

regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to 

violate the law of war by exposing other innocent civilians to similar risk.”).

98 See, e.g., Charles J. Dunlap Jr., The DoD Law of War Manual and its Critics: Some Observations, 92 U.S. NAVAL 

WAR COLLEGE INTERNATIONAL LAW STUDIES 99-100 (2016) (“To reward a belligerent for flaunting the LoW [law 

of war] in that way is flatly contrary to the principle of international law expressed in the axiom ex injuria non jus 

oritur or ‘legal rights should not be understood to result from the commission of wrongful acts.’ ... Given that the 

law has proven almost totally impotent in restraining today’s adversaries who routinely violate LoW in exquisitely 

barbaric ways, we should be very sensitive to—and resistant of—any reading of the LoW that seems to result in 

privileging such lawbreakers because of their lawbreaking.”).

99 Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of 

Neutrality).

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

101 Refer to § 5.6.7.3 (Definite Military Advantage).

102 John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson 

Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 585 (“There is nothing in international law ... that prohibits 
203

There are many examples of lawful attacks taking place far from where the fighting was 

previously taking place.103

For policy or operational reasons, military orders, such as applicable rules of 

engagement, may limit the locations where attacks on otherwise lawful military objectives may 

be conducted.

5.4.6 Force That May Be Applied Against Military Objectives. In the absence of 

expected harm to civilians and civilian objects or of wanton destruction that is not justified by 

military necessity, the law of war imposes no limit on the degree of force that may be directed 

against enemy military objectives, including enemy military personnel (but not including enemy 

personnel who are placed hors de combat).

104 For example, the principle of military necessity 

does not require that only the minimum force that is actually necessary in a specific situation 

may be used against military objectives.

105 Instead, the broader imperatives of winning the war 

may be considered, and overwhelming force may be used against enemy military objectives.106 

In addition, combatants need not offer opponents an opportunity to surrender before 

 

us from using lethal force against our enemies outside of an active battlefield, at least when the country involved

consents or is unable or unwilling to take action against the threat.”).

103 For example, John D. Negroponte, Letter dated 7 October 2001 from the Permanent Representative of the United 

States of America to the United Nations addressed to the President of the Security Council, U.N. Doc. No. 

S/2001/946 (Oct. 7, 2001) (informing the U.N. Security Council that “the United States of America, together with 

other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence 

following the armed attacks that were carried out against the United States on 11 September 2001” including U.S. 

military operations against al-Qaida and the Taliban in Afghanistan); LOUIS MORTON, UNITED STATES ARMY IN 

WORLD WAR II, THE WAR IN THE PACIFIC, STRATEGY AND COMMAND: THE FIRST TWO YEARS, 269-74 (1962) 

(describing U.S. bombing raid led by Lt. Col. James H. Doolittle on April 18, 1942, against military objectives in 

Tokyo).

104 See Refresher Course for Battalion and Brigade Commanders, ¶11, Appendix B in DEPARTMENT OF THE ARMY 

SUBJECT SCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 16 (Aug. 29, 

1975) (“Nowhere in the law of war will you find a prohibition on shooting—and shooting to kill—the enemy in a 

firefight. On the battlefield the regrettable but necessary reality is kill or be killed. Once the enemy has 

surrendered, however, or otherwise fallen into your hands, there is no need to kill him.”); J. Fred Buzhardt, General 

Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 124 

(1973) (“I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons 

against civilian population or civilians as such, but there is no rule of international law that restrains them from 

using weapons against enemy armed forces or military targets. The correct rule of international law which has 

applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that ‘the loss 

of life and damage to property must not be out of proportion to the military advantage to be gained.’”); ICRC AP

COMMENTARY 620 (¶1953) (“The armed forces and their installations are objectives that may be attacked wherever

they are, except when the attack could incidentally result in loss of human life among the civilian population, 

injuries to civilians, and damage to civilian objects which would be excessive in relation to the expected direct and 

specific military advantage.”).

105 Refer to § 2.2.3.1 (Consideration of the Broader Imperatives of Winning the War).

106 See, e.g., 2007 NWP 1-14M ¶5.3.1 (“It is important to note that the principle of military necessity does not 

prohibit the application of overwhelming force against enemy combatants, units and material consistent with the 

principles of distinction and proportionality.”); AIR FORCE OPERATIONS & THE LAW 16 (2009) (“The prohibition of 

unnecessary suffering does not limit the bringing of overwhelming firepower on an opposing military force in order 

to subdue or destroy it.”).
204

carrying out an attack.107 

In particular, the following practices are not prohibited: (1) surprise attacks; (2) attacks 

on retreating forces; (3) harassing fires; and (4) attacks on specific individuals.

5.4.6.1 Surprise Attacks. The law of war does not prohibit the use of surprise to 

conduct attacks, such as the use of surprise in ambushes, sniper attacks, air raids, and attacks by 

special operations forces carried out behind enemy lines.

108 There is no requirement that an 

enemy combatant must be warned before being attacked.109 Rather, warning requirements apply 

only with respect to the civilian population and certain other protected units, vessels, and 

facilities, such as military medical units and facilities.

110

5.4.6.2 Attacks on Retreating Forces. Enemy combatants remain liable to attack 

when retreating.111 Retreat is not the same as surrender. Retreating forces remain dangerous as 

the enemy force may recover to counterattack, consolidate a new defensive position, or assist the 

war effort in other ways.112 Retreat may also be a ruse.113 Retreating enemy combatants may 

 107 See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“A combatant force involved in an armed conflict is not 

obligated to offer its opponent an opportunity to surrender before carrying out an attack.”).

108 For example, 1958 UK MANUAL ¶115 note 2 (“It is not forbidden to send a detachment or individual members of 

the armed forces to kill, by sudden attack, members or a member of the enemy armed forces. Thus, for instance, the 

raid by a British commando party on the headquarters of General Rommel’s African Army at Beda Littoria in 1943 

was not contrary to the provisions of the Hague Rules. The operation was carried out by military personnel in 

uniform; it had as part of its objective the seizure of Rommel’s operational headquarters, including his own 

residence, and the capture or killing of enemy personnel therein, ... .”); SPAIGHT, WAR RIGHTS ON LAND 87-88 (“A 

surprise attack is a very different thing [from a treacherous one]. When a body of Federal cavalrymen made a 

sudden descent on ‘Hickory Hill’ farm, in which the young Confederate General, W. F. H. Lee (son of the great 

commander, R. E. Lee), was convalescing from a wound, and carried him off as a prisoner of war to Fortress 

Munroe, they were guilty of no treachery under the laws of war. It was a fair and open raid.”).

109 See, e.g., W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General, U.S. 

Army, Memorandum re: Legality of Silencers/Suppressors 6 (Jun. 9, 1995) (“There is no law of war requirement 

that a combatant must be ‘warned’ before he or she is subject to the application of lawful, lethal force. A landmine 

provides no warning; neither does an ambush, a sniper, a machinegun in a concealed defensive position, a Claymore 

munition in a defensive perimeter, a delayed action munition, a naval mine, or many other means or methods of 

warfare. A sentry or personnel in a listening or observation post lawfully may be killed quietly, preferably through 

surprise, by garrote or knife attack. A surface-to-air missile undetected by its targeted aircraft likewise kills by 

surprise.”); W. Hays Parks, Special Assistant for Law of War Matters, Memorandum of Law—Legality of Snipers

(Sept. 29, 1992), reprinted in THE ARMY LAWYER 3 (Dec. 1992) (“The element of surprise is a fundamental 

principle of war, and does not make an otherwise legitimate act of violence unlawful.”).

110 Refer to § 5.11.5.3 (That May Affect the Civilian Population); § 5.11.5.1 (Other Warning Requirements).

111 FINAL REPORT ON THE PERSIAN GULF WAR 632 (“The law of war permits the attack of enemy combatants and 

enemy equipment at any time, wherever located, whether advancing, retreating, or standing still. Retreat does not 

prevent further attack. At the small-unit level, for example, once an objective has been seized and the position 

consolidated, an attacking force is trained to fire upon the retreating enemy to discourage or prevent a 

counterattack.”).

112 See FINAL REPORT ON THE PERSIAN GULF WAR 622 (“It is recognized by military professionals that a retreating 

force remains dangerous. The First Marine Division and its 4,000 attached U.S. Army forces and British Royal 

Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1 

margin, turned its ‘retreat’ into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it, 

... .”).
205

have the same amount of force brought to bear upon them as an attacking military force, and a 

military commander is under no obligation to limit force directed against enemy combatants

because they are, or appear to be, in retreat. 

5.4.6.3 Harassing Fires. Harassing fires against enemy combatants are not 

prohibited. (Such action is clearly distinguishable from attacks to terrorize or otherwise harm the 

civilian population, which are, of course, prohibited.) Harassing fires are delivered on enemy 

locations for the purpose of disturbing enemy forces’ rest, curtailing their movement, or lowering 

their morale.114

5.4.6.4 Attacks on Specific Individuals. Military operations may be directed 

against specific enemy combatants.115 U.S. forces have often conducted such operations.116 

5.4.7 Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declare 

that no quarter will be given.117 This means that it is prohibited to order that legitimate offers of 

surrender will be refused or that detainees, such as unprivileged belligerents, will be summarily 

 113 Refer to § 5.25.2 (Examples of Ruses).

114 APPENDIX TO 1985 CJCS MEMO ON AP I 47 (“Harassing fires are delivered on enemy locations for the purpose of 

disturbing the rest, curtailing the movement, or lowering the morale of troops.”).

115 See, e.g., Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the 

American Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 718 (“First, some have suggested that the very act of 

targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals 

who are part of such an armed group are belligerents and, therefore, lawful targets under international law. ... 

Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader 

harm to civilians and civilian objects.”); 1956 FM 27-10 (Change No. 1 1976) ¶31 (“[The prohibition on killing or 

wounding treacherously reflected the Hague IV Regulations] does not, however, preclude attacks on individual 

soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.”).

116 For example, Barack Obama, Remarks by the President on Osama Bin Laden (May 2, 2011) (“Today, at my 

direction, the United States launched a targeted operation against that compound [suspected of housing Osama Bin 

Laden] in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage 

and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they 

killed Osama bin Laden and took custody of his body.”); George W. Bush, Remarks on the Death of Senior Al 

Qaeda Associate Abu Musab Al Zarqawi, Jun. 8, 2006, 2006-I PUBLIC PAPERS OF THE PRESIDENTS 1099 (describing 

how after “work[ing] tirelessly with their Iraqi counterparts to track down this brutal terrorist,” U.S. “special 

operation forces, acting on tips and intelligence from Iraqis, confirmed Zarqawi’s location” and killed him); JOHN 

MILLER, CARTWHEEL: THE REDUCTION OF RABAUL 44 (Office of the Chief of Military History, Department of the 

Army 1959) (“American intelligence officers had discovered the exact time on 18 April [Admiral] Yamamoto[, 

Commander-in-Chief of the Japanese Combined Fleet,] was due to reach the Buin area ... . [D]isposing of 

Yamamoto would advance the Allied cause, so the Commander, Aircraft, Solomons, was told to shoot him down 

[and did so successfully].”); Henry Pinckney McCain, Adjutant General of the U.S. Army, Telegram to General 

Frederick Funston (Mar. 10, 1916), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED 

STATES WITH THE ADDRESS OF THE PRESIDENT TO CONGRESS DECEMBER 5, 1916 (Department of State 1925) 

(relaying that the “President has directed that an armed force be sent into Mexico with the sole object of capturing 

[Pancho] Villa and preventing any further raids by his band”).

117 HAGUE IV REG. art. 23(d) (noting that it is especially forbidden “[t]o declare that no quarter will be given;”). 

Consider AP I art. 40 (“It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or 

to conduct hostilities on this basis.”).
206

executed.118 Moreover, it is also prohibited to conduct hostilities on the basis that there shall be 

no survivors, or to threaten the adversary with the denial of quarter.119

This rule is based on both humanitarian and military considerations.

120 This rule also 

applies during non-international armed conflict.121

5.4.8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks. 

Combatants have certain obligations to distinguish themselves that include, but are not limited 

to, those times when they conduct attacks.122 For example, militia and volunteer corps must 

wear fixed, distinctive insignia, including when they are conducting attacks.123 In addition, 

combatants may not kill or wound by resort to perfidy.124 Combatants may not fight in the 

enemy’s uniform.125 Lastly, persons engaging in spying or sabotage risk additional penalties 

under the domestic law of enemy States.126

5.4.8.1 Fighting Out of Uniform. Although military operations generally are 

conducted while wearing a uniform or other distinctive emblems, there may be occasions, such 

as a surprise attack by enemy forces, when military personnel are unable to dress in their 

uniforms before resisting the enemy’s assault.127 

Military personnel not in uniform may resist an attack, so long as they are not wearing 

 118 ICRC AP COMMENTARY 476 (¶1595) (“[A]ny order of ‘liquidation’ is prohibited, whether it concerns 

commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, 

parachutists, mercenaries or persons considered to be mercenaries, or other cases.”).

119 ICRC AP COMMENTARY 476 (¶1595) (“It is not only the order to put them to death that is prohibited, but also the 

threat and the execution, with or without orders.”).

120 BOTHE, PARTSCH, & SOLF, NEW RULES 217 (AP I art. 40, ¶2.1) (“A declaration or order that there shall be no 

survivors, or that no prisoners shall be taken, tends to stiffen the adversary’s will to resist and is therefore 

counterproductive to the achievement of the legitimate objectives of a military operations. Moreover, it incites the 

adversary to adopt a similar policy thus causing the conflict to degenerate into unrestrained savagery.”).

121 Refer to § 17.6.1 (Prohibition on Declaring That No Quarter Be Given).

122 See also ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL 

HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 351 (1976) (“What such proposals and statements [made in 

the context of the negotiations for the 1949 Geneva Conventions] do seem to imply, however, is that in areas where 

enemy forces are present (notably in occupied territory) members of independent (or of regular) forces are not 

allowed to appear as part of the peaceful civilian population (e.g., as peasants or workers) while occasionally 

committing hostile acts against the enemy (the ‘day-time civilian, night-time combatant’ -situation).”).

123 Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance).

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

125 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).

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

127 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 101 (“In the second world war, too, there were instances in 

which pilots fought en dishabille. For example, in Kenya a pilot of the South African Air Force happened to be 

wearing nothing but a singlet when Italian bombers approached, and so clad (or unclad) he dashed to his aircraft and 

joined in the fight.”).
207

the enemy’s uniform and do not kill or wound treacherously.128 For example, military personnel

not in uniform who resist an attack, and who do not purposefully seek to conceal their status as 

combatants, commit no violation of the law of war and remain entitled to the privileges of 

combatant status. The normal wearing of uniforms or other distinctive emblems, however, 

should resume as soon as practicable because such wear helps protect the civilian population 

from erroneous attack by helping to distinguish military forces from the civilian population.

129

5.4.8.2 AP I Obligation for Combatants to Distinguish Themselves During Attacks 

or Military Operations Preparatory to an Attack. AP I provides that: “combatants are obliged to 

distinguish themselves from the civilian population while they are engaged in an attack or in a 

military operation preparatory to an attack.”130

The AP I provision only partially describes the obligation under customary international 

law of combatants to distinguish themselves from the civilian population. Under customary 

international law, the obligation of combatants to distinguish themselves is a general obligation 

that the armed forces have as a group and is not limited to times when they are engaged in an 

attack or in a military operation preparatory to an attack.131 Moreover, measures such as wearing 

insignia or other distinctive emblems may be of less practical significance during an attack. 

During an attack, combatants are likely to be distinguishable based on their activities more than 

any insignia or devices they are wearing.

5.5 DISCRIMINATION IN CONDUCTING ATTACKS

Under the principle of distinction, combatants may make enemy combatants and other 

military objectives the object of attack, but may not make the civilian population and other 

protected persons and objects the object of attack.132

5.5.1 Persons, Objects, and Locations That Are Not Protected From Being Made the 

Object of Attack. Combatants may make enemy combatants and other military objectives the 

object of attack.133

5.5.2 Persons, Objects, and Locations That Are Protected From Being Made the Object of

Attack. Persons, objects, and locations that are not military objectives may not be made the 

object of attack. In particular, the following persons and objects may not be made the object of 

attack, unless that protection is specifically forfeited under the circumstances:

• Persons, such as

 128 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms); § 5.22 (Treachery or Perfidy Used to Kill 

or Wound).

129 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to 

Distinguish Themselves From the Civilian Population).

130 AP I art. 44(3).

131 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

132 Refer to § 2.5.2 (Discriminating in Conducting Attacks Against the Enemy).

133 Refer to § 5.6 (Military Objectives).
208

o individual civilians and the civilian population;134

o military medical and religious personnel, including military medical units;

135

o combatants placed hors de combat;

136 and

o parlementaires;

137 and

• Objects and locations, provided they are not military objectives, such as 

o military medical transport, facilities, and equipment;138

o cultural property;139

o historic monuments, museums, scientific, artistic, educational and cultural 

institutions;

140

o places of worship;

o undefended villages, towns, or cities;

141

o hospital and safety zones, and persons and objects within these zones;

142 and

o neutralized zones, and persons and objects within neutralized zones.143

5.6 MILITARY OBJECTIVES

Military objectives refers to persons and objects that may be made the object of attack. 

Certain classes of persons and objects are categorically recognized as military objectives. Apart 

from these classes that are categorically military objectives, other objects are assessed as to 

 134 Refer to § 4.8.2 (Civilians – Conduct of Hostilities).

135 Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities); § 7.8 (Respect and 

Protection of Categories of Medical and Religious Personnel); § 7.10 (Military Medical Units and Facilities).

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

137 Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).

138 Refer to § 7.10 (Military Medical Units and Facilities).

139 Refer to § 5.18 (Protection of Cultural Property During Hostilities).

140 ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions 

shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection 

shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded 

to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well 

as in war.”).

141 Refer to § 5.15 (Undefended Cities, Towns, and Villages).

142 Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).

143 Refer to § 5.14.3.3 (Neutralized Zones).
209

whether they meet the definition of “military objective.”

5.6.1 Military Objective – Notes on Terminology. The term military objective has been

used in various treaties as a term of art to mean a person or object that may lawfully be made the 

object of attack.

144

5.6.1.1 Persons and Objects as Military Objectives. Although enemy combatants 

may be made the object of attack, some sources do not classify persons as military objectives,

and limit the term military objective to objects. 

Definitions of military objectives in treaties have defined the term military objective

insofar as objects (rather than persons) are concerned.

145 In addition, the treaty definitions have 

been written with the purpose of explaining when objects that normally are civilian objects have 

become military objectives under the circumstances.

This manual uses the term military objective to include persons who may be made the 

object of attack.146

5.6.1.2 Dual-Use Objects. Sometimes, “dual-use” is used to describe objects that 

are used by both the armed forces and the civilian population, such as power stations or 

communications facilities. However, from the legal perspective, such objects are either military 

objectives or they are not; there is no intermediate legal category.147 If an object is a military 

objective, it is not a civilian object and may be made the object of attack.148 However, it will be 

appropriate to consider in applying the principle of proportionality the harm to the civilian 

population that is expected to result from the attack on such a military objective.

149

5.6.2 Persons Who Are Military Objectives. Certain classes of persons are military 

 144 See, e.g., CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military 

objectives”); 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (referring to “any important military 

objective constituting a vulnerable point”); GC art. 18 (“In view of the dangers to which hospitals may be exposed 

by being close to military objectives, it is recommended that such [civilian] hospitals be situated as far as possible 

from such objectives.”).

145 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3) (“‘Military objective’ means, so far as objects are 

concerned, any object which ... .”); CCW AMENDED MINES PROTOCOL art. 2(6) (“‘Military objective’ means, so far 

as objects are concerned, any object which ... .”). Consider AP I art. 52(2) (“Attacks shall be limited strictly to 

military objectives. In so far as objects are concerned, military objectives are limited to those objects which ... .”).

146 Refer to § 5.6.2 (Persons Who Are Military Objectives).

147 Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf conflict, 

in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 73 (1993) (“If an object is a 

military objective, it may be attacked (subject to the requirements of the principle of proportionality which are 

discussed in the next section), while if it is a civilian object, it may not be attacked. There is no intermediate 

category of ‘dual use’ objects: either something is a military objective or it is not.”).

148 CCW AMENDED MINES PROTOCOL art. 2(7) (“‘Civilian objects’ are all objects which are not military objectives 

as defined in paragraph 6 of this Article.”).

149 Refer to § 5.10 (Proportionality in Conducting Attacks).
210

objectives and may be made the object of attack.150 These classes of persons include:

• combatants, such as military ground, air, and naval units, or unprivileged belligerents;151

and

• civilians taking a direct part in hostilities.

152

However, the following classes of persons are not military objectives: 

• military medical and religious personnel, unless they commit acts harmful to the 

enemy;153

• military medical units, unless they have forfeited their protected status;154

• combatants placed hors de combat;

155 and

• parlementaires.

156

5.6.3 Objects That Are Military Objectives. Military objectives, insofar as objects are 

concerned, include “any object which by its nature, location, purpose or use makes an effective 

contribution to military action and whose total or partial destruction, capture or neutralization, in 

the circumstances ruling at the time, offers a definite military advantage.”157

This definition of military objective may be viewed as a way of evaluating whether 

military necessity exists to attack an object.

158 It may also be applied outside the context of 

conducting attacks to assess whether the seizure or destruction of an object is justified by 

 150 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military 

objectives”); ICRC AP COMMENTARY 635 (¶2017) (“It should be noted that the definition [of military objective in 

AP I] is limited to objects but it is clear that members of the armed forces are military objectives, ... .”).

151 Refer to § 5.7 (Combatants).

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

153 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

154 Refer to § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object of 

Attack).

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

156 Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).

157 CCW AMENDED MINES PROTOCOL art. 2(6). See also CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3) 

(same); 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means combatants and those objects during 

hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or warsustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would 

constitute a definite military advantage to the attacker under the circumstances at the time of an attack.”). Consider 

AP I art. 52(2) (“In so far as objects are concerned, military objectives are limited to those objects which by 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.”).

158 Refer to § 2.2 (Military Necessity).
211

military necessity.

159

5.6.4 Objects Categorically Recognized as Military Objectives. Two types of objects are 

categorically recognized as military objectives. In other words, the definition of military 

objective is always considered to be met as a matter of law with regard to these objects. Thus, 

these objects may be made the object of attack without specifically applying the analysis 

discussed in § 5.6.5 (Definition of Military Objective for Objects: A Two-Part Test).

5.6.4.1 Military Equipment and Bases. First, certain objects belonging to the 

armed forces and used in military operations are recognized as military objectives.160 This 

includes:

• Military ground, air, and naval equipment (other than identifiable medical equipment or 

transport),

161 including vehicles, ships, weapons, munitions, and supplies, such as

o strategic and tactical integrated air defense systems;

o missile launching equipment and positions; and

o command and control equipment.

• Military bases, such as army, air, and naval bases (other than military medical facilities, 

POW camps, and civilian internee camps), whether used for training, billeting, or staging, 

or offensive or defensive purposes, such as

o headquarters or command and control facilities;

o defense ministries; and

o intelligence facilities.

5.6.4.2 Objects Containing Military Objectives. Second, objects that contain 

military objectives are military objectives.162 For example, 

 159 Refer to § 5.17 (Seizure and Destruction of Enemy Property); § 5.17.2.1 (Using the Military Objective Definition 

to Assess Whether the Seizure or Destruction of Enemy Property Is Justified by Military Necessity).

160 2004 UK MANUAL ¶5.4.1 (“The term ‘military objective’ includes combatant members of the enemy armed 

forces and their military weapons, vehicles, equipment, and installations.”); 2006 AUSTRALIAN MANUAL ¶5.27 

(“The term ‘military objective’ includes combatant members of the enemy armed forces and their military weapons, 

vehicles, equipment and installations.”); 2001 CANADIAN MANUAL ¶407(1) (“The following are generally accepted 

as being military objectives: a. military bases, warehouses, petroleum storage areas, ports and airfields; and b. 

military aircraft, weapons, ammunition, buildings and objects that provide administrative and logistical support for 

military operations.”).

161 For devices to facilitate identification of military medical units, transport, and equipment, refer to § 7.15 (Display 

of the Distinctive Emblem to Facilitate Identification).

162 ROGERS, LAW ON THE BATTLEFIELD 36 (“A civilian object which contains military personnel or things of military 

significance is considered a military objective.”); 2001 CANADIAN MANUAL ¶407(2) (“Civilian vessels, aircraft, 

vehicles and buildings are military objectives if they contain combatants, military equipment or supplies.”). Cf. 
212

• Storage and production sites for military equipment, including

o missile production and storage facilities; and

o nuclear, biological, and chemical weapons research and production facilities; and

• Facilities in which combatants are sheltering or billeting.

163

5.6.5 Definition of Military Objective for Objects: A Two-Part Test. The definition of 

military objective insofar as objects are concerned may be divided into two parts, both of which 

must be met for the object to be considered a military objective: (1) that the object somehow 

makes an effective contribution to military action; and (2) attacking, capturing, or neutralizing

the object, in the circumstances, offers a definite military advantage.

164

Generally, the reason why the object meets the first part of the definition also satisfies the 

second part of the definition. In other words, attacking the object in the circumstances will offer 

a definite military advantage because it seeks to preclude the object from effectively contributing 

to the enemy’s military action. Moreover, the two parts are not necessarily connected because 

the concept of definite military advantage is broader than simply denying the adversary the 

benefit of an object’s effective contribution to its military operations.

165 These broader aspects 

of “military advantage” may also be relevant in evaluating whether an attack is expected to be 

excessive under the principle of proportionality.166

The following discussion elaborates upon the definition of military objective.

5.6.6 By Its Nature, Location, Purpose, or Use Makes an Effective Contribution to 

Military Action. The first part of the test is whether the object, by its nature, location, purpose,

or use makes an effective contribution to the enemy’s military action.

5.6.6.1 Nature, Location, Purpose, or Use. The nature, location, purpose, or use 

of the object may contribute to the object making an effective contribution to the enemy’s 

military action. The issue is whether, in total, an effective contribution is made; one factor alone 

 

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (plants “used to cover, conceal, or camouflage combatants 

or other military objectives,” may be attacked with incendiary weapons).

163 1956 FM 27-10 (Change No. 1 1976) ¶40 (giving as examples of legitimate objects of attack “a place which is 

occupied by a combatant military force or through which such a force is passing,” as well as “[f]actories producing 

munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and 

railroads being used for the transportation of military supplies, and other places devoted to the support of military 

operations or the accommodation of troops”); ICRC AP COMMENTARY 701 (¶2265) (“If combat is taking place 

within a city or a town, and there is fighting from house to house, which is frequently the case, it is clear that the 

situation becomes very different and that any building sheltering combatants becomes a military objective.”).

164 ICRC AP COMMENTARY 635 (¶2018) (“The definition comprises two elements: a) the nature, location, purpose 

or use which makes an effective contribution to military action; b) the total or partial destruction, capture or 

neutralization which in the circumstances ruling at the time offers a definite military advantage. Whenever these 

two elements are simultaneously present, there is a military objective in the sense of the Protocol.”).

165 Refer to § 5.6.7.3 (Definite Military Advantage).

166 Refer to § 5.12.2 (Concrete and Direct Military Advantage Expected to Be Gained).
213

need not provide the effective contribution. In addition, nature, location, purpose, or use need 

not be viewed as mutually exclusive concepts; rather, these concepts may be understood to 

overlap.

“Nature” refers to the type of object and may be understood to refer to objects that are 

per se military objectives. For example, military equipment and facilities, by their nature, make 

an effective contribution to military action.

167 On the other hand, “nature” can also be 

understood to refer to objects that may be used for military purposes as discussed below.

The location of an object may provide an effective contribution to military action. For 

example, during military operations in urban areas, a house or other structure that would 

ordinarily be a civilian object may be located such that it provides cover to enemy forces or 

would provide a vantage point from which attacks could be launched or directed. The word 

“location” also helps clarify that an area of land can be militarily important and therefore a 

military objective.

168

“Use” refers to the object’s present function. For example, using an otherwise civilian 

building to billet combatant forces makes the building a military objective.169 Similarly, using 

equipment and facilities for military purposes, such as using them as a command and control 

center or a communications station, would result in such objects providing an effective 

contribution to the enemy’s military action.

“Purpose” means the intended or possible use in the future.

170 For example, runways at a 

civilian airport could qualify as military objectives because they may be subject to immediate 

military use in the event that runways at military air bases have been rendered unserviceable or 

inoperable.171 Similarly, the possibility that bridges or tunnels would be used to assist in the 

adversary’s military operations in the future could result in such objects providing an effective 

contribution to the enemy’s military action, even though they are not being used at that moment

for such purposes.

5.6.6.2 Make an Effective Contribution to Military Action. The object must make 

or be intended to make an effective contribution to military action; however, this contribution 

need not be “direct” or “proximate.”172 For example, an object might make an effective, but 

 167 ICRC AP COMMENTARY 636 (¶2020) (“A closer look at the various criteria used [i.e., nature, purpose, location, 

or use] reveals that the first refers to objects which, by their nature, make an effective contribution to military 

action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports, 

fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.”). Refer 

to § 5.6.4 (Objects Categorically Recognized as Military Objectives).

168 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

169 Refer to § 5.6.4.2 (Objects Containing Military Objectives).

170 See, e.g., 2006 AUSTRALIAN MANUAL ¶5.29 (“Purpose means the future intended use of an object while ‘use’ 

means its present function.”); 2004 UK MANUAL ¶5.4.4 (“e. ‘Purpose’ means the future intended use of an object 

while ‘use’ means its present function.”).

171 Refer to § 5.6.8.3 (Examples of Military Objectives – Transportation Objects).

172 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.3) (noting that “[m]ilitary objectives must 

make an ‘effective contribution to military action’ ... does not require a direct connection with combat operations” 
214

remote, contribution to the enemy’s military action and nonetheless meet this aspect of the 

definition. Similarly, an object might be geographically distant from most of the fighting and 

nonetheless satisfy this element.

Military action has a broad meaning and is understood to mean the general prosecution of 

the war.

173 It is not necessary that the object provide immediate tactical or operational gains or 

that the object make an effective contribution to a specific military operation. Rather, the 

object’s effective contribution to the war-fighting or war-sustaining capability of an opposing 

force is sufficient.

174 Although terms such as “war-fighting,” “war-supporting,” and “warsustaining” are not explicitly reflected in the treaty definitions of military objective, the United 

States has interpreted the military objective definition to include these concepts.

175

5.6.7 Whose Total or Partial Destruction, Capture, or Neutralization, in the 

Circumstances Ruling at the Time, Offers a Definite Military Advantage. In addition to making 

an effective contribution to the adversary’s military action, the attack of the object must also, in 

the circumstances ruling at the time, offer a definite military advantage for the object to be 

considered a “military objective.”

5.6.7.1 Capture or Neutralization. The definition of military objective 

incorporates considerations beyond whether an object’s destruction is justified. It also 

incorporates considerations of whether the object’s capture and neutralization would offer a 

 and that “a civilian object may become a military objective and thereby lose its immunity from deliberate attack 

through use which is only indirectly related to combat action, but which nevertheless provides an effective 

contribution to the military phase of a Party’s overall war effort.”).

173 ROGERS, LAW ON THE BATTLEFIELD 36 (“The term military action appears to have a wide meaning equating to 

the general prosecution of the war.”).

174 See APPENDIX TO 1985 CJCS MEMO ON AP I 51 (“Under this definition [of military objective in AP I], an area of 

land could, for example, be a military objective, as could political and economic activities that support the enemy’s 

war effort.”); BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.2) (noting that military objectives may 

include “activities providing administrative and logistical support to military operations such as transportation and 

communications systems, railroads, airfields and port facilities and industries of fundamental importance for the 

conduct of the armed conflict.”). Cf. 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means ... those objects 

during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or warsustaining capability of an opposing force.”) (emphasis added).

175 Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International Law: 

International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“In particular, I’d like to spend 

a few minutes walking through some of the targeting rules that the United States regards as customary international 

law applicable to all parties in a NIAC: ... Insofar as objects are concerned, military objectives are those objects 

which by their nature, location, purpose or use make an effective contribution to military action and whose total or 

partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military 

advantage. The United States has interpreted this definition to include objects that make an effective contribution to 

the enemy’s war-fighting or war-sustaining capabilities.”). See also W. Hays Parks, Asymmetries and the 

Identification of Legitimate Military Objectives, in INTERNATIONAL HUMANITARIAN LAW FACING NEW 

CHALLENGES 100 (2007) (“War-sustaining and/or war-fighting reflect State practice. Historical evidence and the 

description of the target sets agreed upon by NATO governments in ALLIED FORCE support the idea that nations 

have, do, and will attack not only an enemy’s war-fighting capability, but also his capacity to sustain the conflict.”); 

Horace B. Robertson, The Principle of the Military Objective in the Law of Armed Conflict, 8 UNITED STATES AIR 

FORCE ACADEMY JOURNAL OF LEGAL STUDIES 35, 50-51 (1997) (comparing the definition of military objective in 

the 1995 Commander’s Handbook on the Law of Naval Operations to the definition of military objective in AP I).
215

military advantage.

Capture refers to the possibility of seizure (rather than destruction), which would confer a 

military advantage. For example, the seizure of a city may be a military objective because of its 

strategic location.176

Neutralization refers to a military action that denies an object to the enemy without 

capturing or destroying it. For example, a specific area of land may be neutralized by planting 

landmines on or around it, and thus denying it to the enemy.177

5.6.7.2 In the Circumstances Ruling at the Time. The attack of the object must,

“in the circumstances ruling at the time,” offer a definite military advantage for the object to be 

considered a military objective.

Nonetheless, the purpose (i.e., future use) of the object can be considered in whether an 

object provides an effective contribution to the adversary’s military action.178 In addition, the 

definite military advantage offered by the attack need not be immediate, but may be assessed in 

the full context of the war strategy.179

5.6.7.3 Definite Military Advantage. “Definite” means a concrete and perceptible 

military advantage, rather than one that is merely hypothetical or speculative.180

The advantage need not be immediate.181 For example, the military advantage in the 

attack of an individual bridge may not be seen immediately (particularly if, at the time of the 

attack, there is no military traffic in the area), but can be established by the overall effort to 

isolate enemy military forces on the battlefield through the destruction of bridges.

“Military advantage” refers to the advantage anticipated from an attack when considered 

as a whole, and not only from its isolated or particular parts.182 Similarly, “military advantage”

 176 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

177 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

178 Refer to § 5.6.6.1 (Nature, Location, Purpose, or Use).

179 Refer to § 5.6.7.3 (Definite Military Advantage).

180 For example, W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in 

INTERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES footnotes 88 and 170 and accompanying text 

(2007) (giving an example of a case in which objects did not meet this standard, “the 25 February 1991 

recommendation by the U.S. Air Force component of US Central Command for an air attack on a Baghdad statue of 

Saddam Hussayn and another statue, consisting of matching sets of arms with crossed swords (modeled on the arms 

of Saddam Hussayn), called the Victory Arch or Crossed Swords Monument,” because the military assessment was 

that such targets were worthless and any value from attacking them was too speculative).

181 See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 

1972, reprinted in 67 AJIL 122, 124 (1973) (“Turning to the deficiencies in the Resolutions of the Institut de Droit 

International, and with the foregoing in view, it cannot be said that Paragraph 2, which refers to legal restraints that 

there must be an ‘immediate’ military advantage, reflects the law of armed conflict that has been adopted in the 

practices of States.”).

182 See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED 

CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800 (2004) (“It is the 
216

is not restricted to immediate tactical gains, but may be assessed in the full context of the war 

strategy.183 

The definite military advantage offered by damaging, destroying, or neutralizing the 

object may result from denying the enemy the ability to use this object in its military operations 

(i.e., to benefit from the object’s effective contribution to the military action). For example, the 

attack or seizure of objects with a common military purpose, such as bridges used, or potentially 

available to be used, in lines of communication would offer a definite military advantage.

The military advantage from an attack is not limited to denying the enemy the benefit of 

that object’s contribution to its military action. For example, in a diversionary attack, the 

military advantage to be gained from attacking an object would result from diverting enemy 

forces’ resources and attention.184 The military advantage from an attack may involve a variety 

of other considerations, including improving the security of the attacking force.

The military advantage from an attack may result from harm to the morale of enemy 

forces.185 Diminishing the morale of the civilian population and their support for the war effort 

does not provide a definite military advantage.

186 However, attacks that are otherwise lawful are 

 

understanding of the Government of the French Republic that the expression ‘military advantage’ contained in 

paragraphs 5(b) of Article 51, 2 of Article 52 and 2(a)(iii) of Article 57, is intended to refer to the advantage 

anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.”); Spain, 

Statement on Ratification of AP I, Apr. 21, 1989, 1537 UNTS 389, 392 (“Articles 51, 52 and 57. It is understood 

that the words ‘military advantage’ in these articles refer to the advantage expected from the attack as a whole and 

not from isolated parts of it.”).

183 See FINAL REPORT ON THE PERSIAN GULF WAR 613 (“‘Military advantage’ is not restricted to tactical gains, but 

is linked to the full context of a war strategy, in this instance, the execution of the Coalition war plan for liberation 

of Kuwait.”). See also Eritrea Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment 

and Related Claims, Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶113 (Dec. 19, 2005) (“The Commission is of 

the view that the term ‘military advantage’ can only properly be understood in the context of the military operations 

between the Parties taken as a whole, not simply in the context of a specific attack. Thus, with respect to the present 

claim, whether the attack on the power station offered a definite military advantage must be considered in the 

context of its relation to the armed conflict as a whole at the time of the attack.”).

184 For example, BOTHE, PARTSCH, & SOLF, NEW RULES 325 (AP I art. 52, ¶2.4.4) (“Thus, prior to the 1944 cross 

channel operation, the Allies attacked a large number of bridges, fuel dumps, airfields and other targets in the Pas de 

Calais. These targets made an effective contribution to German military action in that area. The primary military 

advantage of these attacks anticipated by the Allies, however, was not to reduce German military strength in that 

area, but to deceive the Germans into believing that the Allied amphibious assault would occur in the Pas de Calais

instead of the beaches of Normandy.”); MILITARY ANALYSIS DIVISION, THE UNITED STATES STRATEGIC BOMBING 

SURVEY (PACIFIC): JAPANESE AIR POWER 10 (1946) (“The [Doolittle] raid was too small to do substantial physical 

damage, but its repercussions on the planning level of the high command were considerable. ... [A]ttention was 

focused on the eastern approaches to the home islands, and additional impetus given the prewar plan to attack 

Midway and the Aleutians. ... [T]he Japanese began to implement their plans for air defense of Japan which before 

that time had received scant consideration. ... A total of four Army fighter groups were held in Japan throughout 

1942 and 1943 for the defense of the homeland when the Japanese Navy was urgently demanding that the Army 

send reinforcements to the Solomons.”).

185 Refer to § 5.4.6.3 (Harassing Fires).

186 Cf. LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 528-29 (§214eb) (“It is also probable that till the end of 

the War the aerial bombardment by the Allies did not assume the complexion of bombing for the exclusive purpose 

of spreading terror and shattering the morale of the population at large—though this was the inevitable concomitant 
217

not rendered unlawful if they happen to result in diminished civilian morale.

187

The military advantage expected to be gained from an attack might not be readily 

apparent to the enemy or to outside observers because, for example, the expected military 

advantage might depend on the commander’s strategy or assessments of classified information.

5.6.8 Examples of Objects Often Regarded as Military Objectives. The following types 

of objects generally have met the definition of “military objective” in past conflicts, but may not 

be military objectives in all circumstances: (1) leadership facilities; (2) communications objects; 

(3) transportation objects; (4) places of military significance; and (5) economic objects 

associated with military operations or with war-supporting or war-sustaining industries. 

This list of examples is not exclusive (i.e., an object could fall in more than one category 

in this list), and this list is not exhaustive (i.e., an object outside these categories may nonetheless 

meet the definition of military objective). Lastly, this list is not conclusive, i.e., whether an 

example is, in fact, a military objective, must be assessed according to the definition of military 

objective.

5.6.8.1 Examples of Military Objectives – Leadership Facilities. Facilities used 

by enemy leaders as headquarters for military operations or otherwise to command military 

operations have often been regarded as military objectives.188 In some cases, enemy leaders 

themselves may be made the object of attack.

189

5.6.8.2 Examples of Military Objectives – Communications Objects. 

Communications objects, such as facilities, networks, and equipment that could be used for 

command and control of military operations or intelligence gathering, have often been regarded 

 of strategic target-bombing. Thus what remained of the protection afforded by International Law to the civilian 

population in the matter of aerial bombardment was the principle—generally acknowledged by the Allies, though 

not always capable of being adhered to in practice—that the bombing of towns or purely residential parts of towns 

which were not in any way related to the war efforts of the enemy was unlawful. At the same time abstention from 

such bombing could also be explained by reference to considerations of economy militating against costly 

operations for the sake of achieving purely psychological effect—considerations the disregard of which rendered the 

use by Germany of the flying bomb and long-range projectiles not only unlawful but, in the judgment of many, also 

detrimental to her own war effort.”).

187 For example, Judith A. Miller, Commentary, 78 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 107, 

110 (2002) (“I will readily admit that, aside from directly damaging the military electrical power infrastructure, 

NATO wanted the civilian population to experience discomfort, so that the population would pressure Milosevic and 

the Serbian leadership to accede to UN Security Council Resolution 1244, but the intended effects on the civilian 

population were secondary to the military advantage gained by attacking the electrical power infrastructure.”). Refer 

to § 5.2.2 (Essentially Negative Duties to Respect Civilians and to Refrain From Directing Military Operations 

Against Them).

188 For example, 2006 AUSTRALIAN MANUAL ¶2.8, at 2-5 (“HISTORICAL EXAMPLE—AVOIDING 

COLLATERAL DAMAGE, AFGHANISTAN 2002-2003 ... A major focus in Afghanistan was the leadership. 

This meant targeting residences and road convoys, with difficulties of identification and the consequent acceptance 

of non-combatant casualties as a necessary proportionate risk to achieve the military objective.”).

189 Refer to § 5.7.4 (Leaders).
218

as military objectives.190

5.6.8.3 Examples of Military Objectives – Transportation Objects. Transportation 

objects, including facilities (e.g., port facilities and airfields) and equipment that could be part of 

lines of communication (e.g., highways, railroads, waterways, and bridges connecting military 

forces with logistics depots and storage areas), have often been regarded as military 

objectives.

191

5.6.8.4 Examples of Military Objectives – Places of Military Significance. Areas 

of land that are militarily significant may constitute military objectives.192 For example, anti-

 190 For example, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 

Campaign Against the Federal Republic of Yugoslavia, ¶¶71-72 (Jun. 13, 2000) (“On 23 April 1999, at 0220, 

NATO intentionally bombed the central studio of the RTS (state-owned) broadcasting corporation at 1 Aberdareva 

Street in the centre of Belgrade. ... The bombing of the TV studio was part of a planned attack aimed at disrupting 

and degrading the C3 (Command, Control and Communications) network. In co-ordinated attacks, on the same 

night, radio relay buildings and towers were hit along with electrical power transformer stations.”).

191 For example, DoD statement, Dec. 26, 1966, X WHITEMAN’S DIGEST 427 (“U.S. policy is to target military 

targets only, particularly those which have a direct impact on the movement of men and supplies into South 

Vietnam. These targets include but are not limited to roads, railroads, bridges, road junctions, POL facilities, 

barracks and supply depots. ... In the specific case of Nam Dinh and Phu Li, targets have been limited to railroad 

and highway bridges, railroad yards, POL dumps and air defense sites.”); Report of the United Nations Command 

Operations in Korea for the Period 1 to 15 August 1950, enclosure to Note Dated 2 September 1950 From the 

Permanent Representative of the United States of America to the President of the Security Council Transmitting the 

Third Report of the United Nations Command in Korea in Accordance with the Security Council Resolution of 7 

July 1950 (S/1588), U.N. Doc. S/1756 (Sept. 2, 1950) (“United States Far East Air Force medium bombers struck 

heavy blows at north Korean industrial targets of military significance and at the north Korean transportation 

system. The Korean manufacturing complex, the largest in the Far East, and the oil refinery at Wonsan, have been 

extensively damaged by successive attacks. The marshalling yards in Pyongyang, Wonsan, and Seoul have been 

repeatedly attacked, as have yards of less consequence. A general transportation interdiction program continues 

with destruction of rail and highway bridges along principal lines of communication. The rail and port 

transportation center at Najin-dong was also bombed.”).

192 See, e.g., Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the 

understanding of the Government of Canada in relation to Article 52 that: a. A specific area of land may be a 

military objective if, because of its location or other reasons specified in the Article as to what constitutes a military 

objective, its total or partial destruction, capture or neutralization in the circumstances governing at the time offers a 

definite military advantage, ... .”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529 

(“Article 52 of Additional Protocol I is understood by the Federal Republic of Germany to mean that a specific area 

of land may also be a military objective if it meets all requirements of Article 52, paragraph 2.”); Netherlands, 

Statement on Ratification of AP I, Jun. 26, 1987, 1477 UNTS 300 (“It is the understanding of the Government of the 

Kingdom of the Netherlands that a specific area of land may also be a military objective if, because of its location or 

other reasons specified in paragraph 2, its total or partial destruction, capture, or neutralization in the circumstances 

ruling at the time, offers a definite military advantage;”); New Zealand, Statement on Ratification of AP I, Feb. 8, 

1988, 1499 UNTS 358 (“In relation to Article 52, it is the understanding of the Government of New Zealand that a 

specific area of land may be a military objective if, because of its location or other reasons specified in the Article, 

its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite 

military advantage.”); United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re: 

Article 52 It is the understanding of the United Kingdom that: A specific area of land may be a military objective if, 

because of its location or other reasons specified in this Article, its total or partial destruction, capture or 

neutralization in the circumstances ruling at the time offers definite military advantage; ... .”).
219

tank mines may be laid on such areas in order to block enemy forces’ tanks.

193 Areas of land 

that have been regarded as military objectives have included, for example: 

• road networks;

194

• known or suspected enemy avenues of approach or withdrawal; 

• mountain passes, hills, defiles, and bridgeheads;195 and

• villages, towns, or cities whose seizure is militarily important.

196

5.6.8.5 Examples of Military Objectives – Economic Objects Associated With

Military Operations. Economic objects associated with military operations or with warsupporting or war-sustaining industries have been regarded as military objectives. 

Electric power stations are generally recognized to be of sufficient importance to a 

State’s capacity to meet its wartime needs of communication, transport, and industry so as 

usually to qualify as military objectives during armed conflicts.197

 193 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“The United States understands that an area of land itself can be a legitimate military objective for 

the purpose of the use of landmines, if its neutralization or denial, in the circumstances applicable at the time, offers 

a military advantage.”).

194 See FINAL REPORT ON THE PERSIAN GULF WAR 612 (“A bridge or highway vital to daily commuter and business 

traffic can be equally crucial to military traffic, or support for a nation’s war effort. Railroads, airports, seaports, 

and the interstate highway system in the United States have been funded by the Congress in part because of US 

national security concerns, for example; each proved invaluable to the movement of US military units to various 

ports for deployment to Southwest Asia (SWA) for Operations Desert Shield and Desert Storm. Destruction of a 

bridge, airport, or port facility, or interdiction of a highway can be equally important in impeding an enemy’s war 

effort.”).

195 ROGERS, LAW ON THE BATTLEFIELD 37.

196 For example, MILAN N. VEGO, JOINT OPERATIONAL WARFARE: THEORY AND PRACTICE II-34-II-35 (Reprint of 

1st ed., 2009) (“In purely military terms, a capital is normally an operational objective to be seized or defended. The 

reason is that no enemy’s capital can possibly physically include the enemy’s entire armed forces, or even most of 

the ground forces. Therefore, the defeat of enemy forces defending the capital (and most other large cities as well) 

would normally amount to the accomplishment of an operational objective that in some situations could have 

strategic consequences for the war’s outcome. ... General Mark Clark, the Fifth Army’s commander, was directed 

by President Franklin D. Roosevelt and General George Marshall to take Rome as quickly as possible, and in any 

event before the planned Normandy landing. The Allied troops entered Rome on 6 June 1944, the same day the 

Allied forces landed in Normandy.”).

197 Eritrea Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims, 

Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶117 (Dec. 19, 2005) (“The Commission agrees with Ethiopia that 

electric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its 

wartime needs of communication, transport and industry so as usually to qualify as military objectives during armed 

conflicts. The Commission also recognizes that not all such power stations would qualify as military objectives, for 

example, power stations that are known, or should be known, to be segregated from a general power grid and are 

limited to supplying power for humanitarian purposes, such as medical facilities, or other uses that could have no 

effect on the State’s ability to wage war.”). For example, W. Hays Parks, Air War and the Law of War, 32 AIR 

FORCE LAW REVIEW 1, 168-69 (1990) (“In selecting North Vietnamese power sources for attack, target intelligence 

authorities identified the Lang Chi hydroelectric facility, a Soviet-built, 122,500-kilowatt electric generating plant 
220

Oil refining and distribution facilities and objects associated with petroleum, oil, and 

lubricant products (including production, transportation, storage, and distribution facilities) have 

also been regarded as military objectives.

198

5.7 COMBATANTS

In general, combatants, whether privileged or unprivileged, may be made the object of 

attack, provided they have not been placed hors de combat.

5.7.1 Armed Forces and Groups and Liability to Being Made the Object of Attack. 

Membership in the armed forces or belonging to an armed group makes a person liable to being 

made the object of attack regardless of whether he or she is taking a direct part in hostilities.199 

This is because the organization’s hostile intent may be imputed to an individual through his or 

her association with the organization. Moreover, the individual, as an agent of the group, can be 

assigned a combat role at any time, even if the individual normally performs other functions for 

the group.

200 

Thus, combatants may be made the object of attack at all times, regardless of the 

activities in which they are engaged at the time of attack.201 For example, combatants who are 

 

63 miles up the Red River Valley from Hanoi that was capable of supplying seventy-five percent of the electricity 

for Hanoi’s industrial and defense needs. Without question, it was a valuable target. ... The Lang Chi hydroelectric 

facility was attacked by Air Force F-4 Phantoms using LGB [laser-guided bombs] on 10 June 1972. They placed 

twelve 2000-pound LGB through the roof of the 50-by-100-foot building, thereby destroying the electric generating 

plant without breach of the dam, despite the fact that the roof of the power plant was 100 feet below the top of the 

dam.”).

198 For example, Department of Defense, Report to Congress: Kosovo/Operation Allied Force, After-Action Report, 

82 (Jan. 31, 2000) (“Following the end of Operation Allied Force, NATO released an initial assessment of their 

attack effectiveness against a number of targets. These targets destroyed or significantly damaged include: ... • 

Fifty-seven percent of petroleum reserves; • All Yugoslav oil refineries ... .”); Department of Defense, Report to the 

Senate and House Appropriations Committees regarding international policies and procedures regarding the 

protection of natural and cultural resources during times of war, Jan. 19, 1993, reprinted as Appendix VIII in 

Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict 

(The Hague Convention of 1954) 201, 204 (1993) (“Similarly, natural resources that may be of value to an enemy in 

his war effort are legitimate targets. The 1943 air raids on the Ploesti oil fields in Romania, and the Combined 

Bomber Offensive campaign against Nazi oil, were critical to allied defeat of Germany in World War II, for 

example. What is prohibited is unnecessary destruction, that is, destruction of natural resources that has no or 

limited military value.”).

199 See, e.g., ICRC AP COMMENTARY 1453 (¶4789) (“Those who belong to armed forces or armed groups may be 

attacked at any time.”); GREENSPAN, MODERN LAW OF LAND WARFARE 57 (explaining that “as members of the 

armed forces [non-combat military personnel except for medical personnel and chaplains] are legitimate objects of 

attack by the enemy,”).

200 Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009) (noting that “many members of the armed forces who, 

under different circumstances, would be ‘fighters’ may be assigned to non-combat roles at the time of their 

apprehension” and that “[t]hese individuals are no less a part of the military command structure of the enemy, and 

may assume (or resume) a combat role at any time because of their integration into that structure.”), abrogated on 

different grounds by Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011).

201 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the 

Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3413 (“Combatants are liable to attack at any time or place, 
221

standing in a mess line, engaging in recreational activities, or sleeping remain the lawful object 

of attack, provided they are not placed hors de combat.

202

5.7.1.1 U.S. Practice in Declaring Forces Hostile. In DoD practice, an armed 

force or group may be designated as hostile (also known as declaring the force hostile) in rules of 

engagement. This means that personnel to whom such rules of engagement apply are authorized 

to attack the members of the group. In DoD practice, the authority to designate a group as 

hostile has been limited to only certain officials.203

5.7.2 Categories of Persons Who Are Combatants for the Purpose of Assessing Their 

Liability to Attack. The following categories of persons are combatants who may be made the 

object of attack because they are sufficiently associated with armed forces or armed groups:

• members of the armed forces of a State;204

• members of militia and volunteer corps;205

 

regardless of their activity when attacked. Nor is a distinction made between combat and combat service support 

personnel with regard to the right to be attacked as combatants; combatants are subject to attack if they are 

participating in hostilities through fire, maneuver, and assault; providing logistic, communications, administrative, 

or other support; or functioning as staff planners. An individual combatant’s vulnerability to lawful targeting (as 

opposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such.”) 

(citations omitted).

202 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315-16 (2004) (“1. 

Fire at all members of forces DECLARED HOSTILE. You may immediately fire upon any force that you know to 

be hostile. ... 1. Facts: An enemy unit maneuvers within your weapon range. Response: Shoot to eliminate the 

threat and accomplish the mission. 2. Facts: An unarmed enemy soldier sees you and does nothing but stare at you. 

Response: Shoot to eliminate the threat. The soldier is a member of a Hostile Force and is lawful target.”).

203 For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules of 

Engagement/Standing Rules for the Use of Force for U.S. Forces, A-2, ¶2(b) (June 13, 2005), reprinted in

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &

SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 94 (2014) (“Once a force is declared hostile by appropriate 

authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared 

hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to 

Enclosure A, paragraph 3.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01A, Standing Rules of 

Engagement for US Forces, A-12, ¶6 (Jan. 15, 2000), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, Rules of Engagement (ROE) Handbook 

for Judge Advocates 96 (May 1, 2000) (“6. Declaring Forces Hostile. Once a force is declared hostile by 

appropriate authority, US units need not observe a hostile act or a demonstration of hostile intent before engaging 

that force. The responsibility for exercising the right and obligation of national self-defense and as necessary 

declaring a force hostile is a matter of the utmost importance. All available intelligence, the status of international 

relationships, the requirements of international law, an appreciation of the political situation, and the potential 

consequences for the United States must be carefully weighed. The exercise of the right and obligation of national 

self-defense by competent authority is separate from and in no way limits the commander's right and obligation to 

exercise unit self-defense. The authority to declare a force hostile is limited as amplified in Appendix A of this 

Enclosure.”).

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

205 Refer to § 4.6 (Other Militia and Volunteer Corps).
222

• participants in a levée en masse;

206

• persons belonging to non-State armed groups;207 and

• leaders whose responsibilities include the operational command and control of the armed 

forces or of a non-State armed group.

208

5.7.3 Persons Belonging to Non-State Armed Groups. Like members of an enemy 

State’s armed forces, individuals who are formally or functionally part of a non-State armed 

group that is engaged in hostilities may be made the object of attack because they likewise share 

in their group’s hostile intent.

209

5.7.3.1 Formal Membership. Formal membership in an armed group might be 

indicated by formal or direct information or by other types of information.

In some cases, there might be formal or direct information indicating membership in the 

group. This might include:

• using a rank, title, or style of communication; 

• taking an oath of loyalty to the group or the group’s leader;

• wearing a uniform or other clothing, adornments, or body markings that identify

members of the group; or

• documents issued or belonging to the group that identify the person as a member, such as 

membership lists, identity cards, or membership applications.210

Although in some cases this type of formal or direct information might be available, in 

many cases it will not be available because members of these groups seek to conceal their 

association with that group. In such cases, the following types of information might indicate that 

a person is a member of a non-State armed group:

 206 Refer to § 4.7 (Levée en Masse).

207 Refer to § 5.7.3 (Persons Belonging to Non-State Armed Groups).

208 Refer to § 5.7.4 (Leaders).

209 Cf. Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (“The district court seemed to think it important to 

determine Al-Adahi’s motive for attending the al-Qaida training camp. We do not understand why. Whatever his 

motive, the significant points are that al-Qaida was intent on attacking the United States and its allies, that bin Laden 

had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that Al-Adahi voluntarily 

affiliated himself with al-Qaida.”).

210 Cf. Alsabri v. Obama, 684 F.3d 1298, 1304-05 (D.C. Cir. 2012) (upholding a district court’s determination that 

petitioner was part of the Taliban, al-Qaida, or associated forces, including by considering “an English translation of 

a document appearing to be Alsabri’s application to attend an al Qaeda training camp” and “an English-language 

translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda 

records” that “were captured by Coalition forces from the ‘Director of Al-Qa’ida Security Training Office,’”).
223

• acting at the direction of the group or within its command structure;

• performing a function for the group that is analogous to a function normally performed 

by a member of a State’s armed forces; 

• taking a direct part in hostilities, including consideration of the frequency, intensity, and 

duration of such participation;211

• accessing facilities, such as safehouses, training camps, or bases used by the group that 

outsiders would not be permitted to access;212

• traveling along specific clandestine routes used by those groups;213 or

• traveling with members of the group in remote locations or while the group conducts 

operations.214

5.7.3.2 Functional Membership. Some non-State armed groups might not be 

organized in a formal command structure, as generally is required for POW status during 

international armed conflict.215 Such groups might lack a formal distinction between those 

 211 Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

212 Cf. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir. 2012) (“[I]t is difficult to believe that ‘Taliban fighters 

would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of 

the Taliban.’”) (quoting Alsabri v. Obama, 764 F.Supp.2d 60, 94 (D.D.C. 2011)); Uthman v. Obama, 637 F.3d 400, 

406 (D.C. Cir. 2011) (“In two prior cases, this Court has stated that staying at an al Qaeda guesthouse is ‘powerful—

indeed ‘overwhelming’—evidence’ that an individual is part of al Qaeda. Al–Adahi, 613 F.3d at 1108 (quoting Al–

Bihani v. Obama, 590 F.3d 866, 873 footnote 2 (D.C. Cir. 2010)) (alterations omitted). The reason for that 

assessment is plain: It is highly unlikely that a visitor to Afghanistan would end up at an al Qaeda guesthouse by 

mistake, either by the guest or by the host.”).

213 Cf. Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C. Cir. 2012) (“There is no dispute that Suleiman’s travel was 

initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to 

Afghanistan frequently used by Taliban recruits. We have stated that such travel may indicate that an individual 

traveled to Afghanistan to join the Taliban.”) (citing Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010)); 

Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“[T]raveling to Afghanistan along a distinctive path used by 

al Qaeda members can be probative evidence that the traveler was part of al Qaeda.”); Al Odah v. United States, 611 

F.3d 8, 16 (D.C. Cir. 2010) (finding it significant that “Al Odah traveled to Afghanistan on a series of one-way plane 

tickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to join the 

Taliban and al Qaeda”).

214 Cf. Hussain v. Obama, 718 F.3d 964, 968-69 (D.C. Cir. 2013) (“Evidence that Hussain bore a weapon of war 

while living side-by-side with enemy forces on the front lines of a battlefield at least invites — and may very well 

compel — the conclusion that he was loyal to those forces. We have repeatedly affirmed the propriety of this 

common-sense inference.”); Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“Being captured in the 

company of a Taliban fighter and two al Qaeda members and Osama bin Laden bodyguards 12 miles from Tora 

Bora in December 2001 might not be precisely the same as being captured in a German uniform 12 miles from the 

Normandy beaches in June 1944. But it is still, at a minimum, highly significant. And absent a credible alternative 

explanation, the location and date of Uthman’s capture, together with the company he was keeping, strongly suggest 

that he was part of al Qaeda.”).

215 Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).
224

members and non-members who nonetheless participate in the hostile activities of the group.

216 

An individual who is integrated into the group such that the group’s hostile intent may be 

imputed to him or her may be deemed to be functionally (i.e., constructively) part of the group, 

even if not formally a member of the group. The integration of the person into the non-State 

armed group and the inference that the individual shares the group’s intention to commit hostile 

acts distinguish such an individual from persons who are merely sympathetic to the group’s 

goals.217

The following may indicate that a person is functionally a member of a non-State armed 

group: 

• following directions issued by the group or its leaders;218

• taking a direct part in hostilities on behalf of the group on a sufficiently frequent or 

intensive basis;219 or

• performing tasks on behalf of the group similar to those provided in a combat, combat 

support, or combat service support role in the armed forces of a State. 

5.7.3.3 Dissociation or Renunciation. A person may not be made the object of 

attack based on his or her association with a non-State armed group if that association has clearly 

been severed. Relevant factors in determining when an individual has unambiguously ceased to 

be a member of a non-State armed group may include: 

• whether the individual has formally ceased to be a member of the group, such as by filing 

relevant paperwork or by otherwise formally renouncing any allegiance to the group;

• whether there are concrete and verifiable facts or persuasive indicia that he or she has 

affirmatively returned to peaceful pursuits, such as by participating in a reconciliation 

program and swearing an oath of loyalty to the government; and

• the amount of time that has passed since the person participated in the activities of the 

group in question, if coupled with other indicia of dissociation or renunciation.220

 216 Compare § 4.7 (Levée en Masse).

217 Compare § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

218 Cf. Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011) (“[D]emonstrating that someone is part of al Qaeda’s 

command structure is sufficient to show that person is part of al Qaeda.”); Al-Adahi v. Obama, 613 F.3d 1102, 1109 

(D.C. Cir. 2010) (“When the government shows that an individual received and executed orders from al-Qaida 

members in a training camp, that evidence is sufficient (but not necessary) to prove that the individual has affiliated 

himself with al-Qaida.”); Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (“Evidence that an individual 

operated within al-Qaida’s command structure is ‘sufficient but is not necessary to show he is ‘part of’ the 

organization.’” (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010))).

219 Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

220 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited 

Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through 
225

The onus is on the person having belonged to the armed group to demonstrate clearly and 

affirmatively to the opposing forces that he or she will no longer participate in the activities of 

the group.221 Moreover, if persons who have dissociated from an armed group rejoin the group 

or fail to cease permanently their participation in hostilities, they may be made the object of 

attack.222

5.7.4 Leaders. Military leaders are subject to attack on the same basis as other members 

of the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on 

the same basis as other members of the group. There is no objection to making a specific enemy 

leader who is a combatant the object of attack.223

Leaders who are not members of an armed force or armed group (including heads of 

State, civilian officials, and political leaders) may be made the object of attack if their 

responsibilities include the operational command or control of the armed forces. For example, as 

the commander-in-chief of the U.S. armed forces, the President would be a legitimate target in 

wartime, as would, for example, the Prime Minister of a constitutional monarchy. In contrast, 

the reigning monarch of a constitutional monarchy with an essentially ceremonial role in State 

affairs may not be made the object of attack.

In addition to leaders who have a role in the operational chain of command, leaders 

taking a direct part in hostilities may also be made the object of attack.224 Planning or 

authorizing a combat operation is an example of taking a direct part in hostilities.225

As a matter of practice, attacks on the national leadership of an enemy State have often 

been avoided on the basis of comity and to help ensure that authorities exist with whom peace 

agreements may be concluded.

 

Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“Relevant factors in 

determining that an individual has ceased to be a member of an organized armed group include the amount of time 

that has passed since that individual has taken relevant action on behalf of the group in question, and whether he or 

she affirmatively has disassociated himself or herself from the organized armed group.”).

221 Wolff Heintschel von Heinegg & Peter Dreist, The 2009 Kunduz Air Attack: The Decision of the Federal 

Prosecutor-General on the Dismissal of Criminal Proceedings Against Members of the German Armed Forces, 53

GERMAN YEARBOOK OF INTERNATIONAL LAW 833, 844-45 (2010) (“Here, the Prosecutor-General takes the 

opportunity to identify different categories of lawful targets under the law of non-international armed conflict. As 

regards fighters belonging to a non-State party to the conflict, their qualification as lawful targets is not based on 

some form of legal status but on the mere fact of their functional integration into an organized armed group. If they 

are so integrated, they do not qualify as civilians even though they may eventually pursue civilian occupation. They 

only regain their civilian status if they clearly and irrevocably renounce their function in the organized armed group. 

Hence, the Prosecutor-General is not prepared to consider Taliban fighters to be lawful targets only insofar and for 

such time as they take a direct part in armed hostilities.”). Compare § 5.9.3 (Persons Who Have Surrendered).

222 Refer to § 5.8.4.2 (No “Revolving Door” Protection); § 5.8.4.1 (Permanently Ceased Participation in Hostilities).

223 Refer to § 5.4.6.4 (Attacks on Specific Individuals).

224 Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

225 Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).
226

5.8 CIVILIANS TAKING A DIRECT PART IN HOSTILITIES

Civilians who take a direct part in hostilities forfeit protection from being made the object 

of attack.

5.8.1 Civilians Taking a Direct Part in Hostilities – Notes on Terminology. This manual 

uses the phrase “direct part in hostilities” to indicate what activities cause a civilian to forfeit his 

or her protection from being made the object of attack. This usage does not mean that the United 

States has adopted the direct participation in hostilities rule that is expressed in Article 51 of AP 

I.

5.8.1.1 “Active” Versus “Direct”. The phrases “active part in hostilities” and

“direct part in hostilities” have been used to describe when civilians forfeit their protection from 

being made the object of attack. As noted above, this manual uses “direct” rather than “active”

in this context, although as discussed below, this usage should not be regarded as indicating a 

substantive difference between “active” and “direct.”

Common Article 3 of the 1949 Geneva Conventions refers to “[p]ersons taking no active 

part in the hostilities.” AP I and AP II use the phrase “direct part in hostilities.”226 In addition, 

AP I uses the phrase “direct part in hostilities” to address other situations apart from the 

protection of civilians.227

Although the words active and direct can mean different things in the English language, 

the terms have sometimes been treated as the same for the purpose of applying the direct 

participation in hostilities rule.

228 One of the reasons for treating the terms the same is that 

although the English language version of the 1949 Geneva Conventions uses “active,” and the 

English language versions of AP I and AP II use “direct,” the French language versions of these 

treaties use the same word, “directement.”229 Because the English and French language versions 

 226 AP I art. 51(3) (“Civilians shall enjoy the protection [from being made the object of attack], unless and for such 

time as they take a direct part in hostilities.”); AP II art. 13(3) (“Civilians shall enjoy the protection [from being 

made the object of attack], unless and for such time as they take a direct part in hostilities.”).

227 See, e.g., AP I art. 43(2) (“Members of the armed forces of a Party to a conflict (other than medical personnel and 

chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to 

participate directly in hostilities”); AP I art. 47(2) (“A mercenary is any person who ... [inter alia] (b) Does, in fact, 

take a direct part in the hostilities ... .”).

228 See, e.g., Prosecutor v. Tadić, ICTY Trial Chamber, IT-94-1-T, Judgment, ¶¶614-15 (May 7, 1997) (“The rules 

contained in paragraph 1 of Common Article 3 proscribe a number of acts which: ... (iii) are committed against 

persons taking no active part in hostilities ... the test the Trial Chamber has applied is to ask whether, at the time of 

the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those 

hostilities in the context of which the alleged offences are said to have been committed. If the answer to that 

question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.”); 

Prosecutor v. Akayesu, ICTR Trial Chamber, ICTR-96-4-T, Judgment, ¶629 (Sept. 2, 1998) (“‘The victims referred 

to in this Indictment were, at all relevant times, persons not taking an active part in the hostilities’. This is a material

averment for charges involving Article 4 inasmuch as Common Article 3 is for the protection of ‘persons taking no 

active part in the hostilities’ (Common Article 3(1)), and Article 4 of Additional Protocol II is for the protection of, 

‘all persons who do not take a direct part or who have ceased to take part in hostilities.’ These phrases are so similar 

that, for the Chamber’s purposes, they may be treated as synonymous.”).

229 GC art. 3, 973 UNTS 289 (“ne participant pas directement aux hostilitiés”).
227

of the 1949 Geneva Conventions, AP I, and AP II are equally authentic, States negotiating these 

treaties may not have intended a difference between “active” and “direct.”230

Another reason for treating the terms “active” and “direct” the same in this context is that 

they are understood to be terms of art addressing a particular legal standard, and there are a range 

of views as to what that legal standard means. Thus, there may be different views about what the 

underlying standard means, even when there is agreement on the appropriate term to describe 

that standard. Accordingly, there seems to be little value in distinguishing between the two 

terms for the purposes of applying this legal rule.

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

Although, as drafted, Article 51(3) of AP I does not reflect customary international law, the 

United States supports the customary principle on which Article 51(3) is based.

231 Similarly, 

although parts of the ICRC’s interpretive guidance on the meaning of direct participation in 

hostilities are consistent with customary international law, the United States has not accepted

significant parts of the ICRC’s interpretive guidance as accurately reflecting customary 

international law.

232 But some States that are Parties to AP I may interpret and apply Article 

51(3) of AP I consistent with the customary international law standard.

5.8.2 Persons to Whom This Rule Applies. For the purpose of applying the rule 

discussed in this section, “civilians” are persons who do not fall within the categories of 

combatants listed in § 5.7.2 (Categories of Persons Who Are Combatants for the Purpose of 

Assessing Their Liability to Attack). Accordingly, for the purposes of this section, “civilians” 

include:

 230 See, e.g., GC art. 150 (“The present Convention is established in English and in French. Both texts are equally 

authentic.”); AP I art. 102 (“The original of this Protocol, of which the Arabic, Chinese, English, French, Russian 

and Spanish texts are equally authentic, shall be deposited with the depositary, which shall transmit certified true 

copies thereof to all the Parties to the Conventions.”); AP II art. 28 (same).

231 See John B. Bellinger, III, Legal Adviser, Department of State, Unlawful Enemy Combatants, Jan.17, 2007, 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 915-16 (“While we agree that there is a general 

principle of international law that civilians lose their immunity from attack when they engage in hostilities, we 

disagree with the contention that the provision as drafted in AP I [Article 51(3)] is customary international law.”); 

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“We 

also support the principle that the civilian population not be used to shield military objectives or operations from 

attack, and that immunity not be extended to civilians who are taking part in hostilities. This corresponds to 

provisions in articles 51 and 52[ of AP I].”).

232 See, e.g., Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a 

Limited Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress 

Through Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 186 (2012) (“From the 

operational perspective, the feedback [on the ICRC’s interpretive guidance] was that the report was too rigid and 

complex, and did not give an accurate picture of State practice or (in some respects) of a practice to which States 

could realistically aspire.”); Al-Bihani v. Obama, 590 F.3d 866, 885 (D.C. Cir. 2010) (Williams, J., concurring) 

(“The work itself explicitly disclaims that it should be read to have the force of law. ... Even to the extent that Al 

Bihani’s reading of the Guidance is correct, then, the best he can do is suggest that we should follow it on the basis 

of its persuasive force. As against the binding language of the AUMF and its necessary implications, however, that 

force is insubstantial.”).
228

• members of the civilian population;

233

• persons authorized to accompany the armed forces;

234 and

• members of the merchant marine and civil aircraft of parties to a conflict.235

5.8.2.1 Persons Belonging to Hostile, Non-State Armed Groups. Some States 

may choose to characterize persons who belong to hostile, non-State armed groups that do not 

qualify for status as lawful combatants as “civilians” who may not be attacked unless they are 

taking a direct part in hostilities. However, these States may also characterize the act of joining 

and remaining a member of an armed group that is engaged in hostilities as a form of taking a 

direct part in hostilities that continuously deprives these individuals of their protection from 

being made the object of attack.236

The U.S. approach has generally been to refrain from classifying those belonging to nonState armed groups as “civilians” to whom this rule would apply. The U.S. approach has been to 

treat the status of belonging to a hostile, non-State armed group as a separate basis upon which a 

person is liable to attack, apart from whether he or she has taken a direct part in hostilities.

237 

Either approach may yield the same result: members of hostile, non-State armed groups may be 

made the object of attack unless they are placed hors de combat. However, practitioners, 

especially when working with coalition partners, should understand that different legal reasoning 

is sometimes applied in reaching that result.

5.8.3 “Taking a Direct Part in in Hostilities”. Unlike the treaty definition of “military 

objective” for objects,238 the United States is not a Party to a treaty with a comparable provision 

defining taking a direct part in hostilities for the purpose of assessing what conduct renders

civilians liable to being made the object of attack.

At a minimum, taking a direct part in hostilities includes actions that are, by their nature 

and purpose, intended to cause actual harm to the enemy.239 Taking a direct part in hostilities 

extends beyond merely engaging in combat and also includes certain acts that are an integral part 

of combat operations or that effectively and substantially contribute to an adversary’s ability to 

 233 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).

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

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

236 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited 

Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through 

Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 193 endnote 22 (2012) (“As discussed 

below, there is a range of views on whether individuals who pass the membership threshold lose their civilian status 

(and are therefore unprivileged belligerents) or remain civilians but are deemed to be continuously taking a direct 

part in hostilities and accordingly continuously lose their protections from being made the object of attack.”).

237 Refer to § 5.7.3 (Persons Belonging to Non-State Armed Groups).

238 Refer to § 5.6.3 (Objects That Are Military Objectives).

239 ICRC AP COMMENTARY 619 (“Thus ‘direct’ participation means acts of war which by their nature or purpose are 

likely to cause actual harm to the personnel and equipment of the enemy armed forces.”).
229

conduct or sustain combat operations.240 However, taking a direct part in hostilities does not 

encompass the general support that members of the civilian population provide to their State’s 

war effort, such as by buying war bonds.

241

Whether an act by a civilian constitutes taking a direct part in hostilities is likely to 

depend highly on the context, such as the weapon systems or methods of warfare employed by 

the civilian’s side in the conflict.

242 For example, in some contexts, training and logistical 

support may be viewed as taking a direct part in hostilities, while in other contexts it might 

not.243 The following considerations may be relevant:244

 240 See GUENTER LEWY, AMERICA IN VIETNAM 232 (1978) (“We know that on occasion in Vietnam women and 

children placed mines and booby traps, and that villagers of all ages and sexes, willingly or under duress, served as 

porters, built fortifications, or engaged in other acts helping the communist forces. It is well established that once 

civilians act as support personnel they cease to be noncombatants and are subject to attack.”).

241 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited 

Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through 

Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“With respect to 

determining what it means to take ‘direct part in hostilities,’ as a threshold matter there seems to be a common view 

that direct participation in hostilities stands in contrast to support by a general population to a nation’s war effort. 

Civilians who are contributing to a nation’s war effort accordingly do not by dint of this alone lose their 

protection.”).

242 See Nils Melzer, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report, 35 

(2005) (“Since, currently, the qualification of a particular act as direct participation in hostilities often depends on 

the particular circumstances and the technology or weapons system employed, it is unlikely that an abstract 

definition of direct participation in hostilities applicable to every situation can be found.”).

243 For example, Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation 

in Hostilities” Interpretive Guidance, 42 N.Y.U. JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 680-81 

(2010) (“For example in Iraq, it has been noted, ‘IED and suicide-bomber cells are essentially combatant units 

themselves,’ where the most technically skilled bomb builder ‘also doubles as a training instructor.’ Further, 

‘bombers do not ‘just turn up to their target’. They need a logistical infrastructure, which consists of individuals ... 

who provide everything from reconnaissance of the potential target ... to the provision of a safe house and food, and 

the explosives-laden vehicle or suicide belt.’ ... To limit direct participation to persons who place or detonate 

explosives is an artificial division of what is fundamentally a group activity. ... The person who is key in planning 

and facilitating such deadly attacks must be a valid target as a direct participant in hostilities ...”) (first and second 

ellipses in original).

244 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited 

Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through 

Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (“Any determination that a civilian 

is taking part in hostilities (and thus loses immunity from being made the object of attack) will be highly situational 

and needs to be made by a decisionmaker taking the following considerations into account: • Nature of the harm: Is 

the individual's activity directed at (i) adversely affecting one party's military capacity or operations or enhancing 

the capacity/operations of the other, or (ii) killing, injuring or damaging civilian objects or persons? 

• Causation/integration between action and harm: Is there a sufficiently direct causal link between the individual's 

relevant act and the relevant harm, or does the act otherwise form an integral part of coordinated action resulting in 

that harm? (Although it is not enough that the act merely occurs during hostilities, there is no requirement that the 

act be only a single causal step removed from the harm.) • Nexus to hostilities: Is the individual's activity linked to 

an ongoing armed conflict and is it intended either to disadvantage one party, or advance the interests of an opposing 

party, in that conflict? ... There is also a range of views about whether each of the foregoing three factors must be 

present in order to make a determination that an individual is directly participating in hostilities (or whether a 

‘totality of the circumstances’ approach should govern), ... . Moreover, there is a range of views concerning the 
230

• the degree to which the act causes harm to the opposing party’s persons or objects, such 

as

o whether the act is the proximate or “but for” cause of death, injury, or damage to 

persons or objects belonging to the opposing party; or

o the degree to which the act is likely to affect adversely the military operations or 

military capacity of the opposing party;

• the degree to which the act is connected to the hostilities, such as

o the degree to which the act is temporally or geographically near the fighting; or

o the degree to which the act is connected to military operations;

• the specific purpose underlying the act, such as 

o whether the activity is intended to advance the war aims of one party to the 

conflict to the detriment of the opposing party;

• the military significance of the activity to the party’s war effort, such as

o the degree to which the act contributes to a party’s military action against the 

opposing party;

o whether the act is of comparable or greater value to a party’s war effort than acts 

that are commonly regarded as taking a direct part in hostilities;245

o whether the act poses a significant threat to the opposing party;

• the degree to which the activity is viewed inherently or traditionally as a military one, 

such as

o whether the act is traditionally performed by military forces in conducting 

military operations against the enemy (including combat, combat support, and 

 relevance of geographic and temporal proximity of an individual's actions to particular hostile acts in ongoing 

hostilities.”).

245 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the 

Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3416 (“Finally, one rule of thumb with regard to the likelihood 

that an individual may be subject to lawful attack is his (or her) immunity from military service if continued service 

in his (or her) civilian position is of greater value to a nation’s war effort than that person’s service in the military. 

A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a 

nation’s national security or war aims. Thus, more than 900 of the World War II Project Manhattan personnel were 

civilians, and their participation in the U.S. atomic weapons program was of such importance as to have made them 

liable to legitimate attack. Similarly, the September 1944 Allied bombing raids on the German rocket sites at 

Peenemunde regarded the death of scientists involved in research and development at that facility to have been as 

important as destruction of the missiles themselves.”).
231

combat service support functions);246 or

o whether the activity involves making decisions on the conduct of hostilities, such 

as determining the use or application of combat power.

5.8.3.1 Examples of Taking a Direct Part in Hostilities. The following acts are 

generally considered taking a direct part in hostilities that would deprive civilians who perform 

them of protection from being made the object of attack. These examples are illustrative and not 

exhaustive: 

• taking up or bearing arms against the opposing party, or otherwise personally trying to 

kill, injure, or capture personnel or damage material belonging to the opposing party,

247

such as 

o defending military objectives against enemy attack (e.g., manning an antiaircraft 

gun, acting as a bodyguard for an enemy combatant);

248

o acting as a member of a weapons crew;

o engaging in an act of sabotage; or 

o emplacing mines or improvised explosive devices;

• preparing for combat and returning from combat;

• planning, authorizing, or implementing a combat operation against the opposing party, 

even if that person does not personally use weapons or otherwise employ destructive 

force in connection with the operation;

249

 246 Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed 

Conflict, 98 AJIL 1, 17 (2004) (“The argument that civilians are protected unless engaged in overtly aggressive acts 

like carrying weapons may be particularly difficult to maintain where armed groups are technically accorded civilian 

status by virtue of not being considered lawful combatants. To the extent that civilians fulfill the same function as 

combatants, either in the armed forces or as part of the organization of an ‘illegitimate’ nonstate actor, they are 

logically subject to targeting under the same provisions of international humanitarian law.”).

247 2006 AUSTRALIAN MANUAL ¶5.36 (“Civilians are only protected as long as they refrain from taking a direct part 

in hostilities. ... Civilians bearing arms and taking part in military operations are clearly taking part in hostilities;”); 

ICRC AP COMMENTARY 618-19 (¶1943) (“It seems that the word ‘hostilities’ covers not only the time that the 

civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in 

which he undertakes hostile acts without using a weapon.”).

248 2004 UK MANUAL ¶5.3.3 (“Whether civilians are taking a direct part in hostilities is a question of fact. Civilians 

manning an anti-aircraft gun or engaging in sabotage of military installations are doing so.”).

249 See Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme 

Court Sitting as the High Court of Justice, ¶37 (Dec. 11, 2005) (“We have seen that a civilian causing harm to the 

army is taking ‘a direct part’ in hostilities. What says the law about those who enlist him to take a direct part in the 

hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders and 

those responsible for them? Is the ‘direct’ part taken only by the last terrorist in the chain of command, or by the 

entire chain? In our opinion, the ‘direct’ character of the part taken should not be narrowed merely to the person 

committing the physical act of attack. Those who have sent him, as well, take ‘a direct part’. The same goes for the 
232

• providing or relaying information of immediate use in combat operations, such as 

o acting as an artillery spotter or member of a ground observer corps or otherwise 

relaying information to be used to direct an airstrike, mortar attack, or ambush;

250

and

o acting as a guide or lookout for combatants conducting military operations;

251

• supplying weapons and ammunition, whether to conventional armed forces or non-state 

armed groups, or assembling weapons (such as improvised explosive devices) in close 

geographic or temporal proximity to their use,

252 such as 

o delivering ammunition to the front lines; or

o outfitting and preparing a suicide bomber to conduct an attack.

5.8.3.2 Examples of Acts Not Considered Taking a Direct Part in Hostilities. The 

following acts are generally not considered taking a direct part in hostilities that would deprive 

civilians who perform them of protection from being made the object of attack. These examples 

are illustrative and not exhaustive:

• mere sympathy or moral support for a party’s cause;

• general contributions made by citizens to their State’s war effort (e.g., buying war bonds 

or paying taxes to the government that will ultimately be used to fund the armed forces);

• police services (e.g., police officers who maintain public order against common criminals

 

person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking 

an indirect part in the hostilities. Their contribution is direct (and active) (see Schmitt, at p. 529).”).

250 2013 GERMAN MANUAL ¶518 (“Accordingly, civilians who perform concrete actions that constitute direct 

participation in hostilities (e.g. conducting military operations, transporting weapons and ammunition to combat 

units, operating weapon systems, transmitting target data that leads immediately to the engagement of a military 

objective, etc.) can be engaged as military objectives while performing such actions.”).

251 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (“7.

Facts: Your unit comes under fire, you notice a young civilian woman who appears to be pointing to the location 

where friendly troops are concealed, based on her actions, those locations are then targeted. Response: Shoot to 

eliminate the threat ... .”).

252 See, e.g., United States v. Hamdan 6 (Dec. 19, 2007), reversed on different grounds, 696 F.3d 1238 (D.C. Cir. 

2012) (“The Commission also finds that the accused directly participated in those hostilities by driving a vehicle 

containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations [in 

the nearby town of Takta Pol and the more distant Kandahar]. ... Although Kandahar was a short distance away, the 

accused’s past history of delivering munitions to Taliban and al Qaeda fighters, his possession of a vehicle 

containing surface to air missiles, and his capture while driving in the direction of a battle already underway, 

satisfies the requirement of ‘direct participation.’”).
233

during armed conflict);253

• independent journalism or public advocacy (e.g., opinion journalists who write columns 

supporting or criticizing a State’s war effort);254

• working in a munitions factory or other factory that is not in geographic or temporal 

proximity to military operations but that is supplying weapons, materiel, and other goods 

useful to the armed forces of a State;

255 or

• providing medical care or impartial humanitarian assistance.

256

Although performing these activities does not make a person liable to being made the object of 

attack, performing these activities also does not immunize a person from attack if that person 

takes a direct part in hostilities or is otherwise lawfully made the object of attack.

5.8.3.3 Taking a Direct Part in Hostilities and Standards for the Use of Force in 

Self-Defense. In the practice of the United States, the U.S. armed forces have been authorized to 

use necessary and proportional force in self-defense in response to hostile acts or demonstrated 

hostile intent.257

In some cases, hostile acts or demonstrated hostile intent may also constitute taking a 

 253 Refer to § 4.23.1 (Police as Civilians).

254 Refer to § 4.24.1 (Status of Journalists – Generally Civilian). Cf. ICTY, Final Report to the Prosecutor by the 

Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, ¶47 

(Jun. 13, 2000) (“Whether the media constitutes a legitimate target group is a debatable issue. If the media is used 

to incite crimes, as in Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate 

support for the war effort, it is not a legitimate target.”).

255 BOTHE, PARTSCH, & SOLF, NEW RULES 303 (AP I art. 51, ¶2.4.2.2) (noting that during international armed 

conflict, “workers in defense plants or those engaged in distribution or storage of military supplies in rear areas, do 

not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack”). 

However, these individuals assume the risk of incidental injury as a result of attacks against those factories. Refer to

§ 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

256 Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During 

Armed Conflict, ¶I, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to the 

Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3, 

2016 (“Medical care during armed conflict is an activity that is fundamentally of a neutral, humanitarian, and noncombatant character.”).

257 For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules of 

Engagement/Standing Rules for the Use of Force for U.S. Forces, ¶6b(1) (June 13, 2005), reprinted in

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &

SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 95 (2007) (“Unit commanders always retain the inherent right 

and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless 

otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in 

response to a hostile act or demonstrated hostile intent.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 

3121.01A, Standing Rules of Engagement for US Forces, Enclosure A, A-1 (Jan. 15, 2000), reprinted in

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY,

JA, OPERATIONAL LAW HANDBOOK 102 (2006) (“US forces always retain the right to use necessary and 

proportional force for unit and individual self-defense in response to a hostile act or demonstrated hostile intent.”).
234

direct part in hostilities. However, hostile acts and demonstrated hostile intent in some respects 

may be narrower than the concept of taking a direct part in hostilities. For example, although 

supplying weapons and ammunition in close geographic or temporal proximity to their use is a 

common example of taking a direct part in hostilities, it would not necessarily constitute a hostile 

act or demonstrated hostile intent.

On the other hand, hostile acts and demonstrated hostile intent in some respects may be 

broader than the concept of taking a direct part in hostilities. For example, the use of force in 

response to hostile acts and demonstrated hostile intent applies outside hostilities, but taking a 

direct part in hostilities is limited to acts that occur during hostilities. Thus, the concept of taking 

a direct part hostilities must not be understood to limit the use of force in response to hostile acts 

or demonstrated hostile intent. 

In the practice of the United States, offensive combat operations against people who are 

taking a direct part in hostilities have been authorized through specific rules of engagement.

5.8.4 Duration of Liability to Attack. There has been a range of views about the duration 

for which civilians who have taken a direct part in hostilities forfeit protection from being made 

the object of attack.

258

In the U.S. approach, civilians who have taken a direct part in hostilities must not be 

made the object of attack after they have permanently ceased their participation because there 

would be no military necessity for attacking them. Persons who take a direct part in hostilities, 

however, do not benefit from a “revolving door” of protection. There may be difficult cases not 

clearly falling into either of these categories, and in such situations a case-by-case analysis of the 

specific facts would be needed.259

5.8.4.1 Permanently Ceased Participation in Hostilities. If a civilian has 

permanently ceased participation in hostilities, then that person must not be made the object of 

attack because there is no military necessity for doing so.260 The assessment of whether a person 

 258 See, e.g., Nils Melzer, Background Paper – Direct Participation on Hostilities under International Humanitarian 

Law – Expert Meeting of Oct. 25-26, 2004 34 (“At one end of the spectrum were experts who preferred narrowly 

defining temporal scope and favoured strictly limiting loss of protection to the period where DPH is actually being 

carried out. At the other end were experts who said that, once a person had undertaken an act constituting DPH, that 

person must clearly express a will to definitively disengage and offer assurances that he or she will not resume 

hostilities in order to regain protection against direct attack. However, opinions varied greatly and could not easily 

be divided into two groups supporting distinct positions.”).

259 Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme 

Court Sitting as the High Court of Justice, ¶40 (Dec. 11, 2005) (“These examples point out the dilemma which the 

‘for such time’ requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once, 

or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other 

hand, the ‘revolving door’ phenomenon, by which each terrorist has ‘horns of the alter’ (1 Kings 1:50) to grasp or a 

‘city of refuge’ (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him 

immunity from attack, is to be avoided (see Schmitt, at p. 536; Watkin, at p. 12; Kretzmer, at p. 193; DINSTEIN, at p. 

29; and Parks, at p. 118). In the wide area between those two possibilities, one finds the ‘gray’ cases, about which 

customary international law has not yet crystallized. There is thus no escaping examination of each and every 

case.”).

260 Refer to § 2.3 (Humanity).
235

has permanently ceased participation in hostilities must be based on a good faith assessment of 

the available information.261

For example, a civilian might have engaged in an isolated instance of taking a direct part 

in hostilities. This isolated instance is likely to have involved multiple acts, because taking a 

direct part in hostilities normally includes deploying or moving to a position of attack and 

exfiltrating from an attack.262 However, if this participation was an isolated instance that will 

not be repeated, then no military necessity for attacking that person exists after he or she has 

ceased taking a direct part in hostilities. Accordingly, the civilian must not be made the object of 

attack after he or she has ceased taking a direct part in hostilities. However, there may be other 

legal consequences from this isolated instance of participation. For example, such civilians may, 

depending on the circumstances, be detained, interned, or prosecuted because of these actions.

263

5.8.4.2 No “Revolving Door” Protection. The law of war, as applied by the 

United States, gives no “revolving door” protection; that is, the off-and-on protection in a case 

where a civilian repeatedly forfeits and regains his or her protection from being made the object 

of attack depending on whether or not the person is taking a direct part in hostilities at that exact 

time.264 Thus, for example, persons who are assessed to be engaged in a pattern of taking a 

direct part in hostilities do not regain protection from being made the object of attack in the time 

period between instances of taking a direct part in hostilities.

265

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

262 Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

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

264 See also Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in 

Hostilities’ Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS

641, 689 (2010) (“Further, on one level the term ‘revolving door’ evokes the idea of a form of carnival shooting 

gallery, where soldiers must wait until an opponent pops out from behind a door to be shot at. At some point, the 

credibility of the law begins to be undermined by suggesting an opponent can repeatedly avail themselves of such 

protection.”).

265 Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ 

Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 692 (2010) 

(“However, given the lack of credibility associated with the term, there can be no ‘revolving door’ of protection. 

After the first involvement, any subsequent act demonstrating direct participation would start to provide the basis to 

believe that there is the beginning of a pattern of conduct that reflects an intention to regularly engage in the 

hostilities. Repetitious participation can be considered in determining if such persons are in reality continuously 

engaged in hostilities. When such participation occurs, affirmative disengagement would be required in order to 

establish that such persons are no longer direct participants in hostilities.”). Cf. Bill Boothby, “And For Such Time 

As”: The Time Dimension to Direct Participation in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF 

INTERNATIONAL LAW AND POLITICS 741, 765-66 (2010) (“In my view, an alternative interpretation of the treaty 

language is equally valid. According to this alternative view, the temporal element in the provision lies both in the 

phrase ‘unless and for such time’ and in the word ‘participates.’ ... If, however, a person engages in repeated acts of 

DPH, there is an evident artificiality in regarding that individual as having protected status during the intervals in 

between. Experience shows that during those periods a further act of direct participation by the persistent 

participator is likely to be in prospect, and the likelihood is that during those intervals he will be preparing himself 

for the next act, checking his equipment, obtaining any additional equipment or stores he may require, 

communicating with like-minded or otherwise involved individuals, refining his plan and so on. While some such 

activities may be DP in their own right, the more important point is that a person who is so engaged cannot be 
236

A “revolving door” of protection would place these civilians who take a direct part in 

hostilities on a better footing than lawful combatants, who may be made the object of attack even 

when not taking a direct part in hostilities.266 The United States has strongly disagreed with 

posited rules of international law that, if accepted, would operate to give the so-called “farmer by 

day, guerilla by night” greater protections than lawful combatants.267 Adoption of such a rule 

would risk diminishing the protection of the civilian population.

5.8.5 Civilians Who Take a Direct Part in Hostilities and the Law of War. Although the 

concept of direct participation in hostilities may be discussed in contexts besides targeting, such 

as in the context of criminal liability or detention, there are often significant differences between 

“taking a direct part in hostilities” for targeting purposes and the standards used for assessing 

whether a civilian may be detained or prosecuted. 

For example, whether someone may be made the object of attack for taking a direct part 

in hostilities is different from whether he or she may be prosecuted for his or her actions. In 

some cases, domestic criminal liability for support to enemy armed groups is much broader than 

what acts constitute “taking a direct part in hostilities.”

Similarly, the authority to detain enemy persons during wartime extends beyond 

detaining those who have taken a direct part in hostilities.268

5.9 PERSONS PLACED HORS DE COMBAT

Persons, including combatants, placed hors de combat may not be made the object of 

attack. Persons placed hors de combat include the following categories of persons, provided 

they abstain from any hostile act and do not attempt to escape: 

• persons in the power of an adverse party;

• persons not yet in custody, who have surrendered; 

• persons who have been rendered unconscious or otherwise incapacitated by wounds,

sickness, or shipwreck; and

• persons parachuting from aircraft in distress.

5.9.1 Hors de Combat – Notes on Terminology. Hors de combat is a French phrase that

means “out of the battle.” It is generally used as a term of art to mean persons who may not be 

made the object of attack because they are out of the fighting and who therefore must be treated 

humanely.

 

equated with a civilian who remains uninvolved in the conflict. To do so is to place at risk the respect, based on 

law, to be accorded to the civilian population.”).

266 Refer to § 5.7.1 (Armed Forces and Groups and Liability to Being Made the Object of Attack).

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

268 Refer to § 4.8.3 (Civilians – Detention); § 4.4.2 (Combatants – POW Status During Detention).
237

Hors de combat is used in Common Article 3 of the 1949 Geneva Conventions269 and has 

been defined in Article 41 of AP I.270

5.9.2 Persons in the Power of an Adverse Party. Persons in the power of an adverse party 

include all persons detained by an adverse party, such as POWs, unprivileged belligerents, 

retained personnel, and civilian internees. As with other categories of persons hors de combat, 

detainees must refrain from hostile acts or attempts to escape in order to be considered hors de 

combat.

271

5.9.3 Persons Who Have Surrendered. Persons who are not in custody but who have 

surrendered are hors de combat and may not be made the object of attack.272 In order to make a 

person hors de combat, the surrender must be (1) genuine; (2) clear and unconditional; and (3) 

under circumstances where it is feasible for the opposing party to accept the surrender.273

5.9.3.1 Genuine. The offer to surrender must be genuine. In addition to being 

legally ineffective, feigning the intent to surrender can constitute perfidy.

274

5.9.3.2 Clear and Unconditional. The offer to surrender must be clear and 

unconditional. 

Any arms being carried should be laid down. All hostile acts or resistance, or 

manifestations of hostile intent, including efforts to escape or to destroy items, documents, or 

equipment to prevent their capture by the enemy, would need to cease immediately for the offer 

to be clear and unconditional. Raising one’s hands above one’s head to show that one is not 

preparing to fire a weapon or engage in combat is often a sign of surrender. Waving a white flag 

 269 GWS art. 3(1) (requiring humane treatment for “[p]ersons taking no active part in the hostilities, including 

members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, 

detention, or any other cause”); GWS-SEA art. 3(1) (same); GPW art. 3(1) (same); GC art. 3(1) (same).

270 AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearly 

expresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated by 

wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains 

from any hostile act and does not attempt to escape.”).

271 Consider AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; ... provided 

that in any of these cases he abstains from any hostile act and does not attempt to escape.”).

272 HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his 

arms, or having no longer means of defence, has surrendered at discretion;”). Consider AP I art. 41(2) (“A person is 

hors de combat if: ... (b) He clearly expresses an intention to surrender; ... provided that in any of these cases he 

abstains from any hostile act and does not attempt to escape.”).

273 Harold Hongju Koh, Legal Adviser, Department of State, The Lawfulness of the U.S. Operation Against Osama 

bin Laden, May 19, 2011, 2011 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 558-59 (“Finally, 

consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin 

Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance 

of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing 

force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where 

that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances 

presented here.”).

274 Refer to § 5.22.3 (Examples of Killing or Wounding by Resort to Perfidy).
238

technically is not a sign of surrender, but signals a desire to negotiate.275

The surrender must be “at discretion,” i.e., unconditional.276 A person who offers to 

surrender only if certain demands are met would not be hors de combat until that offer has been

accepted.

5.9.3.3 Under Circumstances in Which It Is Feasible to Accept. For an offer of 

surrender to render a person hors de combat, it must be feasible for the opposing party to accept 

the offer.

277 By way of comparison, a city may not be declared “undefended” (and thus 

essentially surrendered) if it is not open for immediate physical occupation by opposing military 

forces.278

The feasibility of accepting the surrender refers to whether it is practical and safe for the 

opposing force to take custody of the surrendering persons in the circumstances. For example, 

consider the situation of enemy soldiers who man an antiaircraft gun and shoot at an enemy 

aircraft, and then who raise their hands as if to surrender seconds before a second aircraft attacks

their position. In the circumstances, it would not be feasible for the crew of the attacking aircraft 

to land and accept their surrender.279 Similarly, a soldier fifty meters from an enemy defensive 

position in the midst of an infantry assault by his unit could not throw down his weapon and raise 

his arms (as if to indicate his desire to surrender) and reasonably expect that the defending unit 

will be able to accept and accomplish his surrender while resisting the ongoing assault by his 

unit.280

Although the feasibility of accepting surrender includes consideration of whether it is 

feasible to take custody of the persons offering to surrender, this does not include consideration 

of whether it is feasible to care for detainees after taking custody. Offers to surrender may not be 

refused because it would be militarily inconvenient or impractical to guard or care for 

detainees.281

5.9.4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, 

 275 Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).

276 HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his 

arms, or having no longer means of defence, has surrendered at discretion;”) (emphasis added).

277 See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“Surrender involves an offer by the surrendering party (a 

unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer 

of surrender when communicated, but that communication must be made at a time when it can be received and 

properly acted upon – an attempt at surrender in the midst of a hard-fought battle is neither easily communicated nor 

received. The issue is one of reasonableness.”).

278 Refer to § 5.15.3.1 (Open for Immediate Physical Occupation).

279 Refer to § 14.9.3.2 (Feasibility of Air Units to Accept the Surrender of Ground Forces).

280 See SPAIGHT, WAR RIGHTS ON LAND 92-93 (“A party in a trench must all surrender, genuinely and unmistakably, 

for a regiment, squadron, company or squad of men is not like a ship, which, when it ‘hath its bellyful of fighting,’ 

hauls down its colours and is clearly out of the fight. There is no such homogeneity in a unit in land war. ... It is the 

safest rule for a commander to pay no heed to a white flag which is hoisted, in the midst of an action, by a few men 

who form part of a more considerable force which still resists.”).

281 Refer to § 9.5.2.1 (Prohibition on Killing of POWs).
239

or Shipwreck. Persons who have been rendered unconscious or otherwise incapacitated by 

wounds, sickness, or shipwreck, such that they are no longer capable of fighting, are hors de 

combat.

282

Those “rendered unconscious” does not include persons who simply fall asleep. Sleeping 

combatants generally may be made the object of attack.283

Shipwrecked combatants include those who have been shipwrecked from any cause and 

includes forced landings at sea by or from aircraft.284

Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless 

state, and it would be dishonorable and inhumane to make them the object of attack.

285 In order 

to receive protection as hors de combat, the person must be wholly disabled from fighting.286 On 

the other hand, many combatants suffer from wounds and sickness, but nonetheless continue to 

fight and would not be protected.287

In many cases, the circumstances of combat may make it difficult to distinguish between 

persons who have been incapacitated by wounds, sickness, or shipwreck and those who continue 

to fight.288 If possible, those seeking protection as wounded, sick, or shipwrecked, should make 

their condition clear.289 

 282 Consider AP I art. 41(2) (“A person is hors de combat if: ... (c) He has been rendered unconscious or is 

otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any 

of these cases he abstains from any hostile act and does not attempt to escape.”).

283 For example, Judy G. Endicott, Raid on Libya: Operation ELDORADO CANYON, in SHORT OF WAR: MAJOR USAF

CONTINGENCY OPERATIONS 1947–1997 (A. Timothy Warnock, Air Force Historical Research Agency ed., 2000) 

(describing Operation ELDORADO CANYON, in which the United States responded to the Berlin discotheque bombing 

by conducting air strikes on multiple Libyan targets—including two military barracks—in the early hours of April 

15, 1986).

284 Refer to § 7.3.1.2 (Shipwrecked).

285 GWS-SEA COMMENTARY 87 (“[I]t must be pointed out that the purpose of this provision [i.e., the first paragraph 

of Article 12 of the GWS-Sea], and indeed of the whole Convention, is to protect wounded, sick and shipwrecked 

persons who, if they were not in this helpless state, could rightfully be attacked.”).

286 Cf. LIEBER CODE art. 71 (“Whoever intentionally inflicts additional wounds on an enemy already wholly 

disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, 

whether he belongs to the Army of the United States, or is an enemy captured after having committed his 

misdeed.”).

287 GWS COMMENTARY 136 footnote 1 (“Cases are frequent of soldiers who have heroically continued to fight in 

spite of serious wounds. It goes without saying that in so doing they renounce any claim to protection under the 

Convention.”).

288 GWS-SEA COMMENTARY 90 (“[D]uring a landing by armed forces it will not always be possible while the attack 

is in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly, 

in the case of persons specialized in under-water attacks, it may not always be evident when they are in peril and 

need assistance as shipwrecked. In such instances, persons in distress who renounce active combat can only expect 

the adversary to respect and rescue them if they make their situation clear, and of course provided the adversary sees 

their signals.”).

289 Compare § 5.9.3.2 (Clear and Unconditional).
240

5.9.5 Persons Parachuting From an Aircraft in Distress. In general, persons, such as 

aircrew or embarked passengers, parachuting from an aircraft in distress are treated as though 

they are hors de combat, i.e., they must not be made the object of attack.290

This protection is provided because a person descending by parachute is temporarily hors 

de combat just like someone who is shipwrecked291 or unconscious.292

5.9.5.1 No Hostile Acts or Attempts to Evade Capture. As with other categories 

of persons hors de combat, the protection from being made the object of attack is forfeited if the 

persons engage in hostile acts or attempt to evade capture.

Routine “slipping” to steer a parachute or similar actions to facilitate a safe parachute 

landing do not constitute acts of evasion.

5.9.5.2 Persons Deploying Into Combat by Parachute. Persons deploying into 

combat by parachute may be attacked throughout their descent, and upon landing.

Persons deploying into combat by parachute may include special operations or 

reconnaissance personnel, combat control teams, or airborne forces (i.e., specialized combat 

forces trained to arrive at military objectives by parachute drops).

Persons deploying into combat by parachute may be attacked even if they deploy from an 

aircraft in distress (e.g., the enemy has attacked the aircraft to resist the assault).

It may be the case, however, that airborne forces are parachuting from an aircraft in 

distress outside the context of an airborne assault. Since they would not be “deploying into 

combat,” they would be hors de combat while descending by parachute.

 290 1956 FM 27-10 (Change No. 1 1976) ¶30 (“The law of war does not prohibit firing upon paratroops or other 

persons who are or appear to be bound upon hostile missions while such persons are descending by parachute. 

Persons other than those mentioned in the preceding sentence who are descending by parachute from disabled 

aircraft may not be fired upon.”); APPENDIX TO 1985 CJCS MEMO ON AP I 31 (“Article 42 of the Protocol prohibits 

attacks on aircrew members descending by parachute from disabled aircraft. The United States regards such attacks 

as prohibited under customary international law, and the US delegation argued for explicit recognition of such a rule 

at the diplomatic conference which negotiated the Protocol.”). Consider AP I art. 42 (“1. No person parachuting 

from an aircraft in distress shall be made the object of attack during his descent. ... 3. Airborne troops are not 

protected by this Article.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of 

Warfare, General Report, Part II: Rules of Aërial Warfare, art. 20, Feb. 19, 1923, reprinted in 32 AJIL

SUPPLEMENT: OFFICIAL DOCUMENTS 12, 21 (1938) (“When an aircraft has been disabled, the occupants, when 

endeavoring to escape by means of a parachute, must not be attacked in the course of their descent.”).

291 ICRC AP COMMENTARY 495 (¶1637) (“There is absolutely no doubt that the majority [of States at the diplomatic 

conference] considered that airmen in distress are comparable to the shipwrecked persons protected by the Second 

Convention.”).

292 ICRC AP COMMENTARY 497 (¶1644) (“The airman who parachutes from an aircraft in distress is therefore 

temporarily hors de combat, just as if he had lost consciousness, until the moment that he lands on the ground, and 

as long as he is incapacitated.”).
241

5.10 PROPORTIONALITY IN CONDUCTING ATTACKS

In accordance with the principle of proportionality, combatants must not exercise the 

right to engage in attacks against military objectives in an unreasonable or excessive way.

293 

Therefore, when prosecuting attacks against military objectives (i.e., the persons and objects that 

may be made the object of attack), combatants must exercise due regard to reduce the risk of 

incidental harm to the civilian population and other persons and objects that may not be made the 

object of attack. In particular, the following rules apply:

• Combatants must take feasible precautions in planning and conducting attacks to reduce 

the risk of harm to civilians and other persons and objects protected from being made the 

object of attack;

294 and

• Combatants must refrain from attacks in which the expected loss of civilian life, injury to 

civilians, and damage to civilian objects incidental to the attack would be excessive in 

relation to the concrete and direct military advantage expected to be gained.295

5.10.1 Scope of Application of the Principle of Proportionality in Conducting Attacks. 

The principle of proportionality in conducting attacks imposes duties that apply to the protection 

of persons and objects that may not be made the object of attack. This principle does not impose 

obligations intended to reduce the risk of harm to military objectives (i.e., persons and objects 

that may be made the object of attack).

Although the prohibition on attacks expected to cause excessive harm to civilians and 

civilian objects generally does not require consideration of military personnel and objects, 

feasible precautions must be taken to reduce the risk of harm to military personnel and objects 

that are protected from being made the object of attack, such as military personnel placed hors de 

combat.

5.10.1.1 Proportionality in Conducting Attacks and Military Objectives. The 

principle of proportionality in conducting attacks does not impose obligations intended to reduce 

the risk of harm to military objectives (i.e., persons and objects that may be made the object of 

attack).

296 For example, an attack against an enemy combatant might also injure other enemy 

combatants who were not the specific targets of the attack. The principle of proportionality in 

conducting attacks would not require that efforts be made to reduce the likelihood of harm to 

other enemy combatants or damage to other military objectives, even if this harm were an 

unintended result of the attack.

5.10.1.2 Proportionality in Conducting Attacks and Protected Military Personnel 

and Facilities. The prohibition on attacks expected to cause excessive incidental harm requires 

 293 Refer to § 2.4 (Proportionality).

294 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

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

296 Refer to § 5.4.6 (Force That May Be Applied Against Military Objectives).
242

consideration of civilians and civilian objects, but this prohibition generally does not require 

consideration of military personnel and objects, even if they may not be made the object of 

attack, such as military medical personnel, the military wounded and sick, and military medical 

facilities. For example, treaty provisions articulating a prohibition on attacks expected to cause 

excessive incidental harm do not reflect protections for military personnel who are protected 

from being made the object of attack.

297 Those planning or conducting attacks may consider 

such military personnel as a matter of practice or policy in applying the prohibition on attacks 

expected to cause excessive incidental harm.

The exclusion of protected military personnel and military medical facilities from this 

prohibition reflects such factors as, among others, the general impracticality of prohibiting 

attacks on this basis during combat operations.

298 For example, the expected incidental harm to 

a sick-bay on a warship would not serve to exempt that warship from being made the object of 

attack.

Nonetheless, feasible precautions must be taken to reduce the risk of harm to military 

personnel and objects that are protected from being made the object of attack.

299 For example, in 

the context of a deliberate, planned bombardment of a military objective near an identifiable

military hospital, it may be feasible to take precautions to reduce the risk of harming the military 

hospital, and such precautions must be taken.

5.10.2 Responsibility of Commanders for Implementing the Principle of Proportionality 

in Conducting Attacks. Commanders, at all levels, have a great responsibility to exercise the 

leadership necessary to reduce the risk of harm to civilians and civilian objects.

300 Although the 

 297 Consider AP I art. 57(2)(a) (“Those who plan or decide upon an attack shall: ... (iii) Refrain from deciding to 

launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to 

civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military 

advantage anticipated;”); ROME STATUTE art. 8(2)(b)(iv) (defining war crimes in international armed conflict for the 

purposes of the Rome Statute to include “[i]ntentionally launching an attack in the knowledge that such attack will 

cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe 

damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall 

military advantage anticipated;”).

298 Refer to § 7.8.2.1 (Incidental Harm Not Prohibited); § 7.12.2.5 (Acceptance of the Risk From Proximity to 

Combat Operations).

299 See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 133 footnote 17 (“It is clear that hospital ships act 

at their own risk whenever they place themselves in the immediate vicinity of legitimate military objectives. For 

even though every effort must be made to avoid firing upon—or bombing—hospital ships, the presence of the latter 

cannot serve to exempt nearby military objectives from attack for fear that a hospital vessel might thereby suffer 

incidental injury.”).

300 Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 60 (May 30, 

2013) (“Virtually all witnesses agreed that a moral, ethical command climate in combat that inculcates and 

maintains U.S. values despite the difficulties of the mission or the particular area of operations is the single most 

important factor in preventing civilian casualties, ensuring civilian casualty reporting, and appropriately addressing 

reported incidents. Individual commanders, at all levels, together with their non-commissioned officers, have a 

great responsibility in this regard. No substitute exists for ethical leadership manifested by the provision of training 

in garrison and throughout deployments. Such training should demonstrate ethical responses to civilian 

engagements, including incident reporting and investigations, and engender trust that civilian casualty investigations 

are used to determine facts, and not just to uncover misconduct.”).
243

specific responsibilities that individual combatants have to implement the principle of 

proportionality will depend on their role and assigned military duties in planning or conducting 

an attack, commanders are responsible for making the decisions and judgments required by the 

principle of proportionality in conducting attacks.301

5.10.2.1 Need for Competent Authority to Make the Decisions and Judgments 

Required by the Principle of Proportionality. As with other aspects of the law of war, the 

persons within a party to a conflict who are responsible for making the decisions and judgments 

required by the principle of proportionality are those who have the authority to make these 

decisions and judgments.

302 The specific responsibilities that individual combatants have to 

implement the principle of proportionality will depend on their role and assigned military duties 

in planning or conducting an attack.303

The decisions and judgments required by the principle of proportionality normally

require authority over military operations. For example, assessing the military advantage 

expected to be gained from an attack may require knowing the broader strategy being employed 

by the attacking party or knowing intelligence information about the strategic and operational 

context in which the attack takes place.

304 Lower-level personnel may not be privy to the 

strategic or operational significance of a specific attack, and thus may not be competent to 

 301 HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing a 

bombardment, except in cases of assault, do all in his power to warn the authorities.”) (emphasis added); HAGUE IX

art. 6 (“If the military situation permits, the commander of the attacking naval force, before commencing the 

bombardment, must do his utmost to warn the authorities.”) (emphasis added). Cf. United Kingdom, Statement on 

Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“The United Kingdom understands that the obligation to 

comply with [art. 57] paragraph 2(b) only extends to those who have the authority and practical possibility to cancel 

or suspend the attack.”); VI OFFICIAL RECORDS OF THE CDDH 212 (CDDH/SR.42, ¶43) (“Mr. BINDSCHEDLER

(Switzerland) said that he was critical of paragraphs 2 and 3 of Article 50 because they lacked clarity, particularly 

the words ‘Those who plan or decide upon an attack...’ in paragraph 2(a). That ambiguous wording might well 

place a burden or responsibility on junior military personnel which ought normally to be borne by those of higher 

rank. The obligations set out in article 50 could concern the high commands only – the higher grade of the military 

hierarchy, and it was thus that Switzerland would interpret that provision.”) (ellipsis shown in original); id. at ¶¶44-

46 (“Mr. KUSSBACH (Austria) said that ... His delegation considered that the precautions envisaged could only be 

taken at a higher level of military command, in other words by the high command. Junior military personnel could 

not be expected to take all the precautions prescribed, particularly that of ensuring respect for the principle of 

proportionality during an attack.”).

302 Refer to § 18.3.1.1 (Implementation of International Obligations by Persons With the Authority to Make the 

Necessary Decisions and Judgments Required by International Law).

303 2004 UK MANUAL ¶5.32.9 (“Those who plan or decide upon attacks are the planners and commanders and they 

have a duty to verify targets, take precautions to reduce incidental damage, and refrain from attacks that offend the 

proportionality principle. Whether a person will have this responsibility will depend on whether he has any 

discretion in the way the attack is carried out and so the responsibility will range from commanders-in-chief and 

their planning staff to single soldiers opening fire on their own initiative.”); 2004 UK MANUAL ¶5.33.5 (“In 

assessing whether the proportionality rule has been violated, the effect of the whole attack must be considered. That 

does not, however, mean that an entirely gratuitous and unnecessary action within the attack as a whole would be 

condoned. Generally speaking, when considering the responsibility of a commander at any level, it is necessary to 

look at the part of the attack for which he was responsible in the context of the attack as a whole and in the light of 

the circumstances prevailing at the time the decision to attack was made.”).

304 Refer to § 5.12.2.1 (Considering the Advantage From the Attack as a Whole – In the Operational and Strategic 

Context).
244

evaluate the expected military advantage of the attack against the expected harm to civilians and 

civilian objects.

305 Similarly, determinations about the feasibility of taking a precaution may 

require the authority to direct and manage resources (e.g., allocating weapons systems and 

intelligence assets) or judgments about the acceptable degree of risk (e.g., to the lives of friendly 

forces and to mission accomplishment).

306 For example, the principle of proportionality 

ordinarily does not require military personnel to take actions, such as providing warnings, when 

a superior commander has already determined that such actions are not feasible because, for 

instance, such actions could endanger mission accomplishment and the safety of friendly forces.

In the absence of specific direction to the contrary, subordinate commanders or 

engagement authorities have the authority to make the corresponding decisions required by the 

law of war, such as the decision to cancel or suspend an attack in light of new information, in 

order to effectuate the commander’s intent.307

5.10.2.2 “Reasonable Military Commander” Standard for Proportionality 

Decisions and Judgments. The commander’s decisions on proportionality must be reasonable.308 

For example, the commander must be able to explain the expected military importance of the 

target and why the anticipated civilian collateral injury or damage is not expected to be 

excessive.309

5.10.2.3 Subjective Aspects of the Decisions and Judgments Required by the 

Principle of Proportionality. The decisions and judgments required by the principle of 

proportionality in conducting attacks have subjective aspects.

310

 305 BOTHE, PARTSCH, & SOLF, NEW RULES 366-67 (AP I art. 57, ¶2.8.1.3) (“In co-ordinated military operation, the 

relative importance of the military objective under attack in relation to the concrete and direct military advantage 

anticipated is not a matter which can be determined by individual tank leaders, the commanders of lower echelon 

combat units or individual attacking bomber aircraft. If assigned a fire or bombing mission they must assume that 

an appropriate assessment has been made by those who assigned the mission. Thus, in this situation, the decision to 

cancel will have to be made at the level where the decision to initiate the attack was made.”).

306 Refer to § 5.2.3.2 (What Precautions Are Feasible).

307 Refer to § 5.10.2.5 (Discretion of Subordinates in the Conduct of Attacks).

308 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶50 (Jun. 13, 2000) (“It is suggested that the determination of relative 

values must be that of the ‘reasonable military commander’. Although there will be room for argument in close 

cases, there will be many cases where reasonable military commanders will agree that the injury to noncombatants 

or the damage to civilian objects was clearly disproportionate to the military advantage gained.”).

309 See Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law, 18 

(3rd ed., 2014) (“If the commander can clearly articulate in a reasonable manner what the military importance of the 

target is and why the anticipated civilian collateral injury or damage is outweighed by the military advantage to be 

gained, this will generally satisfy a ‘reasonable military commander’ standard.”); Department of the Air Force, The 

Judge Advocate General’s School, Air Force Operations and The Law, 21 (2nd ed., 2009) (same); Department of 

the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law, 28 (1st ed., 2002) 

(substantially similar).

310 BOTHE, PARTSCH, & SOLF, NEW RULES 368 (AP I art. 57, ¶2.10.1) (“Like subparas. 2(a) (ii) and (iii), 

implementation of this provision is dependent on upon the subjective judgment of the commanders concerned. In 

this case a subjective determination is expected as to whether two or more targets for attack, offer a similar military 

advantage.”).
245

Although the decisions and judgments required by the principle of proportionality must 

be applied with common sense and good faith,311 there nonetheless might be variation in how 

reasonable persons would apply the principle of proportionality in a given circumstance.

312 The 

principle of proportionality typically involves the comparison of “unlike quantities and 

values.”313 Moreover, there may be disagreements among experts as to the precise requirements 

of the law.

For example, it could often be the case that reasonable persons might disagree as to 

whether the expected civilian casualties from an attack would be excessive.

314 Similarly, 

reasonable commanders might make different decisions in applying the principle of 

proportionality.

315

 311 ICRC AP COMMENTARY 683-84 (¶2208) (“Even if this system is based to some extent on a subjective evaluation, 

the interpretation must above all be a question of common sense and good faith for military commanders. In every 

attack they must carefully weigh up the humanitarian and military interests at stake.”). See also ICRC AP

COMMENTARY 395 (¶1393) (“Good faith is not a virtue which is the exclusive attribute of the interpreters of the law, 

but is also imposed on those who enjoy a certain degree of freedom of action in the field, even though the heat of 

battle does not favour an objective view of things.”).

312 Janina Dill, Applying the Principle of Proportionality in Combat Operations, 4 (Oxford Institute for Ethics, Law 

and Armed Conflict, December 2010) (“While the proportionality judgement call is thus pushed higher-up the chain 

of command as more civilian damage is expected to result from an attack, it remains an essentially subjective and 

personal matter. Interviews with practitioners suggest that professional experience and personal morality rather than 

a transparent and stable set of criteria determine what is considered proportionate. Military lawyers acknowledge 

that, as a result, different professionals are likely to come to different conclusions about whether an anticipated 

collateral damage is excessive in the same situation, when applying the law in good faith. Commanders suggest 

that, proportionality judgements, in reality, often boil down to asking ‘can the estimated collateral damage be further 

reduced, through timing, choice of weapons or angle of attack.’ If the answer is no, the principle is considered to be 

fulfilled.”).

313 See, e.g., Brief of the United States as Amicus Curiae in Support of Defendants-Appellees, Vietnam Association 

for Victims of Agent Orange, et al., v. Dow Chemical Co., et al., 25-26 (Feb. 15, 2006) (“The plaintiffs argue that 

the U.S. military’s use of herbicides was unlawful because the harm to persons and property caused by herbicide use 

was disproportionate to the anticipated military advantage. ... In order to adjudicate the plaintiffs’ claims, a court 

would be required to balance the U.S. military’s interests in protecting our forces from ambush or other attack, and 

in weakening enemy forces, with the anticipated harms that might be caused by exposure to herbicides. Even apart 

from the significant uncertainty about the effects of Agent Orange and other herbicides, this balancing would be 

inherently subjective since it would involve unlike quantities and values – e.g., the long-term health of civilians or 

enemy soldiers exposed to herbicides, with the death of U.S. forces and the accomplishment of military 

objectives.”).

314 Refer to § 5.12.3 (Determining Whether the Expected Incidental Harm Is Excessive).

315 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶¶49-50 (Jun. 13, 2000) (“49. The questions which remain unresolved 

once one decides to apply the principle of proportionality include the following: a) What are the relative values to 

be assigned to the military advantage gained and the injury to non-combatants and or the damage to civilian objects? 

b) What do you include or exclude in totaling your sums? c) What is the standard of measurement in time or space? 

and d) To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian 

casualties or damage to civilian objects? 50. The answers to these questions are not simple. It may be necessary to 

resolve them on a case by case basis, and the answers may differ depending on the background and values of the 

decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the 

same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military 
246

A degree of deference should be given to commanders when assessing after the fact 

whether a decision-maker has complied with the principle of proportionality.316 In addition, an 

assessment of whether a decision-maker has complied with the legal requirements must be based 

on the information available to that person at the time.

317

5.10.2.4 Duty Not to Comply With Clearly Illegal Orders and the Principle of 

Proportionality. In the context of the principle of distinction, it would often be clear whether a 

given situation implicates the duty not to comply with clearly illegal orders to commit law of war 

violations – such as the duty of a subordinate to refrain from complying with an order to attack 

the civilian population. However, the nuances involved in applying the principle of 

proportionality could make it more difficult to know whether an order given is clearly illegal.

The duty not to comply with orders that are clearly illegal also applies to violations of the 

principle of proportionality, in particular, the case of a commander who orders subordinates to 

conduct an attack that is expected to result in civilian casualties that the commander himself or 

herself acknowledges would be excessive.

Nonetheless, this duty must be understood in light of application of the principle that law 

of war obligations are implemented by those with responsibility to make the decisions and 

judgments required by the law of war, and in particular the point that subordinates might not be 

competent to evaluate whether the requirements of proportionality had been met.318

Subordinates ordinarily do not have an obligation to second-guess the judgments of their 

superiors in relation to the principle of proportionality. As with other aspects of the law of war, 

subordinates are not required to screen the orders of superiors for questionable points of legality, 

and may, absent specific knowledge to the contrary, presume that orders have been lawfully 

 

commanders with different doctrinal backgrounds and differing degrees of combat experience or national military 

histories would always agree in close cases.”).

316 See, e.g., WILLIAM H. BOOTHBY, THE LAW OF TARGETING 126 (2012) (“There is a widely recognized margin of 

appreciation such that criminal liability, for example before the International Criminal Court, will only arise if an 

attack is intentionally launched in the knowledge that it will be clearly disproportionate.”); ICRC AP COMMENTARY

684 (¶2210) (“Despite these clarifications, the provision allows for a fairly broad margin of judgment, as stated 

above; several delegations regretfully stressed this fact. In contrast, other delegations commended the fact that in 

[the] future military commanders would have a universally recognized guideline as regards their responsibilities to 

the civilian population during attacks against military objectives.”).

317 Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

318 See also APPENDIX TO 1985 CJCS MEMO ON AP I 64-65 (“Under military law, members of the armed forces may, 

and should, refuse to obey an order to commit a crime, such as the shooting of prisoners of war or unarmed civilians. 

Article 57, however, goes considerably beyond this, in allowing each individual combatant to call off an ‘attack’ (or 

at least his participation in it) if it appears to him that collateral damage ‘may’ be excessive to whatever military 

advantage he is aware of. In order to overcome this defense in a trial by court-martial, the prosecution would have 

to prove, beyond a reasonable doubt, that the possible collateral damage would not be excessive to the military 

advantage gained. To do this would often require the declassification of information known to the accused’s 

superiors and its discussion in a public trial. Finally, the accused might be able to prevail on this issue simply by 

demonstrating a reasonable mistake of fact on his part--a reasonable belief, perhaps formed in part on the basis of 

propaganda reports in the public media, that collateral damage was excessive to any expected military advantage. ... 

If the United States ratifies Protocol I, therefore, it should do so subject to an understanding that this paragraph of 

Article 57 only applies to commanders who have authority to terminate attacks.”).
247

issued.319 If questions arise, service members should apply their training, refer to applicable 

policy and regulations, and direct questions through appropriate channels.320

5.10.2.5 Discretion of Subordinates in the Conduct of Attacks. Commanders

often provide subordinates substantial discretion in the tactics of an attack, such as in the 

selection of individual targets and in the timing of the attack. In the absence of specific direction 

to the contrary, subordinate commanders or engagement authorities have the authority to make 

the corresponding decisions required by the law of war, such as the decision to cancel or suspend 

an attack in light of new information, in order to effectuate the commander’s intent.

321 This is 

especially important in situations where the subordinate is not in direct communication with the 

commander and the commander does not have situational awareness. For example, a 

commander may provide subordinates broad discretion to conduct an attack in which 

subordinates discover an unanticipated risk of civilian casualties. If receiving updated 

instructions in light of this new information was not possible, the subordinates would be 

understood to have the authority to take additional precautions to mitigate this unanticipated risk 

or even to refrain from conducting the attack if the subordinates believe that such measures 

would best achieve the commander’s intent if the commander had known such information.

5.10.3 Implementation of Proportionality Through Military Procedures. As with other 

aspects of the law of war, during U.S. military operations, commanders have implemented the 

requirements of the principle of proportionality through military procedures, such as rules of 

engagement, doctrine, standard operating procedures, and special instructions.

322 In U.S. 

practice, implementing procedures sometimes place more restrictions on military operations and 

are more protective of civilians than what would be required by the law of war.323

Military authorities have developed procedures to assess before an attack the expected

collateral damage or effects of an attack.324 For example, lists of sensitive objects for which 

 319 Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).

320 Refer to § 18.3.1.2 (Practical Ways in Which the Requirement to Comply With the Law of War in Good Faith is 

Met by Individual Service Members).

321 Compare § 18.3.2.2 (Commands and Orders Should Not Be Understood as Implicitly Authorizing Violations of 

the Law of War).

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

323 Refer to § 5.1.2.1 (Applying Standards in the Conduct of Hostilities That Pose More Restrictions on Military

Operations and That Are More Protective of Civilians Than Required By the Law of War).

324 For example, JOINT PUBLICATION 3-60, Joint Targeting, p. II-16 (Jan. 31, 2013) (“CDE is a critical part of the 

effects estimate step in the joint targeting process phase 3 (or in the ‘track’ step of phase 5 during dynamic targeting) 

when munitions are used on facilities. CJCSI 3160.01, No-Strike and the Collateral Damage Estimation 

Methodology details a specific CDE process followed Department of Defense (DOD)-wide.”); JOINT PUBLICATION 

3-60, Joint Targeting, p. II-16 (Apr. 13, 2007) (“CJCSM 3160.01A codifies the joint standards and methods for 

estimating collateral damage potential, provides mitigation techniques, and assists commanders with weighing 

collateral risk against military necessity and assessing proportionality within the framework of the military decisionmaking process. These joint standards and methods for conducting CDE apply across the range of military 

operations. In addition, the CDEs that result from CJCSM 3160.01A are meant to inform decision makers and 

commanders and are not decisions themselves. CDEs help senior leaders evaluate collateral risk against military 

necessity during the planning and execution of combat operations.”).
248

responsible commanders have imposed requirements for additional review or higher-level 

approval before the objects may be attacked (sometimes referred to as “no-strike lists”) have 

been developed,

325 as have procedures for presenting to more senior commanders for decision

potential attacks on targets that involve higher risks of incidental harm.326

These procedures help ensure the sound implementation of the requirements of the

principle of proportionality. As a case in point, procedures for requesting higher-level approval 

of targets that involve high risks of incidental harm allow for a better evaluation of the expected 

military advantage from the attack (as it is likely that more senior commanders have a more 

comprehensive understanding of the strategic and operational context), and allow more senior 

commanders to implement additional precautions with the greater resources under their 

control.

327 Similarly, rules of engagement and military orders can be used to delineate the 

 325 For example, FINAL REPORT ON THE PERSIAN GULF WAR 100 (“To help strike planners, CENTCOM target 

intelligence analysts, in close coordination with the national intelligence agencies and the State Department, 

produced a joint no-fire target list. This list was a compilation of historical, archaeological, economic, religious and 

politically sensitive installations in Iraq and Kuwait that could not be targeted. Additionally, target intelligence 

analysts were tasked to look in a six-mile area around each master attack list target for schools, hospitals, and 

mosques to identify targets where extreme care was required in planning. Further, using imagery, tourist maps, and 

human resource intelligence (HUMINT) reports, these same types of areas were identified for the entire city of 

Baghdad.”). Refer to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property), 

especially footnote 606.

326 For example, JOINT PUBLICATION 3-60, Joint Targeting, p. II-16 (Jan. 31, 2013) (“Targets with associated 

collateral damage concerns expected to exceed theater (combatant command) thresholds are referred either to 

SecDef or the President using the sensitive target approval and review (STAR) process, detailed in CJCSI 3122.06, 

Sensitive Target Approval and Review (STAR) Process.”); JOINT PUBLICATION 3-60, Joint Targeting, pp. II-10-II-11 

(Apr. 13, 2007) (“Targets with associated collateral damage concerns expected to exceed theater (combatant 

command) thresholds are referred either to the Secretary of Defense (SecDef) or President using the sensitive target 

approval and review process, detailed in Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3122.06B, 

Sensitive Target Approval and Review (STAR) Process. See also Appendix A, ‘Time Sensitive Target 

Considerations’ and Appendix G, ‘Collateral Damage Estimation,’ for more detail.”).

327 See Geoff Corn, War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure, 42 

PEPPERDINE LAW REVIEW 419, 463-64 (2015) (“There is another subtle, but perhaps most important, benefit of 

elevating certain proportionality judgments to higher echelons of command: an increasingly more expansive 

operational perspective. Commanders and staffs at all levels of command focus inherently on their operational 

situation. As a result, commanders’ operational focuses will inevitably expand or contract depending on their level 

of command. Proportionality judgments have profound tactical and strategic consequences. Where a commander 

authorizes an attack anticipating it will produce civilian casualties and the attack does in fact do so, those casualties 

may become a source of condemnation by external observers, become a motivation for resistance by the enemy and 

civilian population, or become a source of motivation for enemy forces. Any of these consequences poses 

significant strategic risk for the overall military effort. In contrast, where a commander decides to forego an attack 

because of anticipated risk to the civilian population, the decision may compromise tactical effectiveness, increase 

the risk to friendly forces, and make mission accomplishment more difficult. Broadening the decision-making 

commander’s operational perspective should logically enhance the ability to assess these tactical and strategic 

consequences inherent in proportionality judgments. Thus, as this perspective increases at each higher echelon of 

command, so too does the acceptable degree of risk associated with a proportionality judgment. Finally, it is a 

simple axiom of military organizations that the range of combat resources increases with each higher level of 

command. This is a highly significant benefit of reserving proportionality judgments to higher levels of command, 

because as the judgment is progressively elevated, the commander entrusted with the judgment will be able to 

consider a broader range of alternative targeting options. As a result, a difficult proportionality judgment for a lower 

level commander may be obviated at a higher level of command because that commander may utilize an alternate 
249

circumstances and limitations under which subordinates will initiate and/or continue an attack.

328

5.10.4 Time Constraints and the Application of Proportionality. The time available to 

make decisions and to take precautions is a major factor affecting the implementation of the 

requirements of the principle of proportionality. For example, the available time affects what 

precautions are feasible, and the available time is a constraint in assessing whether an attack is 

expected to cause excessive incidental harm. Thus, although the legal standard of 

proportionality does not distinguish as such between, e.g., dynamic and deliberate targeting, the 

availability of more time in the context of deliberate targeting generally allows for more actions 

to be taken to reduce the risk of civilian casualties.

Training on, and application of, targeting procedures can help forces implement the 

requirements of the principle of proportionality even when there is little time to make targeting 

decisions or to take precautions. Moreover, as with other law of war requirements, the principle 

of proportionality does not preclude commanders from taking decisive action in doubtful cases, 

but commanders must make decisions in good faith on the basis of the information available to 

them.329

5.10.5 Relationship Between the Requirement to Take Feasible Precautions in Planning 

and Conducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental 

Harm. This manual describes the requirement to take feasible precautions in planning and 

conducting attacks and the prohibition on attacks expected to cause excessive incidental harm as 

rules that are based on the principle of proportionality. Other sources may describe the 

relationships between the rules differently.330 But this manual adopts this approach because the 

requirement to take feasible precautions in planning and conducting attacks and the prohibition 

on attacks expected to cause excessive incidental harm are fundamentally connected and 

mutually reinforcing obligations.

U.S. military manuals reflect the fundamental connection between the requirement to 

take feasible precautions in planning and conducting attacks and the prohibition on attacks 

expected to cause excessive incidental harm.

331 This connection is also reflected in the 

 

method or means of attack to avoid the proportionality issue altogether, an option that did not exist for the 

commander of the subordinate unit.”) (footnotes omitted).

328 Refer to § 1.6.5 (Rules of Engagement (ROE)); § 5.11.4 (Canceling or Suspending Attacks Based on New 

Information Raising Concerns of Expected Civilian Casualties).

329 Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

330 E.g., Columbia, Constitutional Court, Plenary Chamber, Constitutional Case No. C-291/07, Judgment, Apr. 25, 

2007, as reprinted and translated by the International Committee of the Red Cross at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v2_cou_co_rule17 (“The precautionary principle is the cornerstone of a 

number of specific rules which are all considered to have attained customary status and to be applicable in internal 

armed conflicts ... Among these rules is ... the obligation of the parties to a conflict to take all feasible precautions 

in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental 

loss of civilian life, injury to civilians and damage to civilian objects. [footnote in original omitted]”).

331 See, e.g., 2007 NWP 1-14M ¶8.3.1 (“It is not unlawful to cause incidental injury to civilians, or collateral damage 

to civilian objects, during an attack upon a legitimate military objective. The principle of proportionality requires 

that the anticipated incidental injury or collateral damage must not, however, be excessive in light of the military 

advantage expected to be gained. Naval commanders must take all reasonable precautions, taking into account 
250

negotiating history of the treaty provisions that sought to codify the principle of 

proportionality.

332 For example, the obligation to take precautions has been viewed as following 

from the prohibition on attacks expected to result in excessive harm.333 In addition, applying the 

prohibition on attacks expected to result in excessive harm has been viewed as a precaution.334

The requirement to take feasible precautions in planning and conducting attacks and the 

prohibition on attacks expected to cause excessive incidental harm are mutually reinforcing 

obligations. Taking precautions helps ensure that the prohibition is not violated, and ensuring 

that the precautionary obligation has been complied with may help with the assessment of 

whether a strike would be consistent with the prohibition.335 However, feasible precautions must 

be taken even when the attack is not expected to cause excessive incidental harm, and, even 

when feasible precautions have been taken, an attack could still be prohibited as one expected to 

cause excessive incidental harm.

5.11 PROPORTIONALITY – FEASIBLE PRECAUTIONS IN PLANNING AND CONDUCTING ATTACKS TO 

REDUCE THE RISK OF HARM TO PROTECTED PERSONS AND OBJECTS

Combatants must take feasible precautions in planning and conducting attacks to reduce 

the risk of harm to civilians and other persons and objects protected from being made the object 

of attack.

336

 

military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with 

mission accomplishment and the security of the force.”); DEPARTMENT OF THE AIR FORCE PAMPHLET 110-34, 

Commander’s Handbook on the Law of Armed Conflict, ¶3-8 (Jul. 25, 1980) (“It is not unlawful to cause incidental 

injury or death to civilians or damage to civilian property during an attack on a legitimate military objective as 

defined in chapter 2. This collateral damage should not, however, be excessive in light of the military advantage 

anticipated from the attack, and in all operations, every feasible precaution should be taken to keep civilian 

casualties and damage to a minimum.”).

332 XV OFFICIAL RECORDS OF THE CDDH 285 (CDDH/215/Rev. 1, ¶97) (“Paragraph 2 (a) of article 50 required 

much time and effort to work out, but the other paragraphs were fairly quickly agreed upon. The so-called rule of 

proportionality in paragraph 2 (a) iii was found ultimately to be acceptable when it was preceded by paragraph 2 (a) 

i and paragraph 2 (a) ii which prescribe additional precautions and phrased in terms of losses ‘excessive in relation 

to the concrete and direct military advantage anticipated’, and was supplemented by paragraph 5 to make clear that it 

may not be construed as authorization for attacks against civilians.”) (emphasis added).

333 1956 FM 27-10 (Change No. 1 1976) ¶39 (“Particularly in the circumstances referred to in the preceding 

paragraph, loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete 

and direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must take 

all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places 

within the meaning of the preceding paragraph but also that these objectives may be attacked without probable 

losses in lives and damage to property disproportionate to the military advantage anticipated.”) (emphasis added).

334 Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: ... (a) Those who 

plan or decide upon an attack shall: ... (iii) Refrain from deciding to launch any attack which may be expected to 

cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which 

would be excessive in relation to the concrete and direct military advantage anticipated;”).

335 Refer to § 5.12.3.2 (Feasibility of Taking Additional Precautions to Reduce the Risk of Incidental Harm).

336 See Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian 

Casualties in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, 44485-86 (§2) (Jul. 1, 

2016) (“In particular, relevant agencies shall, consistent with mission objectives and applicable law, including the 
251

As discussed in § 5.2.3.2 (What Precautions Are Feasible), what precautions are feasible 

depends greatly on the context.

337 Moreover, the requirement to take feasible precautions should 

be applied as part of the principle of proportionality in conducting attacks, and the discussion in 

this section should be considered in light of the discussion in § 5.10 (Proportionality in 

Conducting Attacks).

338

Feasible precautions in planning and conducting attacks may include, but are not limited 

to, the following:

• assessing the risks to civilians;

339

• identifying zones in which military objectives are more likely to be present or civilians 

are more likely to be absent;

340

• providing effective advance warning before an attack that may affect the civilian 

population;341

• adjusting the timing of an attack;342

 law of armed conflict: ... (iv) take feasible precautions in conducting attacks to reduce the likelihood of civilian 

casualties, such as providing warnings to the civilian population (unless the circumstances do not permit), adjusting 

the timing of attacks, taking steps to ensure military objectives and civilians are clearly distinguished, and taking 

other measures appropriate to the circumstances;”); HAGUE IV REG. art. 27 (“In sieges and bombardments all 

necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable 

purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not 

being used at the time for military purposes.”); HAGUE IX art. 5 (“In bombardments by naval forces all the necessary 

measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, 

scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, 

on the understanding that they are not used at the same time for military purposes.”); Harold Koh, Legal Adviser, 

Department of State, Letter to Paul Seger, Legal Adviser of Switzerland regarding Switzerland’s Position on the 

U.S. Reservation to Protocol III of the Convention on Certain Conventional Weapons, Dec. 30, 2009 (“In particular, 

the U.S. reservation is consistent with article 57(2)(ii) and article 57(4) of the 1977 Additional Protocol I to the 

Geneva Conventions. Article 57(4) provides that governments shall ‘take all reasonable precautions to avoid losses 

of civilian lives and damage to civilian objects.’ Although the United States is not a party to Additional Protocol I, 

we believe these provisions are an accurate statement of the fundamental law of war principle of discrimination.”). 

Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: (a) Those who plan or 

decide upon an attack shall: ... (ii) Take all feasible precautions in the choice of means and methods of attack with a 

view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to 

civilian objects;”); AP I art. 57(4) (“In the conduct of military operations at sea or in the air, each Party to the 

conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed 

conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”).

337 Refer to § 5.2.3.2 (What Precautions Are Feasible).

338 Refer to § 5.10 (Proportionality in Conducting Attacks).

339 Refer to § 5.11.1 (Assessing the Risks to Civilians).

340 Refer to § 5.11.2 (Identifying Zones in Which Military Objectives Are More Likely to Be Present or Civilians 

Are More Likely to Be Absent).

341 Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

342 Refer to § 5.11.3 (Adjusting the Timing of the Attack).
252

• cancelling or suspending attacks based on new information raising concerns of expected 

civilian casualties;343

• weaponeering (e.g., selecting appropriate weapons, aim points);

344 and

• selecting military objectives.

345

5.11.1 Assessing the Risks to Civilians. Assessments of the risks to civilians can include: 

1) general assessments of the risks to civilians and the effectiveness of efforts to reduce the risk 

to civilians; 2) pre-strike assessments of expected civilian casualties; and 3) after-action 

assessments and investigations.

5.11.1.1 General Assessments of the Risks to Civilians and the Effectiveness of 

Efforts to Reduce the Risks to Civilians. In the planning of military operations, general 

assessments (i.e., assessments not necessarily done in relation to a particular attack) of the risks 

to civilians and efforts to reduce the risks to civilians can assist in efforts to reduce the risk of 

incidental harm. For example, military authorities could identify places or objects posing 

significant risks of incidental harm if struck and could compile them into a list. They could then 

use such information in planning efforts and when conducting specific attacks to reduce the risk 

of incidental harm.

5.11.1.2 Pre-Strike Assessments of Expected Civilian Casualties. Pre-strike 

assessments of expected civilian casualties can assist in determining what other precautions are 

feasible, as well as in determining whether a strike is expected to result in excessive incidental 

harm.

346

5.11.1.3 After-Action Assessments and Investigations. Battle damage 

assessments, as well as other reviews or investigations of incidents involving civilian casualties,

may be appropriate in order to identify measures to mitigate the likelihood of future incidents of 

civilian casualties.347 Similarly, review or investigation may be appropriate after “close call” 

incidents that do not cause civilian casualties but in which post-incident reporting reveals that a

 343 Refer to § 5.11.4 (Canceling or Suspending Attacks Based on New Information Raising Concerns of Expected 

Civilian Casualties).

344 Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

345 Refer to § 5.11.7 (Selecting Military Objective).

346 Refer to § 5.12.1 (Expected Loss of Civilian Life, Injury to Civilians, and Damage to Civilian Objects Incidental 

to the Attack).

347 Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian Casualties 

in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, 44485-86 (§2) (Jul. 1, 2016) (“In 

particular, relevant agencies shall, consistent with mission objectives and applicable law, including the law of armed 

conflict: ... (v) conduct assessments that assist in the reduction of civilian casualties by identifying risks to civilians 

and evaluating efforts to reduce risks to civilians.”).
253

high risk of causing such casualties was not fully understood when relevant decisions were 

made.

348

After such reviews, appropriate actions should be taken to reduce the risk of such 

incidents in the future.

349 For example, such actions could include repairing or inspecting 

equipment, retraining personnel, or changing applicable rules of engagement or operational 

procedures.

Although battle damage assessments or other after-action reviews or investigations of 

whether and how many civilians were harmed by an attack may serve a number of useful 

purposes, the actual results of an attack do not always provide useful information in assessing 

whether the requirements of the principle of proportionality were met in conducting the attack. 

The requirements of the principle of proportionality in conducting attacks are to be met based on

the information available at the time, and the responsibility of commanders is not to be assessed 

on the basis of information known only after the fact.

5.11.2 Identifying Zones in Which Military Objectives Are More Likely to Be Present or 

Civilians Are More Likely to Be Absent. Identifying and designating zones in which military 

objectives are more likely to be present or in which civilians are more likely to be absent may 

also reduce the risk of harm to civilians or other protected persons and objects.

For example, a commander could decide to impose greater restrictions on attacks in areas 

in which civilians are known to be present.350 Similarly, it may be possible to identify areas in 

 348 ARMY TECHNIQUES PUBLICATION 3-07.6, Protection of Civilians, ¶5-49 (Oct. 29, 2015) (“Civilian casualty 

lessons do not come solely from actual civilian casualty incidents, but also from incidents that posed a high risk of 

civilian casualties which did not actually happen. Such near misses can offer valuable lessons and best practices. 

While collecting information on near misses can be a challenge, Soldiers may be more willing to discuss these 

experiences more openly than those involving actual casualties. Leaders should ensure that these incidents are also 

used for training, mentoring, and learning.”).

349 Ash Carter, Secretary of Defense, Memorandum Re: Investigation Review – Secretary of Defense Guidance, 

Apr. 28, 2016 (“Following the airstrike in Kunduz, Afghanistan, on October 3, 2015, that resulted in civilian 

casualties at the Doctors Without Borders Trauma Center, the investigation identified causal factors and specific 

deficiencies. I am committed to ensuring that similar incidents do not occur in the future. Therefore, after 

consulting with the Chairman, I am directing the Combatant Commands and the Services to take the following 

actions within the next 120 days to improve the Joint Force and mitigate the potential for similar incidents in the 

future: Conduct a comprehensive review of relevant policies, tactical directives, and rules of engagement (ROE) to 

clarify conflicting or confusing directives. Ensure they provide appropriate guidance for mission accomplishment, 

including the prevention of civilian casualties, in the complex, changing operational environment. ... Incorporate 

lessons learned from the Kunduz strike in leadership development and operational training to emphasize the role of 

individual judgment and accountability in the execution of mission command.”).

350 For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in

International Security Assistance Force – Afghanistan, Headquarters, General Petraeus Issues Updated Tactical 

Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“Prior to the use of fires, the commander 

approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence, 

fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational 

security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with the 

previous version, does not prevent commanders from protecting the lives of their men and women as a matter of 

self-defense where it is determined no other options are available to effectively counter the threat.).”); U.S.

MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13, Military Operations: Rules of Engagement for the 

Employment of Firepower in the Republic of Vietnam, ¶5g (May 1971), reprinted in 1975 DIGEST OF UNITED 
254

which objects of the greatest military importance are located and to place additional restrictions 

on attacks conducted outside these areas in order to limit unnecessary destruction.351

5.11.3 Adjusting the Timing of the Attack. Adjusting the timing of an attack may reduce 

the risk of incidental harm. For example, attacking a military objective when civilians are less 

likely to be present may be appropriate.352 Similarly, it may be appropriate to wait until enemy 

forces have departed from populated areas before attacking such forces in order to reduce the 

risk of civilian casualties.353

 STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“Specified Strike Zones (SSZ). An area designated for a 

specific period of time by Government of South Viet-Nam (G.V.N.) RVNAF [Republic of Vietnam Armed Forces] 

in which there are no friendly forces or populace and in which targets may be attacked on the initiative of 

U.S./FWMAF/RVNAF commanders. SSZ will not be referred to as ‘Free Fire Zones.’ Furthermore, the term ‘Free 

Fire Zone’ will not be used under any circumstances.”).

351 For example, MALCOLM W. CAGLE & FRANK A. MANSON, THE SEA WAR IN KOREA 97 (1957) (“Vice Admiral 

Struble’s orders to the bombardment forces clearly specified that there should be no promiscuous firing at the city 

itself or at civilian installations. To achieve this, the entire objective area had been divided into 60 sub-areas. 

Known military targets had been previously assigned, and those which offered the greatest potential hazard to our 

landing troops were circled in red. It had been agreed that any ship could fire into a red-circle area with or without a 

‘spot.’ In the uncircled areas, however, firing was permitted only if definite targets were found and an air spot was 

available. This differentiation between types of areas was adopted to reduce destruction of nonmilitary targets to a 

minimum, to save the city of Inchon for occupation forces, and to avoid injury to civilian personnel. ‘The SeoulInchon area is inhabited by our South Korean Allies,’ said Struble in an order to his forces, ‘and our forces plan to 

utilize facilities in this area. Unnecessary destruction will impede our progress. Bombing and gunfire will be 

confined to targets whose destruction will contribute to the conduct of operations – accurate gunfire and pinpoint 

bombing against specific targets, rather than area destruction, is contemplated.’”).

352 For example, Jennifer O’Connor, General Counsel, Department of Defense, Remarks at New York University 

School of Law: Applying the Law of Targeting to the Modern Battlefield, Nov. 28, 2016 (“Given the facts of this 

specific situation, including the intelligence that the cash was being used to pay ISIL fighters and conduct terrorist 

operations, the targeting authority determined that the bulk cash was a legitimate military objective. The next step 

then for the targeting authority before approving the strike was to conduct a proportionality analysis. This bulk cash 

storage site happened to be in an area where civilians were often present—as you might expect from a building that 

used to be a civilian bank before ISIL turned it into a cash storage site. As a result of the high number of civilians in 

the area, the targeting authority took specific steps to minimize potential harm to civilians by ordering the attack to 

occur at a time when the potential for any civilian casualties was deemed to be the lowest.”); FINAL REPORT ON THE 

PERSIAN GULF WAR 100 (noting that during Operation DESERT STORM “attacks on known dual (i.e., military and 

civilian) use facilities normally were scheduled at night, because fewer people would be inside or on the streets 

outside.”).

353 For example, Joby Warrick, ISIS’s Second-in-Command Hid in Syria for Months. The Day He Stepped Out, the 

U.S. Was Waiting, THE WASHINGTON POST, Nov. 28, 2016 (“The Syrian who exhorted thousands of young Muslims 

to don suicide belts appeared increasingly obsessed with his own safety, U.S. officials say. He banished cellphones, 

shunned large meetings and avoided going outdoors in the daytime. He began sleeping in crowded tenements in a 

northern Syrian town called al-Bab, betting on the presence of young children to shield him from the drones 

prowling the skies overhead. But in late August, when a string of military defeats suffered by the Islamic State 

compelled Adnani to briefly leave his hiding place, the Americans were waiting for him. A joint surveillance 

operation by the CIA and the Pentagon tracked the 39-year-old as he left his al-Bab sanctuary and climbed into a car 

with a companion. They were headed north on a rural highway a few miles from town when a Hellfire missile 

struck the vehicle, killing both of them.”); FINAL REPORT ON THE PERSIAN GULF WAR 631 (“The concentration of 

Iraqi military personnel and vehicles, including tanks, invited attack. CINCCENT decided against attack of the Iraqi 

forces in Kuwait City, since it could lead to substantial collateral damage to Kuwaiti civilian property and could 

cause surviving Iraqi units to decide to mount a defense from Kuwait City rather than depart. Iraqi units remaining 

in Kuwait City would cause the Coalition to engage in military operations in urban terrain, a form of fighting that is 
255

5.11.4 Canceling or Suspending Attacks Based on New Information Raising Concerns of 

Expected Civilian Casualties. Commanders may decide to cancel or suspend attacks based on 

new information of expected civilian casualties or authorize subordinates to do so, in order to 

reduce the risk of harm to civilians and civilian objects.

354

Subordinates generally would not be authorized to suspend or cancel attacks contrary to 

specific military orders because they disagree with the commander’s decisions and judgments in 

relation to the principle of proportionality.

355 However, subordinate commanders or engagement 

authorities would be required to report promptly new information of expected civilian casualties 

or to cancel or suspend attacks in appropriate circumstances. For example, aircrews have 

refrained from conducting an attack or have redirected a munition toward a different impact 

location when concerns about civilian harm have become unexpectedly apparent.356

Subordinates should also generally be understood to have the authority to make decisions 

required by the law of war, such as the decision to cancel or suspend an attack in light of new 

information, in order to effectuate the commander’s intent.

357 This is especially true when those 

commanders will not be able to maintain situational awareness of the risks of civilian casualties.

The decision to cancel or suspend an attack based on new information raising concerns of 

expected civilian casualties does not necessarily mean that the attack would have been unlawful, 

such as by violating the prohibition against attacks expected to cause excessive incidental 

harm.

358

5.11.5 Providing Effective Advance Warning Before an Attack That May Affect the 

Civilian Population. Unless circumstances do not permit, effective advance warning must be 

 costly to attacker, defender, innocent civilians, and civilian objects. The decision was made to permit Iraqi forces to 

leave Kuwait City and engage them in the unpopulated area to the north.”).

354 Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: ... (b) An attack shall 

be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special 

protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to 

civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military 

advantage anticipated;”).

355 Refer to § 5.10.2.3 (Duty Not to Comply With Clearly Illegal Orders and the Principle of Proportionality).

356 For example, BBC NEWS, How ‘Shift Cold’ Works, Sept. 12, 2016 (“On 9 September 2015, an unmanned 

coalition aircraft targeted a checkpoint, controlled by the so-called Islamic State, near Shaddadi in Syria. According 

to the US Department of Defense: ‘After the aircraft’s weapon was released, a transient motorcycle approached the 

checkpoint. The aircrew elected to ‘shift cold,’ or identify an alternate location for the weapon to impact, in flight to 

avoid any effects from the impact on the civilians on the motorcycle. The aircrew identified a nearby empty field 

where the weapon impacted.’”).

357 Refer to § 5.10.2.4 (Provision of Substantial Discretion by Commanders to Subordinates).

358 Note that AP I art. 57(2) is framed differently and provides for the cancellation or suspension of attacks as a 

precaution “if it becomes apparent that the objective is not a military one or is subject to special protection or that 

the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a 

combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” 

AP I art. 57(2).
256

given of an attack that may affect the civilian population.359

5.11.5.1 Other Warning Requirements. In addition, warning requirements exist 

before certain medical units, vessels, or facilities forfeit their protection from being made the 

object of attack:

• military medical units and facilities;360

• ground medical transports;361

• hospital ships and sick-bays in warships;362

• civilian hospitals;363 and 

• civilian hospital convoys.364

5.11.5.2 Effective Advance Warning. The purpose of a warning is to facilitate the 

protection of the civilian population so that civilians and the authorities in control of the civilian 

population can take measures to reduce the risk that civilians will be harmed by military 

operations. Although there is no set form for warnings, a warning should be designed to 

accomplish this purpose to the extent feasible.

Warnings may be communicated to the authorities in control of the civilian population, 

such as the national leadership of the enemy State.

365 Warnings may also be delivered directly to 

the civilian population through military information support operations (e.g., broadcasts,

366

 359 HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing a 

bombardment, except in cases of assault, do all in his power to warn the authorities.”); HAGUE IX art. 6 (“If the 

military situation permits, the commander of the attacking naval force, before commencing the bombardment, must 

do his utmost to warn the authorities.”); LIEBER CODE art. 19 (“Commanders, whenever admissible, inform the 

enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may 

be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to 

inform the enemy. Surprise may be a necessity.”). Consider AP I art. 57(2)(c) (“Effective advance warning shall be 

given of attacks which may affect the civilian population, unless circumstances do not permit.”).

360 Refer to § 7.10.3.2 (Due Warning Before Cessation of Protection).

361 Refer to § 7.11.1 (Protection of Ground Medical Transports on the Same Basis as That of Medical Units).

362 Refer to § 7.12.6.1 (Due Warning Before Cessation of Protection).

363 Refer to § 7.17.1.2 (Due Warning Before Cessation of Protection).

364 Refer to § 7.18.1 (Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian Hospitals).

365 HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing a 

bombardment, except in cases of assault, do all in his power to warn the authorities.”) (emphasis added); HAGUE IX

art. 6 (“If the military situation permits, the commander of the attacking naval force, before commencing the 

bombardment, must do his utmost to warn the authorities.”) (emphasis added).

366 For example, Jim Garamone, U.S. Commando Solo II Takes Over Afghan Airwaves, AMERICAN FORCES PRESS 

SERVICE, Oct. 29, 2001 (describing the Commando Solo II flights that use broadcasts “to warn the Afghan 

population to stay away from Taliban and Al Qaeda targets,” including one broadcast that warns civilians to “‘[s]tay 

away from military installations, government buildings, terrorist camps, roads, factories or bridges’”); SPAIGHT, AIR 

POWER AND WAR RIGHTS 242 (“An hour and a half before the Skoda armament works at Pilsen in Czechoslovakia 
257

leaflets367) advising the civilian population of risk of harm if they are near military objectives. 

Low passes of aircraft or warning shots may also be appropriate in certain circumstances.

368

The warnings may be general in nature; giving the specific time and place of an attack is 

not required.

369

 

were attacked by Flying Fortresses of the 8th U.S.A.A.F. on 25 April, 1945, Supreme Allied Headquarters broadcast 

the following warning: ‘Allied bombers are out in great strength to-day. Their destination may be the Skoda works. 

Skoda workers get out and stay out until the afternoon.’”).

367 For example, Jim Garamone, Coalition Aircraft “Paper” Iraq With Leaflets, AMERICAN FORCES PRESS SERVICE, 

Mar. 19, 2003 (stating that Coalition forces “dropped almost 2 million leaflets over Iraq” that “warned Iraqis to stay 

away from military targets”); Report of the United Nations Command Operations in Korea for the Period 1-15 July 

1952, enclosure to Note Dated 8 October 1952 From the Representative of the United States Addressed to the 

Secretary-General Transmitting the Forty-Ninth Report of the United Nations Command Operations in Korea in 

Accordance with the Security Council Resolution of 7 July 1950 (S/1588 ), U.N. Doc. S/2805 (Oct. 9, 1952) (“For 

approximately one month prior to the raid on Pyongyang and other main supply targets, the United Nations 

Command aircraft had dropped leaflets warning civilians to stay away from military targets. Immediately after the 

strikes more leaflets were dropped telling civilians to beware of delayed action bombs and to stay away from bomb 

craters. Every precaution was taken to attack only military targets and to prevent injury to non-combatants. ... In 

consonance with the United Nations policy of taking every possible step both to restore peace and to prevent 

needless loss of life, United Nations Command leaflets and radio broadcasts are being used continually to warn 

civilians in enemy-occupied northern Korea to move away from places where the Communists have concentrated 

war material factories and military equipment, supplies and personnel. These warnings are a humanitarian measure 

taken to minimize civilian loss of life in United Nations Command attacks on military targets.”).

368 For example, Department of Defense Briefing by Operation Inherent Resolve Spokesman Col. Warren (Nov. 18, 

2015) (“In Al-Bukamal, we destroyed 116 tanker trucks, which we believe will reduce ISIL’s ability to transport its 

stolen oil products. This is our first strike against tanker trucks, and to minimize risks to civilians, we conducted a 

leaflet drop prior to the strike. We did a show of force, by -- we had aircraft essentially buzz the trucks at low 

altitude. So, I do have copy of the leaflet, and I have got some videos, so why don’t you pull the leaflet up. Let me 

take a look at it so I can talk about it. As you can see, it’s a fairly simple leaflet, it says, ‘Get out of your trucks now, 

and run away from them.’ A very simple message. And then, also, ‘Warning: airstrikes are coming. Oil trucks will 

be destroyed. Get away from your oil trucks immediately. Do not risk your life.’ And so, these are the leaflets that 

we dropped -- about 45 minutes before the airstrikes actually began. Again, we combine these leaflet drops with 

very low altitude passes of some of our attack aviation, which sends a very powerful message.”); Major Thomas A. 

Wagoner, Staff Judge Advocate, 15th Marine Expeditionary Unit (Special Operations Capable), After Action Report 

for Operation Iraqi Freedom, 7 (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE 

ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN 

AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 108 (2004) (“The one group that 

reported success with warning shots was the LAR [Light Armored Reconnaissance] Company. They explained that 

the warning shots fired from their chain guns at vehicles coming towards them with unknown intentions tended to 

stop the vehicles so they could be searched. They surmised that the size of the LAR was a large part of the success 

in that vehicles clearly saw who was firing at them and rather than risk getting shot they stopped for Marine forces. 

This as compared to infantry forces who were usually unable to see the intended beneficiaries of the warning shots 

and vice versa.”); SPAIGHT, AIR POWER AND WAR RIGHTS 243 (“Before objectives in the French town of Annecy 

were bombed on the night of 9 May, 1944, the alert was sounded by an Allied plane equipped with a siren. It 

cruised over the town for twenty minutes before the first bombers arrived, with the result that the inhabitants had 

time to seek shelter and only those who disregarded the warning were injured.”).

369 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2064 (“A warning need not be specific. It may be a blanket warning, 

delivered by leaflets and/or radio, advising the civilian population of an enemy nation to avoid remaining in 

proximity to military objectives.”).
258

5.11.5.3 That May Affect the Civilian Population. The purpose of a warning to 

facilitate the protection of the civilian population is so that civilians and the authorities in control 

of the civilian population can take measures to reduce the risk that civilians will be harmed by 

military operations. If the civilian population will not be affected by an attack, then there is no 

obligation to provide a warning to facilitate its protection.

370

5.11.5.4 Unless Circumstances Do Not Permit. Circumstances not permitting the 

giving of advance warning include where giving a warning would be incompatible with 

legitimate military requirements, such as exploiting the element of surprise in order to provide 

for mission accomplishment and preserving the security of the attacking force.371

5.11.6 Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points). Depending on 

the circumstances, the process of “weaponeering” in a strike against a target can be used to 

reduce the risk of harm to civilians and civilian objects by selecting munitions of appropriate size 

and type, as well as appropriate aim points, while offering the same or superior military 

advantage in neutralizing or destroying a military objective.

372 For example, it may be 

advantageous to employ incendiary weapons in attacking an adversary’s repository of biological 

weapons so as to prevent the biological agents from adversely affecting the civilian 

population.373

As with other precautions, the decision of which weapon to use will be subject to many 

practical considerations.374 For example, a commander may decide not to use precision-guided

munitions or cyber tools375 because he or she determines it is necessary to preserve those 

capabilities for other engagements.

376

 370 GREENSPAN, MODERN LAW OF LAND WARFARE 338-39 (“Naturally, there is no obligation to give notice where 

no civilians remain, and only the military will come under fire.”).

371 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2064 (“The ‘unless circumstances do not permit’ recognizes the importance 

of the element of surprise. Where surprise is important to mission accomplishment and allowable risk to friendly 

forces, a warning is not required.”).

372 For example, Jim Michaels, Exclusive: Inside the Anti-Islamic State Air Campaign Command Center, USA

TODAY, Sept. 13, 2016 (“Analysts assign the target a collateral damage estimate based on its proximity to civilians 

and the extent that danger to them can be lessened. If there is a risk of hitting nearby buildings, they mitigate the 

risk by choosing smaller bombs or a fuse that can delay the explosion, so, for example, a bomb would only detonate 

after it penetrates the target. Military officers plot each bomb’s point of impact on a building or other target, 

allowing them to measure precisely the blast radius of each explosive they will drop. The selection of munitions can 

produce a precise impact. Recently, a communications tower near a school was hit so that when it collapsed, it fell 

away from a cluster of nearby buildings.”).

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

374 Refer to § 5.2.3.2 (What Precautions Are Feasible).

375 Refer to § 14.9.2 (Selection of Weapons in Conducting Attacks From the Air Against Ground Military 

Objectives); § 16.5.3.1 (Cyber Tools as Potential Measures to Reduce the Risk of Harm to Civilians or Civilian 

Objects).

376 See, e.g., 2013 GERMAN MANUAL ¶1117 (“The law of armed conflict (LOAC) contains no obligation to use 

precision guided ammunition. There may however be situations in which the obligation to discriminate between 
259

5.11.7 Selecting Military Objectives. In planning or conducting an attack, the selection 

of a military objective may reduce the risk of incidental harm. In particular, when attempting to 

achieve a particular military advantage through an attack, a commander may confront a choice 

among several military objectives for achieving that advantage. When facing such a choice, 

provided that all other factors are equal, the object to be selected for attack shall be the object the 

attack on which may be expected to cause the least danger to civilian lives and to civilian 

objects. For example, in seeking to deny an adversary the ability to use a railroad network, it 

may be possible to disable the railroad network just as effectively by striking the railroad lines 

away from inhabited areas as by striking the railroad station located near civilians.377

This rule does not dictate what choices a commander should consider, but presupposes 

that the commander is confronted with a choice of potential military objectives to attack to 

achieve the desired military advantage. In other words, this rule does not prevent the 

commander from attacking multiple military objectives or pursuing every military advantage he 

or she believes warrants pursuit.

When the choice of military objectives involves different risks and benefits potentially 

yielding different military advantages, this rule does not require that the object that may be 

expected to cause the least danger to civilian lives and to civilian objects be chosen for attack. 

For example, a commander could decide to attack a military objective involving higher risks of 

civilian casualties because the attack on that objective affords a greater likelihood of achieving 

the military advantage.

5.11.7.1 AP I Provision on Choice Possible Between Several Military Objectives. 

AP I provides that “[w]hen a choice is possible between several military objectives for obtaining 

a similar military advantage, the objective to be selected shall be that the attack on which may be 

expected to cause the least danger to civilian lives and to civilian objects.”378 The United States 

 

military targets and civilians/civilian objects or the obligation to avoid or minimise collateral damage cannot be 

fulfilled without the use of such weapons.”) (internal cross-reference omitted); 2006 AUSTRALIAN MANUAL ¶8.38

(“The existence of precision-guided weapons, such as GBU 10 and Harpoon missiles, in a military inventory does 

not mean that they must necessarily be used in preference to conventional weapons even though the latter may cause 

collateral damage. In many cases, conventional weapons may be used to bomb legitimate military targets without 

violating the LOAC requirements. It is a command decision as to which weapon to use. This decision will be 

guided by the basic principles of the LOAC: military necessity, avoidance of unnecessary suffering and 

proportionality.”); 2001 CANADIAN MANUAL ¶527(1) (“With the advent of modern technology many armed forces 

are now able to deliver weapons on target with much greater precision. However, states are not limited to the use of 

precision weapons and munitions. An attack by conventional, free-fall weapons or ‘dumb’ bombs is lawful 

provided that the overriding principles of proportionality and superfluous injury/unnecessary suffering as well as 

other applicable rules are not violated.”).

377 See ICRC AP COMMENTARY 687 (¶¶2227-28) (“In this field mention could be made of attacks launched against 

enemy road and rail traffic; some belligerents have tried to attack the adversary only when this would not result in 

severe damage for the population. Instead of attacking railway stations, which are usually located in towns, the 

railway lines were hit at crucial points, but away from inhabited areas; the same action was taken with respect to 

roads. Such examples show that it is possible to choose objectives so that their destruction does not imperil the 

population and civilian objects, while still gaining the same military advantage. There is no doubt with regard to 

[an] economic target of military importance, that it is possible to attack only certain parts the destruction of which 

will result in paralyzing the whole structure.”).

378 AP I art. 57(3).
260

has expressed the view that this language is not a part of customary international law.379 

Whether this AP I provision is consistent with customary international law would depend on how 

AP I Parties interpret it. If this AP I provision is interpreted as described in § 5.11.7 (Selecting 

Military Objectives), then this provision could be understood to be consistent with customary 

international law.

5.12 PROPORTIONALITY – PROHIBITION ON ATTACKS EXPECTED TO CAUSE EXCESSIVE 

INCIDENTAL HARM

Combatants must refrain from attacks in which the expected loss of civilian life, injury to 

civilians, and damage to civilian objects incidental to the attack would be excessive in relation to 

the concrete and direct military advantage expected to be gained.380

This prohibition should be applied as part of the principle of proportionality in 

conducting attacks, and the discussion in this section should be considered in light of the 

discussion in § 5.10 (Proportionality in Conducting Attacks).381

5.12.1 Expected Loss of Civilian Life, Injury to Civilians, and Damage to Civilian 

Objects Incidental to the Attack. The totality of the expected loss of civilian life, injury to 

civilians, and damage to civilian objects incidental to the attack must be considered. AP I uses 

the phrase “a combination thereof” and an “or” to convey that the totality of the expected loss of 

civilian life, injury to civilians, and damage to civilian objects incidental to the attack is to be 

considered.

382

 379 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2064 (“Paragraph 4B(4) contains the language of Article 57(3) of Protocol I, 

and is not a part of customary law. The provision applies ‘when a choice is possible ... ;’ it is not mandatory. An 

attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he 

may determine that it is impossible to make such a determination.”) (amendment shown in Digest).

380 1956 FM 27-10 (Change No. 1 1976) ¶41 (“[L]oss of life and damage to property incidental to attacks must not 

be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or 

decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as 

military objectives or defended places within the meaning of the preceding paragraph but also that these objectives 

may be attacked without probable losses in lives and damage to property disproportionate to the military advantage 

anticipated.”). Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[a]n attack which may 

be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination 

thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”); AP I art. 

57(2)(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain from deciding to launch any attack 

which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a 

combination thereof, which would be excessive in relation to the concrete and direct military advantage 

anticipated;”).

381 Refer to § 5.10 (Proportionality in Conducting Attacks).

382 Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[a]n attack which may be expected 

to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, 

which would be excessive in relation to the concrete and direct military advantage anticipated.”); AP I art. 

57(2)(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain from deciding to launch any attack 

which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a 
261

5.12.1.1 Priority in Considering the Loss of Civilian Life and Damage to Civilian 

Objects. In light of the humanitarian objectives of the law of war, the expected loss of civilian 

life and injury to civilians should be given greater consideration than the expected damage to 

civilian objects.383 Similarly, the expected damage to civilian objects (such as schools, hospitals, 

and religious facilities) should be given greater consideration when such damage is expected to 

involve the risk of harming civilians present inside such objects.

In light of the great importance of cultural property, expected damage to cultural property 

should be afforded greater consideration than expected damage to ordinary property.384

5.12.1.2 Loss of Life, Injury, and Damage Versus Mere Inconveniences or 

Temporary Disruptions. Expected loss of civilian life, injury to civilians, and damage to civilian 

objects must be considered. Mere inconveniences or temporary disruptions to civilian life need 

not be considered in applying this rule.385

For example, although the actual damage to a civilian marketplace from an attack on a 

nearby military objective would be considered, the temporary disruption to commerce from the 

closure of the marketplace due to the nearby attack would not need to be considered.

5.12.1.3 Foreseeable Harms Versus Remote Harms. The expected loss of civilian 

life, injury to civilians, and damage to civilian objects is generally understood to mean such 

immediate or direct harms foreseeably resulting from the attack. Remote harms that could result 

from the attack do not need to be considered in applying this prohibition. The exclusion of 

remote harms is based on the difficulty in accurately predicting the myriad of remote harms from 

 

combination thereof, which would be excessive in relation to the concrete and direct military advantage 

anticipated;”).

383 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063-64 (“While collateral damage to civilian objects should be minimized, 

consistent with the above, collateral damage to civilian objects should not be given the same level of concern as 

incidental injury to civilians.”). Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 368-69 (AP I art. 57, ¶2.10.2) 

(“Humanitarian inclinations would tend to suggest that the avoidance of danger to civilian lives should be preferred 

over that of property. This conclusion is supported by other provisions of Protocol I. For example, a higher 

standard is established by Art. 51, para. 3, for loss of protection by civilians than that which is applicable under the 

two pronged test of Art. 52, para. 2, defining when objects may become military objectives and thus be subject to 

attack. Moreover, while an indiscriminate attack which causes excessive loss of civilian life or injury to civilians 

may be a grave breach under Art. 85, para. 3, the excessive damage to civilian property can support a grave breach 

only if the indiscriminate attack causes death or serious injury to civilian persons.”).

384 Refer to § 5.18.1 (Definition of Cultural Property).

385 See Yoram Dinstein, Distinction and Loss of Civilian Protection in International Armed Conflicts, 84 U.S.

NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, 183, 186 (2008) (“Yet it must be borne in mind that not 

every inconvenience to civilians ought to be considered relevant. In war-time, there are inevitable scarcities of 

foodstuffs and services. Indeed, food, clothing, petrol and other essentials may actually be rationed; buses and trains 

may not run on time; curfews and blackouts may impinge on the quality of life; etc. These do not count in the 

calculus of proportionality.”). Cf. WILLIAM H. BOOTHBY, THE LAW OF TARGETING 370 (2012) (“Issues of 

proportionality do not of course arise where there is no attack. Thus where soft attack methods are adopted 

resulting, perhaps, in inconvenience but neither injury nor damage, there is no requirement to consider that 

inconvenience when deciding whether, and if so how, to undertake the military operation.”).
262

the attack (including the possibility of unrelated or intervening actions that might prevent or 

exacerbate such harms) as well as the primary responsibility of the party controlling the civilian 

population to take measures to ensure that population’s protection.

386

For example, if the destruction of a power plant would be expected to cause the loss of 

civilian life or injury to civilians very soon after the attack due to the loss of power at a 

connected hospital, then such harm should be considered in assessing whether an attack is 

expected to cause excessive harm. On the other hand, the attacker would not be required to 

consider the economic harm that the death of an enemy combatant would cause to his or her 

family, or the loss of jobs due to the destruction of a tank factory.

387 Similarly, in determining 

the expected loss of civilian life, injury to civilians, and damage to civilian objects, the attacker 

would not be required to consider the possibility that a munition might not detonate as intended 

and might injure civilians much later after the attack. This is due to the difficulty in assessing 

such risks and the responsibility of the party controlling the territory and the civilian population 

to take steps with regard to the protection of the civilian population from unexploded 

ordnance.

388

5.12.1.4 Harms Caused by the Attacking Force Versus Harms Caused by Enemy 

Action or Beyond the Control of Either Party. The harm caused by the attacking forces’ actions 

in conducting the attack must be considered. Harm caused by enemy action, or beyond the 

control of either party, need not be considered.

For example, a commander directing an air operation would not need to consider civilians 

injured or killed by counter-attacks from enemy air defense measures, such as spent surface-to-

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

387 For example, Rear Admiral Thomas Wilson, Director of Intelligence, Joint Staff, DoD News Briefing, Apr. 22, 

1999 (“Krusevac tractor plant in Serbia was a new target. You can see here assembly and engineering buildings 

which were involved in manufacturing support or parts for tanks and APCs as well as for civilian vehicles, and we 

had moderate to severe physical damage to these facilities with functional damage assessments being made at this 

time. ... Q: At the Yugo factory there are tens of thousands of Yugoslav workers that can’t work. I take it the tractor 

factory will put thousands out of work. Is that an intended strike against the economy of Milosevic? Rear Admiral 

Wilson: The intent of the strike was to destroy their ability to sustain and repair military vehicles. It’s an 

unfortunate consequence of the leadership's decision to pursue their policies that’s impacting the Yugoslav 

people.”).

388 Christopher Greenwood, Legal Issues Regarding Explosive Remnants Of War, Group of Government Experts of 

States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 

CCW/GGE/I/WP.10 (2002) 8 (“If, for example, cluster weapons are used against military targets in an area where 

there are known to be civilians, then the proportionality test may require that account be taken both of the risk to the 

civilians from sub-munitions exploding during the attack and of the risk from unexploded sub-munitions in the 

hours immediately after the attack. It is an entirely different matter, however, to require that account be taken of the 

longer-term risk posed by [Explosive Remnants of War (ERW)], particularly of the risk which ERW can pose after a 

conflict has ended or after civilians have returned to an area from which they had fled. The degree of that risk turns 

on too many factors which are incapable of assessment at the time of the attack, such as when and whether civilians 

will be permitted to return to an area, what steps the party controlling that area will have taken to clear unexploded 

ordnance, what priority that party gives to the protection of civilians and so forth. The proportionality test has to be 

applied on the basis of information reasonably available at the time of the attack. The risks posed by ERW once the 

immediate aftermath of an attack has passed are too remote to be capable of assessment at that time.”). Refer to

§ 6.20.3 (Taking Feasible Precautions to Protect Civilians From Explosive Remnants of War).
263

air measures or antiaircraft projectiles.

389 Similarly, the risk to the civilian population from the 

legitimate deception activities of the defending force, such as jamming, smoke, or chaff, would 

not need to be considered by the attacking force, although the defending force should consider 

such risks as part of its obligations to take feasible precautions in defense.

390

When the attacking force causes harms that are the responsibility of the defending force

due to its use of voluntary human shields or due to the employment of civilian personnel in or on 

military objectives, the responsibility of the defending force is a factor that may be considered in 

determining whether such harm is excessive.391

5.12.2 Concrete and Direct Military Advantage Expected to Be Gained. The “concrete 

and direct military advantage expected to be gained” must be considered.

The considerations in assessing a “definite military advantage” in the definition of 

“military objective” are also relevant in assessing the “concrete and direct military advantage 

expected to be gained.”392 For example, the military advantage may not be merely hypothetical 

or speculative, although there is no requirement that the military advantage be “immediate.”

There must be a good faith expectation that the attack will make a relevant and 

proportional contribution to the goal of the military attack involved.393 Such goals may include:

(1) denying the enemy the ability to benefit from the object’s effective contribution to its military 

action (e.g., using this object in its military operations); (2) improving the security of the 

 389 See, e.g., FINAL REPORT ON THE PERSIAN GULF WAR 177-78 (During the 1991 Gulf War, “[t]here is also a 

probability that some [incidental civilian] casualties occurred when unexploded Iraqi SAMs [surface-to-air missiles] 

or AAA [antiaircraft artillery] fell back to earth. The often dense fire the Iraqis expended in attempts to shoot down 

Coalition aircraft and cruise missiles almost certainly caused some destruction on the ground from malfunctioning 

fuses or self-destruction features, as well as the simple impact of spent rounds.”).

390 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

391 Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives); § 5.12.3.4

(Enemy Use of Human Shields).

392 New Zealand, Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“3. In relation to paragraph 5(b) 

of Article 51 and to paragraph 2(a)(iii) of Article 57, the Government of New Zealand understands that the military 

advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a 

whole and not only from isolated or particular parts of that attack and that the term ‘military advantage’ involves a 

variety of considerations, including the security of attacking forces.”). Refer to § 5.6.7.3 (Definite Military 

Advantage).

393 Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 474 (“It is further the understanding of 

Australia that the term ‘concrete and direct military advantage anticipated’, used in Articles 51 and 57, means a bona 

fide expectation that the attack will make a relevant and proportional contribution to the objective of the military 

attack involved.”); New Zealand, Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“It is further the 

understanding of the Government of New Zealand that the term ‘concrete and direct military advantage anticipated’, 

used in Articles 51 and 57, means a bona fide expectation that the attack will make a relevant and proportional 

contribution to the objective of the military attack involved.”). See also 2001 CANADIAN MANUAL ¶415(2) (“A 

concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the 

attack will make a relevant contribution to the success of the overall operation.”).
264

attacking force;

394 and (3) diverting enemy forces’ resources and attention.

5.12.2.1 Considering the Advantage From the Attack as a Whole – In the 

Operational and Strategic Context. The military advantage expected from an attack is intended 

to refer to the advantage gained from the attack considered as a whole, rather than only from 

isolated or particular parts of an attack.395 Similarly, “military advantage” is not restricted to 

immediate tactical gains, but may be assessed in the full context of the war strategy.396 The 

military importance of a target often turns on its relationship to other targets within an 

operational system, and the effect that disabling the target will have on the functions that 

comprise the adversary’s ability to wage war.397 For example, an attack against a 

 394 Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473-74 (“In relation to paragraph 5(b) of 

Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia ... that the term ‘military 

advantage’ involves a variety of considerations including the security of attacking forces.”); New Zealand, 

Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“3. In relation to paragraph 5(b) of Article 51 and 

to paragraph 2(a)(iii) of Article 57, the Government of New Zealand understands ... that the term ‘military 

advantage’ involves a variety of considerations, including the security of attacking forces.”); 2001 CANADIAN 

MANUAL ¶415(2) (“Military advantage may include a variety of considerations including the security of the 

attacking forces.”).

395 United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re: Article 51 and 

Article 57 In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer 

to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of 

the attack.”); Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to paragraph 

5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia that references to the 

‘military advantage’ are intended to mean the advantage anticipated from the military attack considered as a whole 

and not only from isolated or particular parts of that attack ... .”); Germany, Statement on Ratification of AP I, Feb. 

14, 1991, 1607 UNTS 526, 529 (“In applying the rule of proportionality in Article 51 and Article 57, ‘military 

advantage’ is understood to refer to the advantage anticipated from the attack considered as a whole and not only 

from isolated or particular parts of the attack.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477 

UNTS 300 (“With regard to Article 51, paragraph 5 and Article 57, paragraphs 2 and 3 of Protocol I: It is the 

understanding of the Government of the Kingdom of the Netherlands that military advantage refers to the advantage 

anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack ... .”).

396 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2064 (“The concept of ‘incidental loss of life excessive in relation to the 

military advantage anticipated’ generally is measured against an overall campaign.”). For example, FINAL REPORT 

ON THE PERSIAN GULF WAR 611 (“An uncodified but similar provision is the principle of proportionality. It 

prohibits military action in which the negative effects (such as collateral civilian casualties) clearly outweigh the 

military gain. This balancing may be done on a target-by-target basis, as frequently was the case during Operation 

Desert Storm, but also may be weighed in overall terms against campaign objectives.”).

397 See, e.g., JOINT PUBLICATION 3-60, Joint Targeting, pp. II-5-II-6 (Jan. 31, 2013) (“While a single target may be 

significant because of its own characteristics, the target’s real importance lies in its relationship to other targets 

within an operational system. A target system is most often considered as a collection of assets directed to perform 

a specific function or series of functions (see Figure II-4). While target systems are intra-dependent to perform a 

specific function, they are also interdependent in support of adversary capabilities (e.g., the electric power system 

may provide energy to run the adversary’s railroads that are a key component of their military logistic system). 

System level target development links these multiple target systems and their components to reflect both their intraand interdependency that, in aggregate, contribute to the adversary capabilities. JIPOE helps target developers 

prioritize an adversary’s target systems based on how much each contributes to the adversary’s ability to wage 

war.”); JOINT PUBLICATION 3-05.5, Joint Special Operations Targeting and Mission Planning Procedures, p. II-5 

(Aug. 10, 1993) (“A single target may be significant because of its own characteristics. Most often, its importance 

lies in its relationship to other targets.”).
265

communications relay that was a military objective might be expected to yield a much greater 

military advantage when the attack was part of a strategy of coordinated attacks to disable the 

adversary’s command and control network than as an isolated attack.398

Consideration of the military advantage of the entire attack in its operational and strategic 

context ensures the proper consideration and allocation of responsibility to the appropriate levels 

within the military hierarchy.399 Lower-level personnel may not be competent to evaluate the 

broader strategic and operational implications of the entire attack.400

5.12.3 Determining Whether the Expected Incidental Harm Is Excessive. A potential 

attack against a military objective is prohibited by this rule only when the expected incidental 

harm is excessive in relation to the concrete and direct military advantage expected to be gained.

Determining whether the expected incidental harm is excessive does not necessarily lend 

itself to quantitative analysis because the comparison is often between unlike quantities and 

values.

401 The evaluation of expected incidental harm in relation to expected military advantage 

intrinsically involves both professional military judgments as well as moral and ethical 

judgments evaluating the risks to human life (e.g., civilians at risk from the attack, friendly 

forces or civilians at risk if the attack is not taken).

On the one hand, striking an ammunition depot or a terrorist training camp would not be 

prohibited because a farmer is plowing a field in the area.402 On the other hand, an extraordinary 

 398 For example, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 

Campaign Against the Federal Republic of Yugoslavia, ¶78 (Jun. 13, 2000) (“The FRY command and control 

network was alleged by NATO to comprise a complex web and that could thus not be disabled in one strike. ... The 

proportionality or otherwise of an attack should not necessarily focus exclusively on a specific incident. (See in this 

regard para. 52, above, referring to the need for an overall assessment of the totality of civilian victims as against the 

goals of the military campaign). With regard to these goals, the strategic target of these attacks was the Yugoslav 

command and control network. The attack on the RTS building must therefore be seen as forming part of an 

integrated attack against numerous objects, including transmission towers and control buildings of the Yugoslav 

radio relay network which were ‘essential to Milosevic’s ability to direct and control the repressive activities of his 

army and special police forces in Kosovo’ (NATO press release, 1 May 1999) and which comprised ‘a key element 

in the Yugoslav air-defence network’ (ibid, 1 May1999).”).

399 2013 GERMAN MANUAL (“In accordance with a statement made by the Federal Republic of Germany upon the 

deposit of the instrument of ratification of the Additional Protocols, a military advantage is the advantage expected 

to result from the entire attack and not from the individual acts that constitute the attack (46). This ensures the 

proper consideration and allocation of responsibility to the appropriate levels within the military hierarchy.”).

400 Refer to § 5.10.2.1 (Need for Competent Authority to Make the Decisions and Judgments Required by the 

Principle of Proportionality).

401 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“The main problem with the principle of 

proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to 

state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral 

effects. ... Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much 

easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of 

circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the 

value of innocent human lives as opposed to capturing a particular military objective.”).

402 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“For example, bombing a refugee camp is 
266

military advantage would be necessary to justify an operation posing risks of collateral death or 

injury to thousands of civilians.403 In less clear-cut cases, the legal question of whether the 

expected incidental harm is excessive may be a “highly open-ended” inquiry, and the answer 

may be “subjective and imprecise.”404 For this reason, States have chosen to apply a “clearly 

excessive” standard for determining whether a criminal violation has occurred.

405

 

obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers. 

Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a 

field in the area.”); ROGERS, LAW ON THE BATTLEFIELD 64-65 (“Accepting at face value for the sake of legal 

analysis a press report of a pilot whose attack on an army lorry and a busload of soldiers also killed a small boy in a 

civilian car, this could not be said to have violated the proportionality principle.”).

403 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 335 (“[A]n attack on a war factory which is known to 

be of minor importance cannot justify the incidental destruction of the whole town where it is situated.”). For 

example, W. Hays Parks, The 1977 Protocols to the Geneva Convention of 1949, 68 U.S. NAVAL WAR COLLEGE 

INTERNATIONAL LAW STUDIES 467, 470 (1995) (“During the Vietnam War, for example, the North Vietnamese 

installed substantial concentrations of antiaircraft guns and missiles on the earthware dikes and dams surrounding 

Haiphong and Hanoi. Military necessity warranted airstrikes against these positions. However, attack of the 

positions with conventional ordnance would destroy not only the enemy positions but the dams as well. This would 

result in massive flooding and in the probable deaths of several hundred thousand civilians, a cost U.S. authorities 

concluded was disproportionate to the military advantage to be gained. When the mission finally was approved by 

President Nixon, it was executed with a clear proviso that only antipersonnel bombs, capable of neutralization of the 

positions without substantial damage to the dikes, would be used.”).

404 Statement of Interest of the United States of America, Matar v. Dichter, 05 Civ. 10270 (WHP) (S.D.N.Y. Nov. 17, 

2006), 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 465, 471-72 (“Along similar lines, 

plaintiffs cite Article 57 of Additional Protocol I, which provides, inter alia, that ‘[t]hose who plan or decide upon 

an attack shall ... [r]efrain from deciding to launch any attack which may be expected to cause incidental loss 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.’ Additional Protocol I, Art. 57, cl. 2(a)(iii). 

Again, the rub lies in determining what counts as ‘excessive.’ Any number of intangibles must be [c]onsidered: 

How important is the military objective sought to be achieved? What are the pros and cons of each option available 

to achieve that objective? For each option, what is the probability of success? What are the costs of failure? What 

are the risks of civilian casualties involved in each option? What are the risks of military casualties involved in each 

option? How are casualties of either kind to be weighed against the benefits of the operation? In short, questions of 

proportionality are highly open-ended, and the answers to them tend to be subjective and imprecise.”).

405 See, e.g., III OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON 

THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 229, 232 (2002) (United States of America: proposal 

regarding an annex on definitional elements for part 2 crimes, A/CONF.183/C.1/L.10) (“Proportionality. The 

principle of proportionality prohibits attacks which are expected to cause incidental loss of civilian life, injury to 

civilians, damage to civilian objects, or a combination thereof, which would be clearly excessive in relation to the 

overall advantage anticipated;”); Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers Case, 

Decision, Apr. 16, 2010, as reprinted and translated by the International Committee of the Red Cross at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v2_cou_de_rule14_sectionb (“Even if the killing of several dozen 

civilians would have had to be anticipated (which is assumed here for the sake of the argument), from a tacticalmilitary perspective this would not have been out of proportion to the anticipated military advantages. The literature 

consistently points out that general criteria are not available for the assessment of specific proportionality because 

unlike legal goods, values and interests are juxtaposed which cannot be ‘balanced’ ... Therefore, considering the 

particular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in cases 

of obvious excess where the commander ignored any considerations of proportionality and refrained from acting 

‘honestly’, ‘reasonably’ and ‘competently’ ... This would apply to the destruction of an entire village with hundreds 

of civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positions 

in the village ... There is no such obvious disproportionality in the present case. Both the destruction of the fuel 

tankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not 
267

In determining whether the expected incidental harm would be excessive, the totality of 

the circumstances must be considered. This holistic judgment should consider any relevant 

moral, legal, and military factors.

5.12.3.1 The Military Concept of Economy of Force. As with the obligation to 

take feasible precautions, the prohibition on attacks expected to cause excessive incidental harm 

involves military judgments.406 Use of excessive and indiscriminate force is costly, highly 

inefficient, and wasteful of scarce resources.

The principle of proportionality has been viewed as a legal restatement of the military 

concept of economy of force.407 Economy of force seeks to allocate the maximum possible 

combat power on primary efforts through the judicious employment and distribution of forces 

and the measured allocation of available combat power.408

 

least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians. 

There is thus no excess.”). Consider ROME STATUTE art. 8(2)(b)(iv) (defining “war crimes” for the purposes of the 

Statute to include, in the context of international armed conflict, “[i]ntentionally launching an attack in the 

knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 

widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to 

the concrete and direct overall military advantage anticipated;”). See also U.S. RESPONSE TO ICRC CIHL STUDY

528 endnote 30 (“One of the U.S. concerns has been that Articles 35(3) and 55 [of AP I] fail to acknowledge that 

use of such weapons is prohibited only if their use is clearly excessive in relation to the concrete and direct overall 

military advantage anticipated.”); FINAL REPORT ON THE PERSIAN GULF WAR 611 (“An uncodified but similar 

provision is the principle of proportionality. It prohibits military action in which the negative effects (such as 

collateral civilian casualties) clearly outweigh the military gain.”); BOTHE, PARTSCH, & SOLF, NEW RULES 309-10 

footnote 30 (AP I art. 51, ¶2.6.2) (“As the two sides of the equation cannot be quantified, it seems that only an 

obvious imbalance can be considered ‘disproportionate’ or ‘excessive’.”); APPENDIX TO 1985 CJCS MEMO ON AP I, 

Annex: Draft Reservations and Understandings, 3 (providing a draft understanding that “in relation to Articles 

51(5)(b), 52(2), and 57(2)(a)(iii) that the military advantage anticipated from an attack must be considered as a 

whole and not only from isolated or particular parts of the attack and that incidental civilian losses are excessive 

only when tantamount to the total disregard for the safety of the civilian population.”).

406 Refer to § 5.2.3.3 (The Taking of Precautions and Law, Policy, and Practice).

407 General George S. Brown, Chairman of the Joint Chiefs of Staff, Address: Duke University School of Law, Oct. 

10, 1974, reprinted in ADDRESSES AND STATEMENTS BY GENERAL GEORGE S. BROWN, USAF, CHAIRMAN, JOINT 

CHIEF OF STAFF 1974-1978 (1978) (“We recognize that wanton destruction and unnecessary suffering are both 

violations of these military developed legal principles and counterproductive to the political military goals of the 

Nation. The law of ‘proportionality’ is simply a legal restatement of the time honored military concept of ‘economy 

of force.’”); 1989 NWP 9 ¶5.2 footnote 8, p. 5-8 (“Economy of force means that no more--or less--effort should be 

devoted to a task than is necessary to achieve the objective. This implies the correct selection and use of weapons 

and weapon systems, maximum productivity from available weapons platforms, and careful balance in the allocation 

of tasks. This principle is embodied in the fundamental legal principle of proportionality.”).

408 JOINT PUBLICATION 3-0, Joint Operations, A-2 (Aug. 11, 2011) (“e. Economy of Force (1) The purpose of 

economy of force is to expend minimum essential combat power on secondary efforts in order to allocate the 

maximum possible combat power on primary efforts. (2) Economy of force is the judicious employment and 

distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, 

defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point and 

time.”). See also CARL VON CLAUSEWITZ, ON WAR 213 (1989) (“If a segment of one’s force is located where it is 

not sufficiently busy with the enemy, or if troops are on the march—that is, idle—while the enemy is fighting, then 

these forces are being managed uneconomically. When the time for action comes, the first requirement should be 

that all parts must act: even the least appropriate task will occupy some of the enemy’s forces and reduce his overall 

strength, while completely inactive troops are neutralized for the time being.”).
268

Although mere poor military judgment or substandard operational practice is not by itself 

unlawful, if a strike would be so wasteful of resources as to be inconsistent with the principle of 

economy of force, this is a factor counseling against taking the contemplated strike.

5.12.3.2 Feasibility of Taking Additional Precautions to Reduce the Risk of 

Incidental Harm. Incidental harm is more likely to be regarded as excessive in attacks in which 

it would be feasible to take additional precautions and those precautions are not taken.

409 

The obligation to take feasible precautions is fundamentally connected to the prohibition 

on attacks expected to cause excessive incidental harm, and the two obligations are mutually 

reinforcing.

410 Thus, although the obligation to take feasible precautions applies even if an 

attack is expected not to cause excessive incidental harm, incidental harm expected to result from 

strikes in which additional precautions are feasible, but have not been taken, would be more 

likely to be considered excessive.

5.12.3.3 Civilian Workers Who Support Military Operations In or On Military 

Objectives. In general, reasonable steps must be taken to separate the civilian population from 

military objectives, such as by removing members of the civilian population from the vicinity of 

military objectives and combat operations.

411 However, sometimes civilian personnel work in or 

on military objectives in order to support military operations. For example, civilian workers 

sometimes serve as members of military aircrews, as technical advisers on warships, and as 

workers in munitions factories. Such persons assume a certain risk of injury.412 Provided such 

workers are not taking a direct part in hostilities, those determining whether a planned attack 

would be excessive must consider such workers, and feasible precautions must be taken to 

 409 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

410 Refer to § 5.10.5 (Relationship Between the Requirement to Take Feasible Precautions in Planning and 

Conducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

411 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

412 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“Likewise, civilians working within or in the immediate vicinity of a 

legitimate military objective assume a certain risk of injury.”). See also BOTHE, PARTSCH, & SOLF, NEW RULES 295 

(AP I art. 50, ¶2.2.2) (“By being within, or in the vicinity of a military objective, these civilians assume the risk of 

collateral injury from the effects of attack. It is also doubtful that incidental injury to persons serving the armed 

forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part of 

the civilian population which is not so closely linked to military operations.”); The Sixth Annual American Red 

Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary 

International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions: Remarks of Lieutenant 

Colonel Burrus M. Carnahan, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 505, 510 

(“State practice, on the other hand, suggests the existence of at least one intermediate category: persons who, while 

not taking a direct part in hostilities, are so intimately connected with a military objective that they have forfeited the 

right to be free from risk of collateral damage.”); Waldemar A. Solf, Protection of Civilians Against the Effects of 

Hostilities under Customary International law and Under Protocol I, 1 AMERICAN UNIVERSITY INTERNATIONAL 

LAW REVIEW 117, 131 (1986) (“Thus, while a civilian may not lose his protection against individualized attack 

while working in a munitions plant, he assumes the risk of collateral injury when he is in the vicinity of the 

munitions plant, although he continues to retain full protection while at home.”).
269

reduce the risk of harm to them. Those making such determinations may consider all relevant 

facts and circumstances.

The expected harm to civilian members of military aircrews on military aircraft or 

civilian technical advisers on warships does not render military aircraft or warships immune 

from attack.

413 Similarly, munitions factories have not been deemed to be immune from attack 

just because of the presence of civilian workers inside the factory.

414

5.12.3.4 Enemy Use of Human Shields. Adversary use of human shields can 

present complex moral, ethical, legal, and policy considerations.415 Use of civilians as human 

shields violates the rule that protected persons may not be used to shield, favor, or impede 

military operations.416 The party that employs human shields in an attempt to shield military 

 413 2001 CANADIAN MANUAL ¶425 (“For targeting purposes, the presence of civilians who are authorized to 

accompany the armed forces without actually being members thereof (such as crews of military aircraft, war

correspondents, supply contractors or members of services responsible for the welfare of the armed forces) does not 

render a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate 

target.”).

414 See, e.g., Spain, Orientaciones. El Derecho de los Conflictos Armadas, Tomo 1, Publicacion OR7-0004 (Edicion 

Segunda), Mando de adiestramiento y Doctrina, Direccion de Doctrina, Organica y Materiales, Nov. 2, 2007, § 4.4e, 

as reprinted and translated by the International Committee of the Red Cross at https://www.icrc.org/customaryihl/eng/docs/v2_rul_rule8_sectioni (“Indirect objectives are those that cannot be directly attacked, but may suffer the 

consequences of an attack on a military objective. Civilians ... are considered to be indirect objectives that may 

suffer the effects of an attack on a legitimate military target in the following cases: - presence in the vicinity of a 

military objective, with a view to shielding it from attacks; - activities that support military operations (labour units, 

workers in weapons factories, etc.).”) (ellipsis in ICRC reprint); Spain, Orientaciones. El Derecho de los Conflictos 

Armados, Publicacion OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejercito, Division de Operaciones, 

Mar. 18, 1996, Vol. I, §4.4e, as reprinted and translated by the International Committee of the Red Cross at 

https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule8_sectioni (“indirect objectives” are objectives “which may 

not be the object of a direct attack but which can suffer the consequences of an attack upon a military objective. 

Such is the case for civilians ... who may suffer the effects of an attack upon a legitimate military objective due to: –

their proximity to a military objective aimed at shielding that objective against attack; – their carrying out activities 

supporting military operations (units of workers, workers in arms factories, etc.”) (ellipsis in ICRC reprint); Federal 

Republic of Germany, Federal Ministry of Defence, Humanitarian law in Armed Conflicts Manual ¶445 (August 

1992) (“Civilians present in military objectives are not protected against attacks directed at these objectives; the 

presence of civilian workers in an arms production plant, for instance, will not prevent opposing armed forces from 

attacking this military objective.”); Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Reglement 

51.7/II f, Armee Suisse, 1987, Article 28 and commentary, as reprinted and translated by the International 

Committee of the Red Cross at https://www.icrc.org/customary-ihl/eng/docs/v2_cou_ch_rule8_sectioni (“Civilians 

who are inside or in the immediate vicinity of military objectives run the risks to which the military objectives are 

exposed. For example, the presence of civilian workers inside a weapons factory does not prevent the enemy from 

attacking this military objective.”).

415 Cf. Presidential Policy Directive 30, U.S. Nationals Taken Hostage Abroad and Personnel Recovery Efforts, June 

24, 2015 (“The United States will use every appropriate resource to gain the safe return of U.S. nationals who are 

held hostage. But the United States Government will make no concessions to individuals or groups holding U.S. 

nationals hostage. It is United States policy to deny hostage-takers the benefits of ransom, prisoner releases, policy 

changes, or other acts of concession. This policy protects U.S. nationals and strengthens national security by 

removing a key incentive for hostage-takers to target U.S. nationals, thereby interrupting the vicious cycle of 

hostage-takings, and by helping to deny terrorists and other malicious actors the money, personnel, and other 

resources they need to conduct attacks against the United States, its nationals, and its interests.”).

416 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).
270

objectives from attack assumes responsibility for their injury, although the attacker may share 

this responsibility if it fails to take feasible precautions.417

If civilians are being used as human shields, provided they are not taking a direct part in 

hostilities, they must be considered as civilians in determining whether a planned attack would 

be excessive, and feasible precautions must be taken to reduce the risk of harm to them.418 

However, the enemy use of voluntary human shields may be considered as a factor in assessing 

the legality of an attack. Based on the facts and circumstances of a particular case, the 

commander may determine that persons characterized as voluntary human shields are taking a 

direct part in hostilities.

419

5.13 ATTACKS ON FACILITIES, WORKS, OR INSTALLATIONS CONTAINING DANGEROUS FORCES

Certain facilities containing dangerous forces, such as dams, nuclear power plants, or 

facilities producing weapons of mass destruction, may constitute military objectives. There may 

be a number of reasons for their attack, such as denial of electric power to military sources, use 

of a dangerous facility (e.g., by causing release from a dam) to damage or destroy other military 

objectives, or to pre-empt enemy release of the dangerous forces to hamper the movement or 

advance of U.S. or allied forces.420

Attack of facilities, works, or installations containing dangerous forces, such as dams, 

nuclear power plants, or facilities producing weapons of mass destruction, is permissible so long 

as it is conducted in accordance with other applicable rules, including the rules of discrimination 

and proportionality.421 In light of the increased potential magnitude of incidental harm, 

additional precautions, such as weaponeering or timing the attack such that weather conditions 

would minimize dispersion of dangerous materials, may be appropriate to reduce the risk that the 

release of these dangerous forces may pose to the civilian population.422 

5.13.1 AP I Provisions on Works and Installations Containing Dangerous Forces. Article 

 417 Refer to § 5.16.5 (Responsibility for Harm to Human Shields). See also 2004 UK MANUAL ¶2.7.2 (“Even where 

human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians 

or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military 

objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on 

those objectives.”) (footnote omitted).

418 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

419 Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

420 For example, Mark L. Evans and C. Ross Bloodsworth, The Dambusters at Hwachon, NAVAL AVIATION NEWS

22, 23 (May-Jun. 2001) (explaining the military significance of Hwachon Dam during the Korean war by noting that 

the enemy’s control of the facility allowed them to “flood the valley and stop further UN advances” or “[i]f they 

held back the water by closing the gates, the river would be lowered to fordable depths and enable communist 

infiltration across the river against the exposed allied flanks.”).

421 Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected 

to Cause Excessive Incidental Harm).

422 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).
271

56 of AP I provides special rules for works and installations containing dangerous forces. For 

example, “[w]orks or installations containing dangerous forces, namely dams, dykes and nuclear 

electrical generating stations, shall not be made the object of attack, even where these objects are 

military objectives, if such attack may cause the release of dangerous forces and consequent 

severe losses among the civilian population.” In addition, Article 56 of AP I provides immunity 

from attack to combatants and military equipment stationed or placed around works and 

installations containing dangerous forces “for the sole purpose of defending the protected 

works.”

The United States has objected to this article of AP I.423 In ratifying AP I, other States 

have taken reservations from this article.424 Insofar as Article 56 of AP I deviates from the 

regular application of the principles of distinction and proportionality, the U.S. view has been

that it does not reflect customary international law applicable in international and noninternational armed conflicts.

5.14 FEASIBLE PRECAUTIONS TO REDUCE THE RISK OF HARM TO PROTECTED PERSONS AND 

OBJECTS BY THE PARTY SUBJECT TO ATTACK

Outside the context of conducting attacks (such as when conducting defense planning or 

other military operations), parties to a conflict should also take feasible precautions to reduce the 

risk of harm to protected persons and objects from the effects of enemy attacks.

425 In particular, 

 423 See The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. 

Sofaer, Legal Adviser, United States Department of State, Jan. 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF 

INTERNATIONAL LAW AND POLICY 460, 468 (1987) (“Article 56 of Protocol I is designed to protect dams, dikes, and 

nuclear power plants against attacks that could result in ‘severe’ civilian losses. As its negotiating history indicates, 

this article would protect objects that would be considered legitimate military objectives under customary 

international law. Attacks on such military objectives would be prohibited if ‘severe’ civilian casualties might result 

from flooding or release of radiation. The negotiating history throws little light on what level of civilian losses 

would be ‘severe.’ It is clear, however, that under this article, civilian losses are not to be balanced against the 

military value of the target. If severe losses would result, then the attack is forbidden, no matter how important the 

target. It also appears that article 56 forbids any attack that raises the possibility of severe civilian losses, even 

though considerable care is taken to avoid them.”).

424 See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“Re. Articles 56 

and 85, paragraph 3 (c) The United Kingdom cannot undertake to grant absolute protection to installations which 

may contribute to the opposing Party’s war effort, or to the defenders of such installations, but will take all due 

precautions in military operations at or near the installations referred to in paragraph 1 of Article 56 in the light of 

the known facts, including any special marking which the installation may carry, to avoid severe collateral losses 

among civilian populations; direct attacks on such installations will be launched only on authorization at a high level 

of command.”); France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF 

ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“The 

Government of the French Republic cannot guarantee an absolute protection to the works and installations 

containing dangerous forces which may contribute to the opposing Party’s war effort, or to the defenders of such 

installations, but will take all precautions referred to the provisions of Article 56, of Article 57, paragraph 2(a)(iii) 

and of paragraph 3(c) of Article 85 in order to avoid severe collateral losses among the civilian populations, 

including possible direct attacks.”).

425 Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: (a) Without prejudice 

to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian 

objects under their control from the vicinity of military objectives; (b) Avoid locating military objectives within or 

near densely populated areas; (c) Take the other necessary precautions to protect the civilian population, individual 

civilians and civilian objects under their control against the dangers resulting from military operations.”).
272

military commanders and other officials responsible for the safety of the civilian population must 

take reasonable steps to separate the civilian population from military objectives and to protect 

the civilian population from the effects of combat. As discussed in § 5.2.3.2 (What Precautions 

Are Feasible), what precautions are feasible depends greatly on the context.

426 Feasible 

precautions by the party subject to attack may include the following:

5.14.1 Refraining From Placing Military Objectives in Densely Populated Areas. It may 

be appropriate to avoid placing military objectives, such as the armed forces, in urban or other 

densely populated areas, in order to reduce the risk of incidental harm to the civilian 

population.427

However, it often may not be feasible to refrain from placing military objectives in 

densely populated areas. Legitimate military reasons often require locating or billeting military 

forces in urban areas or other areas where civilians are present. For example, forces may be 

housed in populated areas to take advantage of existing facilities, such as facilities for shelter, 

health and sanitation, communications, or power. In some cases, especially during counterinsurgency operations or in non-international armed conflict generally, the protection of the 

civilian population may be increased by placing military forces in densely populated areas to 

protect the civilian population from enemy attack and influence.

428

5.14.2 Removing Civilians and Civilian Objects From the Vicinity of Military 

Objectives. It may be appropriate to remove civilians and civilian objects from the vicinity of 

military objectives.

429 In particular, civilian hospitals should be situated as far as possible from 

military objectives.430 

The evacuation of civilians from areas likely to be attacked is advisable when there is 

immediate danger and where it would be likely to involve less hardship and danger to civilians 

than leaving them in place.431

Voluntary removal of civilians may be accomplished through the use of warnings.

432 

When removing civilians from the vicinity of military objectives, it may be appropriate to 

establish safety, hospital, or neutralized zones so that civilians have safe places to move 

 426 Refer to § 5.2.3.2 (What Precautions Are Feasible).

427 Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: ... (b) Avoid locating 

military objectives within or near densely populated areas;”).

428 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect 

Them).

429 Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: (a) Without prejudice 

to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian 

objects under their control from the vicinity of military objectives;”).

430 Refer to § 7.17.3 (Location of Civilian Hospitals).

431 2004 UK MANUAL ¶5.36.1 (“The evacuation of civilians from areas likely to be attacked is advisable when there 

is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them 

in place.”).

432 Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).
273

toward.

433 

It also may be appropriate to conclude local agreements for the removal of civilians from 

besieged or encircled areas.434

During international armed conflict, the forcible transfer or deportation of protected 

persons from occupied territory is prohibited.435

5.14.3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected. 

Certain zones or localities may be established through the agreement of parties to a conflict to 

shelter civilians or wounded and sick combatants from the effects of attacks.436

In this context, “locality” means a specific place of limited area, generally containing 

buildings, while “zone” means a relatively large area of land and may include one or more 

localities.437

5.14.3.1 Civilian Hospital and Safety Zones and Localities. During international 

armed conflict, States may establish hospital and safety zones and localities to protect certain 

persons from the effects of war, namely, wounded, sick, and aged persons, children under fifteen, 

expectant mothers, and mothers of children under seven.438 Parties to a conflict may conclude 

agreements on the mutual recognition of the hospital zones and localities they have created, 

drawing upon model agreements that are annexed to the 1949 Geneva Conventions.439 The 

establishment of a zone only binds an adverse party when it agrees to recognize the zone.440 

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

434 Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular 

Personnel, the Wounded and Sick, and Medical Personnel).

435 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

436 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE 

VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND 

HUMANITARIAN ACTION (1982) 26 (1984) (“At Britain’s suggestion, and without any special agreement in writing, 

the Parties to the conflict established a neutral zone at sea. This zone, called the Red Cross Box, with a diameter of 

approximately twenty nautical miles, was located on the high seas to the north of the islands. Without hampering 

military operations, it enabled hospital ships to hold position, in particular the UGANDA, and exchange British and 

Argentine wounded.”).

437 GC COMMENTARY 120-21 (“Locality should be taken to mean a specific place of limited area, generally 

containing buildings. The term zone is used to describe a relatively large area of land and may include one or more 

localities.”).

438 GC art. 14 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties 

thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones and 

localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen, 

expectant mothers and mothers of children under seven.”).

439 GC art. 14 (“Upon the outbreak and during the course of hostilities, the Parties concerned may conclude 

agreements on mutual recognition of the zones and localities they have created. They may for this purpose 

implement the provisions of the Draft Agreement annexed to the present Convention, with such amendments as they 

may consider necessary.”).

440 GC COMMENTARY 127 (“The zones will not, strictly speaking, have any legal existence, or enjoy protection 

under the Convention, until such time as they have been recognized by the adverse Party. This will entail the 
274

These zones and localities may be combined with hospital zones established for the wounded and 

sick of the armed forces.441

Protecting Powers and the ICRC may seek to facilitate the institution and recognition of 

civilian hospital and safety zones and localities.442

5.14.3.2 Military Hospital Zones and Localities. States may establish in their 

own territory, and if the need arises, in occupied areas, hospital zones and localities so organized 

as to protect the wounded and sick (as defined in the GWS443) from the effects of war, as well as 

the personnel entrusted with the organization and administration of these zones and localities and 

with the care of the persons assembled within them.444

5.14.3.3 Neutralized Zones. It may be appropriate to conclude agreements with 

opposing forces to establish neutralized zones in regions where fighting is taking place.

445 

Neutralized zones differ from civilian hospital and safety zones in that they are intended to 

protect a broader group of persons and in that they are generally established on a temporary basis 

in regions where fighting is taking place.446

 

conclusion of an agreement between the Power which has established zones in its territory and the Powers with 

which it is at war. It is only an agreement of this kind, concluded, as a general rule, after the outbreak of hostilities, 

which gives legal form to the obligation on States which have accorded recognition to zones to respect those zones. 

An agreement recognizing the zones is thus a sine qua non of their legal existence from the international point of 

view. It should contain all the provisions, particularly in regard to control procedure, required to prevent disputes 

arising later in regard to its interpretation.”).

441 GC COMMENTARY 125 (“As has already been pointed out, the provisions relating to hospital and safety zones in 

the First and Fourth Geneva Conventions are sufficiently flexible to make various combinations possible. There is, 

for instance, no reason why a hospital zone should not combine the two types and provide shelter for both soldiers 

and civilians in need of treatment, since once a soldier is wounded or sick, he may be said to be no longer a 

combatant on either side, but simply a suffering, inoffensive human being.”).

442 GC art. 14 (“The Protecting Powers and the International Committee of the Red Cross are invited to lend their 

good offices in order to facilitate the institution and recognition of these hospital and safety zones and localities.”).

443 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).

444 GWS art. 23 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties 

thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital zones and localities so 

organized as to protect the wounded and sick from the effects of war, as well as the personnel entrusted with the 

organization and administration of these zones and localities and with the care of the persons therein assembled.”).

445 For example, 2004 UK MANUAL ¶5.40.1 footnote 258 (“During the Falklands conflict of 1982, a neutralized zone 

was set up in the centre of Port Stanley, comprising the cathedral and a clearly defined area around it. This was 

done at the suggestion of the ICRC representative and with the consent of the Argentine and British authorities.”); 

SPAIGHT, AIR POWER AND WAR RIGHTS 256 (“With the consent of both the Chinese and Japanese military 

authorities a district known as Nantao, lying between the French concession and a densely populated part of the old 

Chinese city, was selected and cleared of all troops, munition factories and other military establishments, and its 

boundaries were marked by flags. ... ‘The outstanding success of this scheme at Shanghai ... led very quickly to the 

adoption of similar arrangements at Hankow and other great Chinese cities that were liable to bombardment, and it 

may be accepted that the lives of tens, if not of hundreds, of thousands of hapless Chinese have thus been saved.’”).

446 GC COMMENTARY 129 (“[N]eutralized zones differ from hospital and safety zones in that they are established in 

the actual regions where fighting is taking place and are intended to give shelter to both civilian and military 

wounded and sick, as well as all civilian persons who take no part in hostilities. Furthermore, they are generally set 
275

These neutralized zones are to shelter: (a) wounded and sick combatants or 

noncombatants; and (b) civilian persons who take no part in hostilities, and who, while they 

reside in the zones, perform no work of a military character.

447

Agreements should be made in writing, signed by representatives of the parties to the 

conflict, and should establish: (a) the location of the zone; (b) the administration of the zone; (c) 

the food supply of the zone; (d) the supervision of the zone; and (e) the beginning and duration 

of the neutralization of the zone.448

5.14.4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as 

Such. It may be appropriate to identify protected persons and objects, as such, through the use of 

distinctive and visible signs. For example, it may be appropriate to identify civilian hospitals449

or civilian air raid shelters in order to facilitate their protection during enemy bombardment.450 

Signs indicating civilian objects, as such, should be notified to the opposing party so that the 

opposing party knows to refrain from bombarding places or buildings bearing these signs.

Where enemy forces seek to make peaceful civilians the object of attack, then it would 

not be appropriate to distinguish civilian objects. Such precautions would not be feasible 

because they would not be expected to yield a humanitarian benefit.451

5.14.5 Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces 

to Distinguish Themselves From the Civilian Population. Although the practices of carrying 

arms openly and wearing uniforms and distinctive emblems by armed forces predates 

 

up on a temporary basis to meet the tactical situation at a particular moment, whereas hospital and safety zones tend 

to be more permanent in character.”).

447 GC art. 15 (“Any Party to the conflict may, either direct or through a neutral State or some humanitarian 

organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized 

zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sick 

combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the 

zones, perform no work of a military character.”).

448 GC art. 15 (“When the Parties concerned have agreed upon the geographical position, administration, food 

supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the 

representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the 

neutralization of the zone.”).

449 Refer to § 7.17.2.2 (Markings of Civilian Hospitals With the Distinctive Emblem).

450 See, e.g., HAGUE IV REG. art. 27 (“In sieges and bombardments all necessary steps must be taken to spare, as far 

as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and 

places where the sick and wounded are collected, provided they are not being used at the time for military purposes. 

It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, 

which shall be notified to the enemy beforehand.”); HAGUE IX art. 5 (“In bombardments by naval forces all the 

necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for 

artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are 

collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the 

inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large stiff 

rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower 

portion white.”).

451 Refer to § 5.2.3.2 (What Precautions Are Feasible).
276

contemporary doctrines of feasible precautions, these practices may be viewed as feasible 

precautions that help protect the civilian population from being erroneously made the object of 

attack.

452

This requirement of armed forces to wear distinctive emblems has been understood as a 

requirement for the armed forces as a group.

453 However, it applies, to some extent, on an 

individual basis in the context of liability for spying or sabotage.454 The obligation of armed 

forces to distinguish themselves includes, but is not limited to, those times when they conduct 

attacks.455 However, the requirement to wear distinctive emblems is not an absolute one, even 

during combat.

456

5.15 UNDEFENDED CITIES, TOWNS, AND VILLAGES

Attack, by whatever means, of a village, town, or city that is undefended is prohibited.457

Undefended villages, towns, or cities may, however, be captured.

5.15.1 “Undefended” – Notes on Terminology. The term undefended city (or town or 

village, or any other populated area) is a term of art in the law of war and should not be confused 

with a place that simply lacks defensive capabilities. Historically, open or undefended status for 

a town, village, or city would be sought as opposing military forces approached and the military 

forces previously controlling the city abandoned it.

458 Undefended or open status would 

essentially surrender the city to the opposing force; this minimized injury to the inhabitants and 

damage to civilian objects within the city because the city could be occupied without resistance 

or bypassed.459

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

453 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

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

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

456 Refer to § 5.4.8.1 (Fighting Out of Uniform).

457 See HAGUE IV REG. art. 25 (“The attack or bombardment, by whatever means, of towns, villages, dwellings, or 

buildings which are undefended is prohibited.”); HAGUE IX art. 1 (“The bombardment by naval forces of 

undefended ports, towns, villages, dwellings, or buildings is forbidden.”). Consider AP I art. 59(1) (“It is prohibited 

for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.”).

458 For example, H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995) 

(“When the military forces had abandoned the city, the city’s civic leaders normally had the burden of meeting with 

the opposing commander and informing him that the city was open. Accordingly, the mayor of Columbia, South 

Carolina, went to the Union lines as General Sherman approached the city and informed him that the Confederate 

forces had left and that the city was open for the Union army’s entry. When the Confederate government was forced 

to abandon Richmond, Virginia, the mayor met the advancing Union forces and informed General Grant’s 

commanders that the city was open. Once the capturing forces entered the city, they were obligated to refrain from 

looting and pillaging and were responsible for the safety of the city’s residents. Nonetheless, war materials still in 

the city could be destroyed.”).

459 H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995) (“Surrender 

usually meant the complete submission of the military forces defending an area to the enemy. However, when the 

opposing military forces simply abandoned the city, the city was considered to be undefended and ‘open.’ That is, 

the attacking force could enter the city at will and without fear of attack. Under these circumstances destroying the 
277

5.15.1.1 Non-defended Versus Undefended. Article 59 of AP I uses the term 

“non-defended” rather than “undefended,” but uses essentially the same criteria as FM 27-10’s 

discussion of “undefended” places within the meaning of Article 25 of the Hague IV 

Regulations. The change from “undefended” in the Hague IV Regulations and Hague IX, to 

“non-defended” in AP I, appears to reflect a difference in translation from French to English 

rather than a substantive difference.

The original text of the Hague IV Regulations and Hague IX is French.460 In the French 

versions of the text, both the Hague IV Regulations and Hague IX use a dependent clause “that 

are not defended” in order to modify the list of places.

461 Rather than a dependent clause, AP I 

uses an adjective -- “non-defended” modifying the word “localities.”462 The difference in 

English terms seems to reflect this underlying change in the French phrasing. 

Moreover, the title of the chapter in Hague IX—“Du bombardement des ports, villes, 

villages, habitations ou bâtiments non défendus” (emphasis added)—uses the same French 

phrase as is used in AP I, yet the last two words of the title of the chapter in Hague IX have 

typically been translated as “undefended” rather than “non-defended.” 

Thus, the consistency in terminology across the French texts suggests that even though 

the English terminology has varied slightly, no substantive change has been intended.

5.15.1.2 Open Versus Undefended. If “undefended” is simply understood in a 

factual sense to mean a lack of defenses and “open” is simply understood in a factual sense to 

mean “open” for entry by the enemy, then distinctions could be drawn between “open” cities and 

“undefended” cities, because not all cities lacking defenses would be open for entry by enemy 

forces. For example, a city that did not itself have defenses, but was located deep behind the 

State’s defensive lines would not be “open” for entry by enemy forces. 

Most sources, however, use “open” and “undefended” interchangeably.463 It appears that 

these terms tend to be used interchangeably because both terms generally refer to a specific legal 

 

entire city was unnecessary, although individual military targets in the city might be destroyed, either before or after 

entry.”).

460 William H. Taft, Proclamation Regarding the Hague IX, Feb. 28, 1910, 36 STAT. 2351 (“Whereas a Convention 

concerning bombardment by naval forces in time of war was concluded ... the original of which Convention, being 

in the French language, is word for word as follows:”); William H. Taft, Proclamation Regarding the Hague IV, 

Feb. 28, 1910, 36 STAT. 2277 (“Whereas a Convention respecting the laws and customs of war on land was 

concluded ... the original of which Convention, being in the French language, is word for word as follows:”).

461 See HAGUE IV REG. art. 25 (“Il est interdit d’attaquer ou de bombarder, par quelque moyen que ce soit, des villes, 

villages, habitations, ou bâtiments qui ne sont pas défendus.”) (emphasis added); HAGUE IX art. 1 (“Il est interdit de 

bombarder, par des forces navales, des ports, villes, villages, habitations ou bâtiments, qui ne sont pas défendus.”) 

(emphasis added).

462 See AP I art. 59, 1125 UNTS 299 (“Il est interdit aux Parties au conflit d’attaquer, par quelque moyen que ce soit, 

des localités non défendues.”) (emphasis added).

463 See, e.g., 1958 UK MANUAL ¶290 (“An undefended or ‘open’ town is a town which is so completely undefended 

from within or without that the enemy may enter and take possession of it without fighting or incurring casualties.”).
278

category of populated areas that are protected by the law of war from attack.

464

5.15.2 “By Whatever Means”. The phrase “by whatever means” was inserted in the 

Hague IV Regulations to clarify that bombing attacks by air were included in the rule.465 

5.15.3 Declaration of a City as “Undefended”. An undefended city may be established 

through negotiations with opposing forces,466 or unilaterally by the party to the conflict in 

control of it. If the latter, the intent and actions of that party should be communicated to 

opposing military forces through a declaration. A town, village, or city may be declared 

“undefended” when it is near, or in, a zone where opposing armed forces are in contact with one

another and it is open for immediate physical occupation by an adverse party without 

resistance.

467

5.15.3.1 Open for Immediate Physical Occupation. The area in question must be 

open for immediate physical occupation by opposing military ground forces.468 Thus, a city in 

rear areas behind enemy lines cannot be “undefended.” For example, a party to a conflict cannot 

declare a city or other population center to be undefended if it is several hundred miles behind 

the area of ground conflict where it would not be feasible for opposing ground forces to occupy 

it. By way of comparison, it would not be effective for a person to seek to surrender to an 

opposing force’s aircraft that could not physically take custody of that person.

469

5.15.3.2 Necessity for a Declaration of Undefended Status. Although there is no 

explicit treaty requirement that a city be declared undefended before achieving that status, the 

practice has been to make such declarations to the opposing party. Without them, a belligerent 

 464 See R.Y. Jennings, Open Towns, 22 BYIL 258, 260-61 (1945) (“There can be little doubt that the land warfare 

rules exempted the ‘open and undefended’ town from bombardment because, being undefended, it was, under the 

conditions of contemporary warfare, open for the enemy to enter and take possession of, or destroy, its military 

resources. This quality of being open to entry by the enemy is the essence of the rule. ... It is impossible to 

conceive of a truly undefended town which is not also open in every sense of the word.”).

465 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907

104 (1920) (“The Russian and Italian proposals had the same design, and were calculated to supplement Article 25 

of the 1899 Regulations with a provision securing to undefended towns, villages, dwellings or buildings absolute 

immunity from all attack or bombardment, ‘even by aid of balloons or other new methods of a similar nature.’ ... 

The delegation of France then observed that the prohibition contemplated by the new Russian text, while entirely 

conforming to its opinion as previously expressed, is already contained in the text now in force in Article 25, and 

that consequently it is sufficient, if deemed necessary to avoid misunderstanding by rendering its terms precise, to 

insert the words ‘by any means whatever’ after ‘to attack or bombard.’”).

466 Refer to § 5.15.5 (Agreements to Establish Undefended Cities).

467 1956 FM 27-10 (Change No. 1 1976) ¶39b (“An undefended place, within the meaning of Article 25, HR, is any 

inhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by an 

adverse party without resistance.”). Consider AP art. 59(2) (“The appropriate authorities of a Party to the conflict 

may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact 

which is open for occupation by an adverse Party.”).

468 BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.5.1) (“The concept intended is that it is sufficiently 

close to the adverse Party’s forces that tactical movement to occupy it is a feasible course of action by the advancing 

force.”).

469 Refer to § 5.9.3.3 (Under Circumstances in Which It Is Feasible to Accept).
279

would have no way of knowing whether a city was truly open for occupation without resistance. 

For example, a city may not satisfy the conditions described below for undefended status, or it 

may contain defenses that are concealed or that are operated from other areas.470

5.15.3.3 Refusal to Recognize a Declaration. Belligerents may refuse to 

recognize a declaration that a city is undefended if they assess that it does not satisfy all of the 

necessary conditions, although they should notify the opposing belligerent of that decision.471 

Absent or until recognition, military objectives in a city unilaterally designated as undefended 

remain subject to attack.472

5.15.3.4 Authority to Make a Declaration or to Recognize a Declaration. 

Declaration of a city being open or recognition of an opposing party’s declaration may only be 

accomplished by those with authority to enforce the corresponding obligations, which may be the 

immediate military commander, theater commander, or national command authorities.473 These 

obligations may extend more broadly than control over the city itself as, for example, when the 

city’s defenses are operated from a different location.

5.15.4 Conditions Necessary for a Place to Maintain Undefended Status. Once a party to 

a conflict has validly declared a city to be undefended, the city must also satisfy certain 

conditions. If the city fails to satisfy these conditions, it would not be entitled to undefended 

status, or, if previously granted, it would lose that status.474 Persons and objects within that city, 

 470 R.Y. Jennings, Open Towns, 22 BYIL 258, 261 (1945) (“But it is ludicrous to suppose that a town shielded by an 

army holding a line in front of it is undefended. Moreover, even the defences peculiarly appropriate to aerial 

warfare are no longer purely or even mainly local defences. Defending fighter planes may be based miles from the 

town. A screen of anti-aircraft guns sited on the route to the town, even though many miles away from it, may be a 

more effective defence than anti-aircraft guns sited in or around the town itself.”).

471 Consider AP I art. 59(4) (“The Party to the conflict to which the declaration is addressed shall ackowledge [sic] 

its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are 

not in fact fullfilled, in which event it shall immediately so inform the Party making the declaration.”).

472 Cf. Sansolini and Others v. Bentivegna and Others, Italian Court of Cassation, Jul. 19, 1957 (“The declaration 

that Rome was an open city was made by the Italian Government before the armistice, viz., on July 31, 1943. It was 

made to the British and the Americans but never accepted by them. It follows from this lack of acceptance that the 

declaration could not create any legal obligation for the Italian Government vis-à-vis the British and the Americans. 

... We must therefore reject the contention that there was any violation of an undertaking to respect Rome as an 

open city because there were not agreements to this effect ... .”); BOTHE, PARTSCH, & SOLF, NEW RULES 383 (AP I 

art. 59, ¶2.5.2) (“Drawing on the World War II experience, the Canadian delegation pointed out that the decision not 

to defend Paris and Rome had been made while defending forces still had possession of these urban centres. 

Accordingly, the Canadian delegation proposed that a mechanism be developed under which the defending Party 

would declare that it did not intend to defend the locality and to initiate negotiations for permitting an orderly 

withdrawal. The locality was not to be attacked while such negotiation was taking place. Other delegations pointed 

out that the Canadian proposal would amount to a unilateral cease fire enabling the defending force to extricate itself 

from a precarious situation. This matter was left for mutual agreement between the Parties under para. 5.”).

473 For example, R.Y. Jennings, Open Towns, 22 BYIL 258, 263 (1945) (“The declaration of Rome as an open city 

by the Italian Government in August 1943 was little more than a public request to the Allies to state the conditions 

under which they would discontinue their bombing attacks on the city. The Allies were unable to comply with the 

request for the very good reason that however anxious the Italian Government might have been to comply with any 

conditions, they were in fact powerless to prevent the German Army from using the city as a military centre.”).

474 Consider AP I art. 59(7) (“A locality loses its status as a non-defended locality when it ceases to fulfil the 

conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5.”).
280

however, may still receive other protections for civilians and civilian objects.475

5.15.4.1 Combatants and Mobile Military Equipment Have Been Evacuated. All 

combatants, as well as their mobile weapons and mobile military equipment, must have been 

evacuated.476 However, the presence of military medical personnel, the wounded and sick, and 

civilian police forces for the purpose of maintaining local law and order would not cause a city

designated as undefended to lose that status.477

5.15.4.2 No Hostile Use of Fixed Military Facilities. No hostile use shall be made 

of fixed military installations or establishments within the city.478

5.15.4.3 No Hostile Acts Against the Occupying Force. Hostile acts may not be 

committed by the local civilian authorities or the civilian population against the occupying 

military force.479

5.15.4.4 No Activities in Support of Military Operations. No activities in support 

of military operations may be undertaken.480 For example, factories in the city should not be 

used to manufacture munitions, and ports or railroads should not be used to transport military 

supplies.481

 475 Consider AP I art. 59(7) (“In such an eventuality, the locality shall continue to enjoy the protection provided by 

the other provisions of this Protocol and the other rules of international law applicable in armed conflict.”).

476 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following 

conditions should be fulfilled: (1) Armed forces and all other combatants, as well as mobile weapons and mobile 

military equipment, must have been evacuated, or otherwise neutralized;”). Consider AP I art. 59(2) (requiring that 

in a non-defended locality “(a) All combatants, as well as mobile weapons and mobile military equipment, must 

have been evacuated;”).

477 1956 FM 27-10 (Change No. 1 1976) ¶39b (“The presence, in the place, of medical units, wounded and sick, and 

police forces retained for the sole purpose of maintaining law and order does not change the character of such an 

undefended place.”). Consider AP I art. 59(3) (“The presence, in this locality, of persons specially protected under 

the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order, is 

not contrary to the conditions laid down in paragraph 2.”). Compare § 4.23.1 (Police as Civilians).

478 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following 

conditions should be fulfilled: ... (2) no hostile use shall be made of fixed military installations or establishments;”). 

Consider AP I art. 59(2) (requiring that in a non-defended locality “(b) No hostile use shall be made of fixed 

military installations or establishments;”).

479 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following 

conditions should be fulfilled: ... (3) no acts of warfare shall be committed by the authorities or by the 

population;”). Consider AP I art. 59(2) (requiring that in a non-defended locality “(c) No acts of hostility shall be 

committed by the authorities or by the population;”).

480 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following 

conditions should be fulfilled: ... (4) no activities in support of military operations shall be undertaken.”). Consider

AP I art. 59(2) (requiring that in a non-defended locality “(d) No activities in support of military operations shall be 

undertaken.”).

481 For example, F.D. ROOSEVELT & S. ROSENMAN, THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D.

ROOSEVELT: 1943 VOLUME 309 (1950) (“The Nine Hundred and Tenth Press Conference (Excerpts) July 23, 1943 

(Rome as a military center - Bombing of Rome) Q. Mr. President, is there any comment you can make, sir, upon 

establishing Rome as an open city? THE PRESIDENT: I think the easiest thing is to tell you in general what has 
281

5.15.5 Agreements to Establish Undefended Cities. Even if the conditions described 

above are not met, parties to a conflict may agree between themselves to treat an area as an 

undefended city.

482 The agreement should be in writing and should define and describe, as 

precisely as possible, the limits of the undefended city (such as the exact geographic limits of the 

locality, when the location is to begin to receive protection as undefended, and the duration of 

undefended status). If necessary, methods of supervision to ensure that the city continues to 

fulfill the conditions should be specified.

483 It may also be appropriate for agreements to 

specify: (1) rules on marking the city and agreed signs;484 (2) persons authorized to enter the 

city; and (3) whether and under what conditions the city may be occupied by enemy forces.

5.15.6 Actions of the Occupying Force. The occupying force may use the city, town, or 

village for military operations, including by establishing defenses to prevent its recapture by the 

enemy.485 In such cases, the city would lose its undefended status, and, for example, military 

objectives within the city may be attacked.486 

However, if the occupying force acts in a manner consistent with the conditions

necessary for the inhabited place to maintain undefended status,

487 the place would remain 

undefended for the purpose of protecting it against military operations by all parties to the 

conflict.

 

been happening for over a year. We have been very anxious to have Rome declared an open city. However, the 

Fascists would not do it; and on the contrary, it has become—probably was then—a very important military center. 

That means they were making munitions, and using airports very close to Rome-actually in Rome, and the use of 

Rome because it’s a railroad center for transportation of troops, guns, and ammunition down to the south of Rome. 

And we used every argument, and pleaded that it be made an open city. But it didn’t work. We did our best. And 

we still hope that the Germans and the Fascists will make it an open city.”).

482 Consider AP I art. 59(5) (“The Parties to the conflict may agree on the establishment of non-defended localities 

even if such localities do not fulfil the conditions laid down in paragraph 2.”).

483 Consider AP I art. 59(5) (“The agreement should define and describe, as precisely as possible, the limits of the 

non-defended locality; if necessary, it may lay down the methods of supervision.”).

484 Consider AP I art. 59(6) (“The Party which is in control of a locality governed by such an agreement shall mark 

it, so far as possible, by such signs as may be agreed upon with the other Party, which shall be displayed where they 

are clearly visible, especially on its perimeter and limits and on highways.”).

485 BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.4) (“Once in possession of a previously nondefended locality a Party is not bound to refrain from organizing its defense to maintain the security of the locality 

against an attempt to recapture the locality.”).

486 See The Legal Adviser (Hackworth) to Secretary of State Hull, memorandum, Aug. 19, 1943, X WHITEMAN’S 

DIGEST 437 (“If our troops were in Rome [after the United States had recognized it as an open city] or passing 

through Rome, they would be subject to bombardment by Germany and hence the city would be in the same position 

as French cities, including Paris, were after they were occupied by German forces or were being used for military 

purposes. It appears that in the last war French cities, such as Vouziers, Charleville, and Mézières, regarded as open 

cities were bombarded by the French after they had been occupied by Germany. The sum and substance of these 

examples is that the status of a city may change from an undefended to a defended place as military operations 

change, and that recognition by use of Rome as an open city would mean only that we could not bomb it while it 

was so recognized, but that if we later used it ourselves, it would again become subject to bombardment.”).

487 Refer to § 5.15.4 (Conditions Necessary for a Place to Maintain Undefended Status).
282

5.16 PROHIBITION ON USING PROTECTED PERSONS AND OBJECTS TO SHIELD, FAVOR, OR IMPEDE 

MILITARY OPERATIONS

Parties to a conflict may not use the presence or movement of protected persons488 or

objects489: (1) to attempt to make certain points or areas immune from seizure or attack; (2) to 

shield military objectives from attack; or (3) otherwise to shield or favor one’s own military 

operations or to impede the adversary’s military operations.

Protected Persons and Objects. In particular, the civilian population,490 5.16.1 protected 

persons under the GC,491 POWs,492 fixed medical establishments and medical units, 

parlementaires and other persons protected by a flag of truce,493 and cultural property are 

protected persons and objects that may not be used for the above purposes.

Although persons and objects that are protected by the law of war may not be used in 

these ways, this rule does not prohibit a party from using what would otherwise be a civilian 

object for military purposes and thereby converting it to a military objective that is not protected 

by the law of war. For example, a building that previously was a civilian object could be used 

for military purposes (including as cover) and would not implicate this rule because it would no 

longer be a protected object. Similarly, this rule does not prohibit persons who would otherwise 

be civilians from participating in hostilities or otherwise assuming the risks inherent in 

 488 Cf. 10 U.S.C. § 950t (“(9) USING PROTECTED PERSONS AS A SHIELD.—Any person subject to this chapter who 

positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from 

attack. [sic] or to shield, favor, or impede military operations, shall be punished, if death results to one or more of 

the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death 

does not result to any of the victims, by such punishment, other than death, as a military commission under this 

chapter may direct.”); 10 U.S.C. § 950p (a)(3) (“The term ‘protected person’ means any person entitled to protection 

under one or more of the Geneva Conventions, including civilians not taking an active part in hostilities, military 

personnel placed out of combat by sickness, wounds, or detention, and military medical or religious personnel.”).

489 Cf. 10 U.S.C. § 950t (“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who 

positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military 

objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission 

under this chapter may direct.”); 10 U.S.C. § 950p(a)(3) (“The term ‘protected property’ means any property 

specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or 

charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, but only if 

and to the extent such property is not being used for military purposes or is not otherwise a military objective. The 

term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not 

include civilian property that is a military objective.”).

490 Consider AP I 51(7) (“The presence or movements of the civilian population or individual civilians shall not be 

used to render certain points or areas immune from military operations, in particular in attempts to shield military 

objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct 

the movement of the civilian population or individual civilians in order to attempt to shield military objectives from 

attacks or to shield military operations.”).

491 GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune from 

military operations.”).

492 Refer to § 9.5.2.3 (No Exposure to a Combat Zone or Use as a Human Shield).

493 Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).
283

supporting military operations.

494

5.16.2 Intent to Endanger Protected Persons or Objects to Deter Enemy Military 

Operations. The essence of this rule is to refrain from deliberately endangering protected 

persons or objects for the purpose of deterring enemy military operations.

495 This absolute duty 

to refrain from purposeful misconduct may be contrasted with the affirmative obligation that 

parties have to take feasible precautions to separate the civilian population,496 civilian 

internees,

497 POWs,498 fixed medical establishments and medical units,499 and cultural 

property,500 from the dangers of military operations. 

An adversary’s intention to violate this rule is likely to be clear because that adversary 

normally would make it apparent to the opposing party that attacks against the military objective

being shielded would risk harming protected persons or objects.

501 

On the other hand, in the absence of purposeful action to put protected persons and 

objects at risk of harm from enemy military operations, there would be no violation of this rule. 

For example, this rule would not prohibit restricting the movement of civilians in order to 

conduct military operations without their interference. In addition, it would also not prohibit the 

 494 Refer § 4.15.2.2 (Employment in Hostilities); § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of 

War); § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

495 BOTHE, PARTSCH, & SOLF, NEW RULES 316 (AP I art. 51, ¶2.8.2) (“The mandatory provisions of para. 7 are 

intended to prohibit any deliberate use of the physical presence or physical movement of civilians for the purpose of 

shielding or favouring friendly military operations against enemy action or to impede enemy military operations. ... 

In practice this means that in some close cases the location of a military objective in the midst of a populated town 

may violate para. 7 if the purpose of the location is to shield the military unit or facility from attack. On the other 

hand, the same act could be innocent if it were militarily necessary to so situate the unit or facility. Thus the 

subjective intent of military commander is the controlling element in determining whether there has been a breach of 

para. 7, a negligent failure to take the precautions urged by Art. 58, or a legitimate act of war.”).

496 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

497 Refer to § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).

498 Refer to § 9.11.3 (Location of POW Camps).

499 Refer to § 7.10.2 (Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives).

500 Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or 

Damage).

501 For example, STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICAN 

PRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 316-21 (1998) (“Between June and October 1967 the North 

Vietnamese confined more than 30 U.S. PWs in the vicinity of the Yen Phu thermal power plant in northern Hanoi. 

... Although the Communists would deny it, their conspicuous display and virtual announcement of the PWs’ 

presence at the power plant evidenced a transparent attempt to use the prisoners as hostages to discourage U.S. 

bombing of the facility. ... Through calculated disclosures to visiting journalists and diplomats, local placard 

publicity, and exhibiting the captives in full view of civilians—all sharp departures from their normal practice—the 

Vietnamese could be certain the PWs’ presence would be reported to the U.S. government. ... The hostage charade 

did not deter U.S. strikes on the target. The plant was attacked regularly after 13 August, with apparently no 

casualties and conflicting reports on the extent of damage to the power facility and PW cellblocks.”).
284

evacuation of civilians for their own security or for imperative military reasons.502 

In addition, this rule must not be understood to alter the rules on spying and sabotage. In 

other words, this rule does not prohibit a spy from hiding among civilians in order to gather 

intelligence. However, the spy runs the risk of prosecution by the enemy State if he or she is 

discovered and captured while spying.

Prohibition on Taking Hostages. The taking of hostages is prohibited.503 5.16.3 This 

prohibition is understood to include a prohibition against threatening to harm detainees whose 

lives are valued by the adversary in order to induce the adversary not to attack, but is also 

understood to include the prohibition against using hostages as human shields.504

The taking of hostages is also prohibited in non-international armed conflict.505

5.16.4 Use of Human Shields by Defenders Does Not Relieve Attackers of Duties in 

Conducting Attacks. Violations by the adversary of the prohibition on using protected persons 

and objects to shield, favor, or impede military operations do not relieve those conducting attacks 

from their obligation to seek to discriminate between lawful and unlawful objects of attack.506 

However, such violations by the adversary may impair the attacking force’s ability to 

discriminate and increase the risk of harm to protected persons and objects.

507

 502 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 317 (AP I art. 51, ¶2.8.3) (“Paragraph 7 [of Article 51 of AP I] does 

not prohibit measures to restrict the movement of civilians so as to avoid their interference with military movement, 

nor does it prohibit ordering their evacuation if their security or imperative military reasons so demand.”).

503 GC art. 34 (“The taking of hostages is prohibited.”). Cf. 18 U.S.C. § 2441(d)(1)(I) (defining “Taking hostages” 

as “The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or 

continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or 

group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such 

person or persons.”); 10 U.S.C. § 950t(7) (“TAKING HOSTAGES.—Any person subject to this chapter who, having 

knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or 

persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain 

from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, 

if death results to one or more of the victims, by death or such other punishment as a military commission under this 

chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a 

military commission under this chapter may direct.”).

504 GC COMMENTARY 230 (giving as examples of hostage taking: (1) “taking as hostages persons generally selected 

from among prominent persons in a city or a district in order to prevent disorders or attacks on occupation troops”; 

(2) “arresting after an attack a certain number of inhabitants of the occupied territory and announcing that they will 

be kept captive or executed if the guilty are not given up”; and (3) “the practice of taking so-called accompanying 

hostages consists of placing inhabitants of occupied territory on board lorry convoys or trains in order to prevent 

attacks by their compatriots”).

505 Refer to § 17.6.2 (Prohibition on the Taking of Hostages).

506 Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to 

Discriminate in Conducting Attacks).

507 FINAL REPORT ON THE PERSIAN GULF WAR 613 (“Another reason for collateral damage to civilian objects and 

injury to civilians during Operation Desert Storm lay in the policy of the Government of Iraq, which purposely used 

both Iraqi and Kuwaiti civilian populations and civilian objects as shields for military objects. Contrary to the 

admonishment against such conduct contained in Article 19, GWS, Articles 18 and 28, GC, Article 4(1), 1954 

Hague, and certain principles of customary law codified in Protocol I (discussed below), the Government of Iraq 
285

Although human shields who are civilians are to be considered as civilians in determining 

whether a planned attack would be excessive, enemy use of voluntary human shields may be 

considered as a factor in assessing the legality of an attack.

508 Feasible precautions must be 

taken to reduce the risk of harm to human shields.

5.16.5 Responsibility for Harm to Human Shields. The party that employs human shields 

in an attempt to shield military objectives from attack assumes responsibility for their injury, 

although the attacker may share this responsibility if it fails to take feasible precautions.

509

5.17 SEIZURE AND DESTRUCTION OF ENEMY PROPERTY

Outside the context of attacks, certain rules apply to the seizure and destruction of enemy 

property: 

• Enemy property may not be seized or destroyed unless imperatively demanded by the 

necessities of war;

• Public movable property and certain types of private movable property may customarily 

be captured as war booty;

• Enemy private movable property that is not susceptible of direct military use may be 

appropriated only to the extent that such taking is permissible in occupied areas;

• Pillage is prohibited; and

• Feasible precautions should be taken to mitigate the burden on civilians, but there is no

obligation to compensate the owners of enemy property that is lawfully damaged.

 

placed military assets (personnel, weapons, and equipment) in civilian populated areas and next to protected objects 

(mosques, medical facilities, and cultural sites) in an effort to protect them from attack. For this purpose, Iraqi 

military helicopters were dispersed into residential areas; and military supplies were stored in mosques, schools, and 

hospitals in Iraq and Kuwait. Similarly, a cache of Iraqi Silkworm surface-to-surface missiles was found inside a 

school in a populated area in Kuwait City. UN inspectors uncovered chemical bomb production equipment while 

inspecting a sugar factory in Iraq. The equipment had been moved to the site to escape Coalition air strikes. This 

intentional mingling of military objects with civilian objects naturally placed the civilian population living nearby, 

working within, or using those civilian objects at risk from legitimate military attacks on those military objects.”).

508 Refer to § 5.12.3.4 (Enemy Use of Human Shields).

509 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of 

International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 1991-1999 2057, 2063 (“In no case may a combatant force utilize individual civilians or the 

civilian population to shield a military objective from attack. A nation that utilizes civilians to shield a target from 

attack assumes responsibility for their injury, so long as an attacker exercises reasonable precaution in executing its 

operations. Likewise, civilians working within or in the immediate vicinity of a legitimate military objective assume 

a certain risk of injury.”); Instructor Training Course, ¶3g, Appendix C in DEPARTMENT OF THE ARMY SUBJECT 

SCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 18 (Aug. 29, 1975) (“(4) 

Question: Suppose we are receiving fire from the enemy, and they are using unarmed civilians as shields. May we 

fire back, knowing that we will be killing many of these unarmed civilians? Answer: Yes. We may fire since we 

have the right to defend ourselves. The responsibility for innocent casualties falls upon those who would violate the 

law of war by using innocents as shields.”).
286

During occupation, other rules relating to the treatment of enemy property apply.510

5.17.1 Definition of Enemy Property. All property located in enemy territory is regarded 

as enemy property regardless of its ownership.511 

5.17.2 Enemy Property – Military Necessity Standard. Enemy property may not be 

seized or destroyed unless imperatively demanded by the necessities of war.512 In particular, 

devastation or destruction may not be pursued as an end in itself.513 The measure of permissible 

seizure or destruction of enemy property is found in the strict necessities of war.514 There must 

be some reasonable connection between the seizure or destruction of the enemy property and the 

overcoming of enemy forces.515

Extensive destruction and appropriation of property protected by the GC, not justified by 

military necessity and carried out unlawfully and wantonly, constitutes a grave breach of the 

GC.516

5.17.2.1 Using the Military Objective Definition to Assess Whether the Seizure or 

Destruction of Enemy Property Is Justified by Military Necessity. The definition of military 

objective (that has been developed to assess whether objects may be made the object of attack)

may be applied outside the context of attacks to assess whether an object’s seizure or destruction 

is justified by imperative military necessity.517 After all, if sufficient military necessity exists to 

justify attacking an object as reflected by that object meeting the definition of military objective, 

then imperative military necessity would also exist to justify seizing or destroying that object by 

measures short of attack.

On the other hand, if imperative military necessity justifies the seizure or destruction of 

an object, that object does not necessarily satisfy the definition of a military objective. Rather, 

the object must be assessed as to whether it meets the definition of military objective and may be 

 510 Refer to § 11.18 (Enemy Property During Occupation).

511 See, e.g., Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391 (Ct. Cl. 1970) (collecting cases and describing 

“the general rule that all property located in enemy territory, regardless of its ownership, is in time of war regarded 

as enemy property subject to the laws of war”).

512 HAGUE IV REG. art. 23(g) (“[I]t is especially forbidden: ... (g.) To destroy or seize the enemy’s property, unless 

such destruction or seizure be imperatively demanded by the necessities of war;”). For general discussion of 

military necessity, refer to § 2.2 (Military Necessity).

513 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Devastation as an end in itself or as a separate measure of war is not 

sanctioned by the law of war.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS 

BEFORE THE NMT 1253 (“Destruction as an end in itself is a violation of international law.”). Refer to § 2.3.1

(Humanity as a Prohibition).

514 1956 FM 27-10 (Change No. 1 1976) ¶56 (“The measure of permissible devastation is found in the strict 

necessities of war.”).

515 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54

(“There must be some reasonable connection between the destruction of property and the overcoming of the enemy 

forces.”).

516 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

517 Refer to § 5.6.5 (Definition of Military Objective for Objects: A Two-Part Test).
287

made the object of attack.

5.17.2.2 Seizure or Destruction of Enemy Property to Support Military 

Operations. It may be imperatively demanded by the necessities of war to seize or destroy 

enemy property in order to support military operations. These examples are illustrative and not 

exhaustive:

• using enemy land for the construction of military bases, air fields, and other facilities to 

support military operations;518

• using enemy buildings to billet military personnel and others supporting them, to house 

the wounded and sick, for observation and reconnaissance, for concealment and cover, 

and for defensive purposes;

519 

• demolishing, cutting down, or removing enemy walls, forests, and buildings to clear a 

field of fire or to provide construction material;

520 or 

• seizing means of transportation for use in military operations.

521

5.17.2.3 Destruction of Enemy Property to Diminish the Enemy’s Ability to 

Conduct or Sustain Operations. It may be imperatively demanded by the necessities of war to 

seize or destroy enemy property in order to diminish the enemy’s ability to conduct or sustain 

operations, such as railways, lines of communication, and other war fighting and war sustaining 

infrastructure.522 For instance, Union forces destroyed the Confederacy’s cotton during the Civil 

 518 1956 FM 27-10 (Change No. 1 1976) ¶56 (“[R]eal estate may be used for marches, camp sites, construction of 

field fortifications, etc.”).

519 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Buildings may be destroyed for sanitary purposes or used for shelter 

for troops, the wounded and sick and vehicles and for reconnaissance, cover, and defense.”); LAUTERPACHT, II

OPPENHEIM’S INTERNATIONAL LAW 398 (§136) (“So far as the necessities of war demand, a belligerent may make 

use of public enemy buildings for all kinds of purposes. Troops must be housed, horses stabled, the sick and 

wounded looked after. Public buildings may in the first instance, therefore, be made use of for such purposes, 

although they may thereby be considerably damaged.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 403 

(§140) (“What has been said above with regard to utilisation of public buildings applies equally to private 

buildings.”).

520 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Fences, woods, crops, buildings, etc., may be demolished, cut down, 

and removed to clear a field of fire, to clear the ground for landing fields, or to furnish building materials or fuel if 

imperatively needed for the army.”).

521 For example, Interview by Robert K. Wright, Jr., Department of the Army, with Col. Barry S. Baer, Commander, 

18th Finance Group, in Fort Bragg, N.C. (Mar. 15, 1990), available at

http://www.history.army.mil/documents/panama/JCIT/JCIT31.htm (recounting how U.S. forces commandeered 

rental cars in Panama to increase tactical mobility in Operation JUST CAUSE).

522 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1254 (“It is 

lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. 

Private homes and churches even may be destroyed if necessary for military operations.”); LIEBER CODE art. 15 

(“Military necessity ... allows of all destruction of property, and obstruction of the ways and channels of traffic, 

travel, or communication, and of all withholding of sustenance or means of life from the enemy.”). Compare 

§ 5.6.6.2 (Make an Effective Contribution to Military Action).
288

War in order to deprive the Confederacy of the ability to fund its military operations.523 

Similarly, coalition forces during Operation ENDURING FREEDOM destroyed narcotics in order to 

weaken the Taliban and al Qaeda’s ability to finance their operations.524

5.17.2.4 Incidental Damage to Enemy Property. Military necessity also justifies 

damage to property incidental to combat operations that is reasonably related to overcoming 

enemy forces.525 For example, the movement of armed forces and equipment may damage roads 

or fields.

526

5.17.3 Enemy Movable Property on the Battlefield (War Booty). Any enemy public

movable property on the battlefield may be seized.527 Property is public if it belongs to the 

enemy State or an agency of that State.528 

 523 In re Mrs. Alexander’s Cotton, 69 U.S. 404, 419-20, 421 (1864) (holding that 72 bales of cotton taken from a 

barn by Union naval forces could lawfully be captured as enemy property based on “the peculiar character of the 

property” as “one of [the rebels’] main sinews of war,” but that the cotton was not a maritime prize because it had 

been captured on land).

524 International Security Assistance Force (ISAF) Joint Command – Afghanistan, Press Release: Combined Force 

Finds, Destroys Drugs, Weapons Cache (Sept. 7, 2010) (describing a patrol’s destruction of a cache of opium and 

weapons in order to “significantly reduce[] the insurgent’s ability to ... procure financial resources”); April 

Campbell, Afghan Forces Becoming Increasingly Effective Against Drug Producers, AFGHANISTAN INTERNATIONAL 

SECURITY ASSISTANCE FORCE – NEWS (Sept. 29, 2011) (describing Afghan counter-narcotics forces’ seizure and 

destruction of narcotics laboratories and narcotics as “dealing a significant blow to the insurgency’s ability to fund 

operations”).

525 See also GREENSPAN, MODERN LAW OF LAND WARFARE 282-83 (“While the seizure or destruction of enemy 

personnel and war material are actual objectives of warfare, the operations of war must also result in the incidental 

destruction and seizure of much property, not as the prime object of attack, but which becomes involved in the 

struggle. ... Troops march, ride, and fight wherever the battle takes them, whether over fields of growing crops or 

in the streets of cities, towns, or villages. Land is used for camp sites, entrenchments, and other defenses 

constructed in or on it, streets may be torn up, bridges demolished, dwellings and factories converted into strong 

points, furniture and bedding may provide the cover for a sharpshooter hidden in some dwelling. Practically every 

shell or bomb that explodes damages property in one form or another, whether or not it attains its objective. Most 

bullets that are fired strike, not humans, but property. Each missile that is launched must finally come to earth 

somewhere.”).

526 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶56 (explaining that “the rule requiring respect for private 

property is not violated through damage resulting from operations, movements, or combat activity of the army”); 

1958 UK MANUAL ¶589 (“The rule that private property must be respected admits, however, of exceptions 

necessitated by the exigencies of war. In the first instance, practically every operation, movement or combat 

occasions damage to private property.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 414 (§151) 

(“Destruction of enemy property in marching troops, in conducting military transport, and in reconnoitring, is lawful 

if unavoidable. A reconnoitring party need not keep on the road if they can better serve their purpose by riding 

across tilled fields. Troops may be marched, and transport may be conducted, over crops when necessary. A 

humane commander will not unnecessarily allow his troops and transport to march and ride over tilled fields and 

crops. But if the purpose of war necessitates it, he is justified in so doing.”).

527 1956 FM 27-10 (Change No. 1 1976) ¶59a (“All enemy public movable property captured or found on a 

battlefield becomes the property of the capturing State.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 402 

(§139) (“[Movable] public enemy property on the battlefield may be appropriated by belligerents.”).

528 See, e.g., William Gerald Downey, Jr., Captured Enemy Property: Booty of War and Seized Enemy Property, 44 

AJIL 488, 489 (1950) (“Enemy public property is defined as chattels, the title to which is vested in a state or in any 

agency of such state.”).
289

In general, enemy private movable property on the battlefield may be seized if the 

property is susceptible to direct military use, i.e., it is necessary and indispensable for the 

conduct of war.529 This includes arms, ammunition, military papers, or property that can be used 

as military equipment (e.g., as a means of transportation or communication).530 However, 

certain types of military equipment used for clothing, feeding, or personal protection (e.g., 

helmets and gas masks) may not be seized from POWs, and should remain in their possession.531

5.17.3.1 Private Military Property Not Susceptible to Direct Military Use. 

Private enemy property that is not susceptible to direct military use (e.g., arms, ammunition, 

military papers, or military equipment) may be appropriated only to the extent such taking is 

permissible in occupied areas.532 In particular, receipts should be given and compensation paid, 

when feasible.533 

5.17.3.2 Ownership of Captured or Found Property on the Battlefield. All enemy 

property that is captured or found on the battlefield becomes the property of the capturing 

State.534 During international armed conflict, personal property recovered from enemy dead 

becomes the property of the capturing State for the purpose of returning it to the next-of-kin of 

the deceased.535 The individual military member or person accompanying the armed forces who 

captures or finds enemy property acquires no title or claim.536 

 529 See Menzel v. List, 267 N.Y.S.2d 804, 820 (N.Y. Sup. Ct. 1966) (“Booty is defined as property necessary and 

indispensable for the conduct of war, such as food, means of transportation, and means of communication; and is 

lawfully taken.”).

5301958 UK MANUAL ¶615 (“Private enemy property on the battlefield is not (as it was in former times) in every 

case booty. Arms and ammunition and military equipment and papers are booty, even if they are the property of 

individuals, but cash, jewellery, and other private articles of value are not.”); GREENSPAN, MODERN LAW OF LAND 

WARFARE 281 (“Private property in the following categories belonging to members of the enemy forces falls within 

the description of booty: arms, horses, military equipment, and military documents.”); LAUTERPACHT, II

OPPENHEIM’S INTERNATIONAL LAW 406 (§144) (“Private enemy property on the battlefield is no longer in every 

case an object of booty. Arms, horses, and military papers may indeed be appropriated, even if they are private 

property, as may also private means of transport, such as cars and other vehicles which an enemy may make use 

of.”).

531 Refer to § 9.7 (POW Effects and Articles of Personal Use).

532 See 1956 FM 27-10 (Change No. 1 1976) ¶59b (“Enemy private movable property, other than arms, military 

papers, horses, and the like captured or found on a battlefield, may be appropriated only to the extent that such 

taking is permissible in occupied areas.”). Refer to § 11.18.6 (Treatment of Enemy Private Property).

533 Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).

534 1956 FM 27-10 (Change No. 1 1976) ¶59a-b (providing that “[a]ll enemy public movable property captured or 

found on a battlefield becomes the property of the capturing State” and that “[e]nemy private movable property, 

other than arms, military papers, horses, and the like captured or found on a battlefield, may be appropriated only to 

the extent that such taking is permissible in occupied areas (see pars. 405-411).”); 1956 FM 27-10 (Change No. 1 

1976) ¶396 (“Public property captured or seized from the enemy, as well as private property validly captured on the 

battlefield and abandoned property, is property of the United States ... .”); 1958 UK MANUAL ¶615 (“Public enemy 

property found or captured on a battlefield becomes, as a general rule, the property of the opposing belligerent.”).

535 Refer to § 7.7.2.2 (Forwarding Valuable Articles Found on the Dead).

536 Foster v. United States, 98 F. Supp. 349, 352 (Ct. Cl. 1951) (“[A] soldier may not make a profit out of the 

disorder and flight which ensues from war. In the abandoned property which he comes upon, and which he must 
290

Failure to turn over such property to the proper authorities, or disposal of such property 

for personal profit, is punishable under Article 103 of the Uniform Code of Military Justice.537

Pillage Prohibited. Pillage is prohibited, both in general538 5.17.4 and specifically with 

respect to:

• the wounded, sick, shipwrecked, and dead;

539

• POWs;540

• protected persons under the GC;

541

• persons in occupied territory542 and in areas of non-international armed conflict;543 and 

• cultural property.544 

In certain cases, there is an affirmative obligation to prohibit and prevent pillage.545

5.17.4.1 Pillage – Definition and Notes on Terminology. Pillage is the taking of 

private or public movable property (including enemy military equipment) for private or personal 

 

turn over to the proper authority without delay, he does not acquire any proprietary interest. His taking possession 

of it is done as an agent of the Government, and if it is not reclaimed by the owner who abandoned it, it belongs to 

the Government.”).

537 See 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from the 

enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay 

all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter 

who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or 

disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to 

himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be 

punished as a court-martial may direct.”).

538 See, e.g., HAGUE IV REG. art. 28 (“The pillage of a town or place, even when taken by assault, is prohibited.”); 

1899 HAGUE II art. 28 (same); LIEBER CODE art. 44 (“[A]ll robbery, all pillage or sacking, even after taking a place 

by main force ... are prohibited under the penalty of death, or such other severe punishment as may seem adequate 

for the gravity of the offense.”).

539 Refer to § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 7.7.2.1 (Measures to 

Prevent the Dead From Being Despoiled); § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick, 

Shipwrecked, and Dead).

540 Refer to § 9.7 (POW Effects and Articles of Personal Use).

541 Refer to § 10.5.3.3 (Pillage Against Protected Persons).

542 Refer to § 11.18.1 (Prohibition Against Pillage in Occupied Territory).

543 Refer to § 17.6.4 (Prohibition on Pillage).

544 Refer to § 5.18.6 (Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of Vandalism, 

and Prohibition Against Requisition of Foreign Cultural Property).

545 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism 

Against, Cultural Property); § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 17.14.3

(Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).
291

use.

546 It does not include an appropriation of property justified by military necessity.547 For 

example, if ordinary requisitions are unavailable, the taking of food does not constitute 

pillage.548 Pillage also has been referred to as “looting”549 and “plunder.”550

5.17.4.2 History of Pillage. In the medieval era, pillage served as a form of 

compensation for private armies, but it ceased to be regarded as lawful with the widespread 

adoption of standing armies at the end of the Eighteenth Century. The prohibition on pillage has, 

in part, been intended to maintain discipline among the armed forces.551 For example, a member 

of the armed forces who before or in the presence of the enemy quits his or her place of duty to 

plunder or pillage is guilty of the offense of misbehavior before the enemy.552

5.17.5 Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians. In 

seizing or destroying enemy property, feasible precautions should be taken to mitigate the

burdens imposed on civilians.

For example, in the practice of the United States, religious buildings, shrines, and 

consecrated places employed for worship are used only for aid stations, medical installations, or 

 546 10 U.S.C. § 950t(5) (“(5) PILLAGING.--Any person subject to this chapter who intentionally and in the absence of 

military necessity appropriates or seizes property for private or personal use, without the consent of a person with 

authority to permit such appropriation or seizure, shall be punished....”). Consider ROME STATUTE, ELEMENTS OF 

CRIMES, art. 8(2)(b)(xvi), Official Records of the Assembly of States Parties to the Rome Statute of the International 

Criminal Court, First session, New York, ICC-ASP/1/3, 112, 145-6 (Sept. 3-10, 2002) (defining the elements of the 

war crime of pillaging as including (1) appropriation of property, (2) intent “to deprive the owner of the property 

and to appropriate it for private or personal use,” and (3) “appropriation ... without the consent of the owner”).

547 Consider ROME STATUTE, ELEMENTS OF CRIMES art. 8(2)(b)(xvi), Official Records of the Assembly of States 

Parties to the Rome Statute of the International Criminal Court, First session, New York, ICC-ASP/1/3, 112, 146 

footnote 47 (Sept. 3-10, 2002) (“As indicated by the use of the term ‘private or personal use’, appropriations 

justified by military necessity cannot constitute the crime of pillaging.”).

548 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 405 (§143) (“If there is no time for ordinary requisitions to 

provide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions 

cannot be made, a belligerent must take these articles wherever he can get them, and he is justified in so doing.”). 

Refer to § 11.18.7 (Requisitions of Private Enemy Property).

549 10 U.S.C. § 903 (“(b) Any person subject to this chapter who- ... (3) engages in looting or pillaging; shall be 

punished as a court-martial may direct.”); MANUAL FOR COURTS-MARTIAL IV-40 (¶27.c.(4)) (2012) (“‘Looting or 

pillaging’ means unlawfully seizing or appropriating property which is located in enemy or occupied territory.”).

550 See, e.g., MANUAL FOR COURTS-MARTIAL IV-35 (¶23.c.(6)(b)) (2012) (“‘Plunder or pillage’ means to seize or 

appropriate public or private property unlawfully.”); Prosecutor v. Jelisić, ICTY Trial Chamber, IT-95-10-T, 

Judgment, ¶¶48-49 (Dec. 14, 1999) (noting that “[p]lunder is defined as the fraudulent appropriation of public or 

private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto” 

and confirming the guilt of the accused on the charge of plunder because he “stole money, watches, jewellery and 

other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over their 

possessions with death”).

551 1958 UK MANUAL ¶589 (noting that the prohibitions contained in Hague IV Regulations “did not constitute new 

rules at the time they were promulgated” and that “it has for a long time past been embodied in the regulations of 

every civilized army, for nothing is more demoralizing to troops or more subversive of discipline than plundering.”).

552 10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— ... (6) quits his 

place of duty to plunder or pillage; ... shall be punished by death or such other punishment as a court-martial may 

direct.”).
292

the housing of wounded personnel awaiting evacuation, provided in each case that a situation of 

emergency requires such use.553

Similarly, if armed forces use a private residence, they must treat its inhabitants and 

owners humanely and with as much consideration as the circumstances permit.554 In particular, 

the armed forces should generally allow the inhabitants to continue to live in part of their own 

homes, and should not expel them in the absence of alternate shelter.555 But if imperative 

military necessity requires the removal of the inhabitants, then efforts should be made to give 

them notice and to aid them in taking their essential possessions.556 If the armed forces take 

anything, they should leave a note to this effect.557

However, there is no obligation to protect abandoned property in the area of active 

operations.558

5.17.5.1 Compensation for Property Seizure or Damage. Although reasonable 

efforts should be made to spare civilians from unnecessary harm when seizing or destroying 

enemy property, the law of war imposes no obligation to compensate for loss of, or damage to,

private property imperatively demanded by the necessities of war, including damage incidental 

to combat operations.559 However, if time allows, a record of the use or damage should be kept, 

or given to the owner, so that in the event of funds being provided by either belligerent at the 

 553 Refer to § 11.18.6.4 (Municipal, Religious, Charitable, and Cultural Property).

554 GREENSPAN, MODERN LAW OF LAND WARFARE 283 (“Where private dwellings are taken over by troops, the 

inhabitants must be treated humanely and afforded as much consideration as the circumstances permit.”). For 

example, DICK COUCH, THE SHERIFF OF RAMADI 69 (2008) (“‘On yet another SR [special reconnaissance] mission, 

we had intelligence that a restaurant was being used as a meeting place for insurgents, but there were a lot of other 

Iraqis coming and going there as well. We needed an OP [observation post] that was close to the restaurant but not 

too close -- a secure perch from which we could observe the target for several days and still be safe from informers. 

We found this three-story house that was several hundred yards from the restaurant entrance. It was perfect. We 

sent one of our interpreters to speak with the residents and to make arrangements to use one of their upper-floor 

rooms for a few days. We paid them well, but the key was that after being coached by the terp and our scouts, we 

were very polite and respectful of their customs.’”) (second alteration in original).

555 1958 UK MANUAL ¶615 (“When troops are quartered in private dwellings some rooms should be left to the 

inhabitants; the latter should not be driven into the streets and left without shelter.”).

556 1958 UK MANUAL ¶615 (“If for military reasons, whether for operational purposes or to protect men and animals 

from the weather, it is imperative to remove the inhabitants, efforts should be made to give them notice and provide 

them with facilities for taking essential baggage with them.”).

557 1958 UK MANUAL ¶615 (“A note should be left if anything is taken.”); GREENSPAN, MODERN LAW OF LAND 

WARFARE 284 (“For anything validly taken, a note to this effect should be left.”).

558 1958 UK MANUAL ¶615 (“There is ... no obligation to protect abandoned property.”); GREENSPAN, MODERN 

LAW OF LAND Warfare 284 (“[T]here is no obligation on the part of the invader to protect abandoned property in the 

area of active operations ... .”).

559 See, e.g., 1958 UK MANUAL ¶593 (“The owner of property may claim neither rent for its use nor compensation 

for damage caused by the necessities of war.”).
293

close of hostilities to compensate the owners, there may be evidence to assist the assessors.560

As a matter of practice, during counter-insurgency operations, U.S. forces have often 

made payments to, or taken other actions on behalf of, civilians suffering loss.561

5.18 PROTECTION OF CULTURAL PROPERTY DURING HOSTILITIES

Certain types of property receive additional protection as cultural property. Cultural 

property, the areas immediately surrounding it, and appliances in use for its protection should be 

safeguarded and respected.

Some obligations with respect to cultural property apply during non-international armed 

conflict.562 There are also obligations with respect to cultural property during occupation563 and 

peacetime.564 Certain treaty obligations with respect to cultural property may only apply on the 

territory of Parties to the 1954 Hague Cultural Property Convention,

565 but the United States has 

previously identified some of these obligations as customary international law.566 DoD

personnel, therefore, in the absence of contrary guidance by competent authority, should act as if 

they were legally bound by the rules for the protection of cultural property in the 1954 Hague 

Cultural Property Convention during hostilities even when conducting operations in the territory 

of a State that is not a Party to the 1954 Hague Cultural Property Convention.567

5.18.1 Definition of Cultural Property. For the purpose of the 1954 Hague Cultural 

Property Convention and this manual, cultural property includes, irrespective of origin or 

ownership:568 

 560 1958 UK MANUAL ¶593 (“If time allows, however, a note of the use or damage should be kept, or given to the 

owner, so that in the event of funds being provided by either belligerent at the close of hostilities to compensate the 

inhabitants, there may be evidence to assist the assessors.”).

561 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶7-89 (Apr. 

2009) (“Recent experiences have shown the effectiveness of using money to win popular support and further the 

interests and goals of units conducting counterinsurgency operations. ... A counterinsurgency force can use money 

to ... • Repair damage resulting from combined and coalition operations. • Provide condolence payments to civilians 

for casualties from combined and coalition operations.”).

562 Refer to § 17.11 (Protection of Cultural Property in NIAC).

563 Refer to § 11.19 (Protection of Cultural Property During Occupation).

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

565 See, e.g., 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to 

respect cultural property situated within their own territory as well as within the territory of other High Contracting 

Parties.”).

566 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

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

568 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (“For the purposes of the present Convention, the term 

‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great 

importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether 

religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; 

works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as 
294

• movable or immovable property of great importance to the cultural heritage of every 

people;569

• buildings intended to shelter cultural property;570 and

• centers containing monuments.571

5.18.1.1 Definition of Cultural Property – Notes on Terminology. “Cultural 

property” is a term of art that is defined in the 1954 Hague Cultural Property Convention. The 

definition in the 1954 Hague Cultural Property Convention may be more limited than cultural 

property described and protected by other instruments.

For example, the Lieber Code contemplates protection for property belonging to 

“establishments of an exclusively charitable character, to establishments of education, or 

foundations for the promotion of knowledge, whether public schools, universities, academies of 

learning or observatories, museums of the fine arts, or of a scientific character,” as well as 

“[c]lassical works of art, libraries, scientific collections, or precious instruments, such as 

astronomical telescopes.”572 The Hague IV Regulations seek to protect “buildings dedicated to 

religion, art, science, or charitable purposes, historic monuments.”573 Hague IX seeks to protect 

“sacred edifices, buildings used for artistic, scientific, or charitable purposes, [and] historic 

monuments.”574 The Roerich Pact seeks to protect “historic monuments, museums, scientific, 

artistic, educational and cultural institutions.”575 AP I seeks to protect “historic monuments, 

works of art or places of worship which constitute the cultural or spiritual heritage of 

peoples.”576

Because the definition of cultural property in the 1954 Hague Cultural Property 

Convention is different from the categories of property protected by other instruments, the scope 

of objects being protected by each instrument is not the same (although there may be overlap). 

Nevertheless, the protections afforded cultural property by the 1954 Hague Cultural Property 

Convention are supplementary to those afforded by earlier treaties, although the distinctive 

 

scientific collections and important collections of books or archives or of reproductions of the property defined 

above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property 

defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to 

shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres 

containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres 

containing monuments’.”).

569 Refer to § 5.18.1.2 (Movable or Immovable Property of Great Importance to the Cultural Heritage of Every 

People).

570 Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).

571 Refer to § 5.18.1.4 (Centers Containing Monuments).

572 LIEBER CODE arts. 34-36.

573 HAGUE IV REG. art. 27.

574 HAGUE IX art. 5.

575 ROERICH PACT art. 1.

576 AP I art. 53.
295

emblem for cultural property established in the 1954 Hague Cultural Property Convention is to 

be used where appropriate instead of emblems established in earlier treaties.577

5.18.1.2 Movable or Immovable Property of Great Importance to the Cultural 

Heritage of Every People. Property must be “of great importance to the cultural heritage of 

every people” to qualify as cultural property. Ordinary property (such as churches or works of 

art) that are not of great importance to the cultural heritage of every people would not qualify as

cultural property, although such property may benefit from other protections, such as those 

afforded civilian objects or enemy property.578

The question of whether cultural property is “of great importance to the cultural heritage 

of every people” may involve delicate and somewhat subjective judgments.

579 Items that can 

easily be replaced would not qualify as being of great importance.580 On the other hand, 

irreplaceable items may be of great cultural importance, even if they have little monetary 

value.581

Cultural property may include, but is not limited to, the following types of property 

(provided the property is of great importance to the cultural heritage of every people):

• monuments of architecture, art, or history, whether religious or secular;582

• archaeological sites;

• groups of buildings that, as a whole, are of historical or artistic interest;583

 577 Refer to § 19.17.1 (Relationship Between the 1954 Hague Cultural Property Convention and Earlier Treaties).

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

§ 5.17 (Seizure and Destruction of Enemy Property).

579 See ROGERS, LAW ON THE BATTLEFIELD 90 (“It must be property of great importance to the cultural heritage of 

every people. This may involve delicate decisions about whether, for example, an original manuscript by a minor 

composer, say Spohr, was of great importance to the cultural heritage of every people, perhaps not. The situation 

would be different if it were an original manuscript by one of the great composers, say Schubert.”).

580 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50 (1996) (“Certain objects, although of limited value, may 

be important for the national culture while others, even though of great value, can be replaced and are therefore less 

important.”).

581 For example, JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 49-50 (1996) (“[A] papyrus reporting a marriage 

that took place three thousand years ago, although it was of no intrinsic cultural value, was of very great cultural 

importance because of the fact that it enabled an institution, on which no such ancient information existed, to be 

studied.”) (internal quotation marks omitted).

582 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50-51 (1996) (“[W]orks of architecture, sculpture, 

specially designed to perpetuate the memory of a person, action, period, event or thing, or as buildings, structures, 

edifices remarkable for their archaeological, historical or aesthetic interest or intended to commemorate a notable 

person, action or event.”).

583 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 51 (1996) (During the drafting of the 1954 Hague 

Cultural Property Convention “the Scandinavian countries proposed the protection of certain sites which, although 

not containing particularly remarkable monuments, were of undoubted value from a cultural point of view and for 

that reason had a right to be protected. It was explained that the Scandinavian countries had very little cultural 
296

• works of art;

• manuscripts, books, and other objects of artistic, historical, or archaeological interest;

• scientific collections;584 and

• important collections of books or archives or of reproductions of the property defined 

above.585

Natural sites of great beauty are not included within the definition of cultural property.586

5.18.1.3 Buildings Intended to Preserve Cultural Property. Cultural property is 

also understood to include buildings whose main and effective purpose is to preserve or exhibit 

movable cultural property, such as museums, large libraries, and depositories of archives, and 

refuges intended to shelter cultural property in the event of armed conflict.587

For these types of buildings, protection is gained from the structure’s purpose and 

contents as opposed to the physical structure itself constituting immovable property of great 

importance to the cultural heritage of every people. The building must be intended to contain 

and, in fact, contain, conserve, or exhibit movable cultural property as its primary purpose.588 

Alternatively, the structure may be intended to store movable cultural property for protection in 

the event of armed conflict. Some of these refuges may be subject to special protection.589

 

property and that their gift to culture consisted mainly in distant mediaeval villages or lonely farms.”) (internal 

quotation marks omitted).

584 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (Scientific “collections are made up of 

scientific books but also cover other objects such as Boissier’s herbarium in Geneva or the collections of important 

laboratories ... [and] national monuments that were objects of valuable scientific research, such as rare animals or 

plants that were becoming extinct.”).

585 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (“[P]rotection is accorded to important 

collections of books without their necessarily having to be of artistic, historical or archaeological interest. Any 

important library is thus protected, probably in the spirit of protecting human knowledge.”).

586 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53 (1996) (“The [1954 Hague Cultural Property] Conference 

also discussed the protection of ‘natural sites of great beauty’ (United States of America and Japan), but appears to 

have given up the idea for reasons mentioned by the delegation of France, who considered that ‘it was probably 

difficult to define the protection of natural sites as their value was of a subjective nature. At best, only a diluted 

form of protection could result. Finally, it had been observed that natural sites could often be restored very 

quickly.”).

587 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(b) (defining the term cultural property to include, inter 

alia, “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in 

sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in 

the event of armed conflict, the movable cultural property defined in subparagraph (a)”).

588 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53-54 (1996) (“According to subparagraph (b), such 

buildings are protected not because of their own historical value but because of their purpose and their content. The 

purpose must be the primary one, the very aim and raison d'etre of such a building; it must also be effectively true --

the building must in fact contain, conserve or exhibit movable cultural property.”).

589 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
297

5.18.1.4 Centers Containing Monuments. Cultural property also includes centers 

containing monuments, i.e., centers containing a large amount of cultural property or buildings 

intended to preserve cultural property.590 This includes monument complexes or major groups of 

buildings containing movable and immovable cultural property.

5.18.2 Respect and Safeguarding of Cultural Property. The protection of cultural 

property comprises the safeguarding of and respect for such property.591 Safeguarding consists 

of the affirmative acts that are to be taken to ensure the protection of cultural property.592 On the 

other hand, respect essentially requires parties to refrain from certain acts, such as placing 

cultural property in peril or causing damage to it.593 

Safeguarding and respect are mutually reinforcing obligations that help ensure the 

protection of cultural property. 

5.18.2.1 Peacetime Obligations to Prepare for the Safeguarding of Cultural 

Property. Parties to 1954 Hague Cultural Property Convention are obliged to undertake to 

prepare in time of peace for the safeguarding of cultural property situated within their own 

territory against the foreseeable effects of an armed conflict, by taking such measures as they 

consider appropriate.594 This obligation reflects the opinion that measures for the protection of 

cultural property during armed conflict, in order to be effective, must begin in peacetime.595

The failure of a State to fulfill its obligations in peacetime to safeguard cultural property 

during armed conflict does not relieve other States of their obligation to respect cultural 

 590 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(c) (defining the term cultural property to include, inter 

alia, “centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b) to be known as 

‘centres containing monuments’”). See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 54 (1996) (“The term 

‘centres containing monuments’ was preferred to the terms ‘groups’ or ‘groups of buildings’ when the reference was 

to larger areas containing a considerable amount of cultural property coming under subparagraphs (a) and (b). The 

term comprises a group of historical or artistic monuments situated in the same vicinity, such as the districts of 

certain cities or even entire cities.”).

591 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“For the purposes of the present Convention, the 

protection of cultural property shall comprise the safeguarding of and respect for such property.”).

592 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“‘Safeguarding’ consists of all the positive measures 

(defining the action to be taken) which are designed to ensure the best possible material conditions for the protection 

of cultural property.”).

593 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“Respect ... has an essentially negative character: it 

represents an obligation not to commit a number of prohibited acts. Respect therefore implies a requirement to 

refrain from certain acts, such as placing cultural property in peril or causing damage to it.”).

594 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 3 (“The High Contracting Parties undertake to prepare in 

time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable 

effects of an armed conflict, by taking such measures as they consider appropriate.”).

595 1954 HAGUE CULTURAL PROPERTY CONVENTION preamble (“Guided by the principles concerning the protection 

of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and 

in the Washington Pact of 15 April, 1935; Being of the opinion that such protection cannot be effective unless both 

national and international measures have been taken to organize it in time of peace;”).
298

property.596

5.18.3 Refraining From Any Use for Purposes That Are Likely to Expose It to 

Destruction or Damage. In general, no use should be made of cultural property, its immediate 

surroundings, or appliances in use for its protection, for purposes that are likely to expose it to 

destruction or damage in the event of armed conflict.597 However, such use is permissible when 

military necessity imperatively requires such use.598

Uses that would be likely to expose cultural property to destruction or damage in the 

event of armed conflict would include: (1) using the cultural property for military purposes;

599

(2) placing military objectives near cultural property; or (3) using the cultural property in such a 

way that an adversary would likely regard it as a military objective.

600 For example, such uses

would include billeting military personnel in buildings that constitute cultural property, or 

emplacing artillery, mortars, or anti-air systems on the grounds of cultural property.

In addition, it is prohibited to use deliberately the threat of potential harm to cultural 

property to shield military objectives from attack, or otherwise to shield, favor, or impede 

military operations.

601 There is no waiver of this obligation in cases of imperative military 

necessity.

5.18.3.1 Imperative Military Necessity Waiver. Cultural property, its immediate 

surroundings, and appliances in use for its protection may be used for purposes that are likely to 

expose it to destruction or damage if military necessity imperatively requires such use. The 

requirement that military necessity imperatively require such acts should not be confused with 

convenience or be used to cloak slackness or indifference to the preservation of cultural 

property.602 This waiver of obligations with respect to cultural property is analogous to the 

 596 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(5) (“No High Contracting Party may evade the 

obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of 

the fact that the latter as not applied the measures of safeguard referred to in Article 3.”).

597 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect 

cultural property situated within their own territory as well as within the territory of other High Contracting Parties 

by refraining from any use of the property and its immediate surroundings or of the appliances in use for its 

protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict ... .”).

598 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of the 

present Article may be waived only in cases where military necessity imperatively requires such a waiver.”).

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

600 Refer to § 5.6 (Military Objectives).

601 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

602 See General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the Protection 

of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“If we have to choose between 

destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the 

building must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared 

without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is 

an accepted principle. But the phrase ‘military necessity’ is sometimes used where it would be more truthful to 

speak of military convenience or even personal convenience. I do not want it to cloak slackness or indifference.”).
299

requirement that enemy property may only be seized or destroyed if imperatively required by the 

necessities of war.

603

5.18.4 Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property. 

Other feasible precautions should be taken to reduce the risk of harm to cultural property.604 

Such precautions may include:

• determining the location of cultural property and disseminating that information among 

the armed forces;605

• compiling and promulgating lists of cultural property and areas that are not to be 

attacked;

606

• establishing civil authorities to assume responsibility for planning and acting to ensure 

respect for cultural property under its control;

607 

• physically shielding cultural property from harm; and

• establishing refuges and evacuating movable cultural property to them.

608

5.18.5 Refraining From Any Act of Hostility. In general, acts of hostility may not be 

directed against cultural property, its immediate surroundings, or appliances in use for its 

 603 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard). For general discussion of military necessity 

refer to § 2.2 (Military Necessity).

604 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

605 For example, General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the 

Protection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“It is a 

responsibility of higher commanders to determine through A.M.G. Officers the locations of historical monuments 

whether they be immediately ahead of our front lines or in areas occupied by us. This information passed to lower 

echelons through normal channels places the responsibility on all Commanders of complying with the spirit of this 

letter.”).

606 For example, Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING 

THE 1954 HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (“During Operation Desert Storm, for example, 

intelligence resources were utilized to look for cultural property in order to properly identify it. Target intelligence 

officers identified cultural property or cultural property sites in Iraq; a ‘no-strike’ target list was prepared, placing 

known cultural property off limits from attack, as well as some otherwise legitimate targets if their attack might 

place nearby cultural property at risk of damage.”); 7th Air Force Operations Order 71-17 (Rules of Engagement), 

reprinted in 121 CONGRESSIONAL RECORD 17555 (Jun. 6, 1975) (specifying during the Vietnam War “Angkor Wat 

Park: This area will not be attacked for any reason. Under no circumstances will [forward air controllers] control or 

assist air strikes of any nation within the Angkor Wat area. Should a [forward air controller] observe such a strike 

being made, he will advise the [Forces Armée Nationale Khmer] ground commander and depart the area 

immediately. Other Areas of Cultural Value: Except during [combat search and rescue] operations, no U.S. air 

strikes will be made within 1,000 meters of any of the areas of cultural value [nearly 100 other sites specifically 

listed in the directive]. U.S. [forward air controllers] will not control or assist air strikes of any nation within 1,000 

meters of these areas regardless of [Forces Armée Nationale Khmer] request of validation.”).

607 These include museum curators and staff, local fire and law enforcement authorities, and civil defense personnel.

608 Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).
300

protection.609 Acts of hostility may, however, be directed against cultural property, its 

immediate surroundings, or appliances in use for its protection, when military necessity 

imperatively requires such acts.610

5.18.5.1 Imperative Military Necessity Waiver. Acts of hostility may be directed 

against cultural property, its immediate surroundings, or appliances in use for its protection when 

military necessity imperatively requires such acts. The requirement that military necessity 

imperatively require such acts should not be confused with convenience or be used to cloak 

slackness or indifference to the preservation of cultural property.611 This waiver of obligations 

with respect to cultural property is analogous to the requirement that enemy property may only 

be seized if imperatively required by the necessities of war.612 

For example, if cultural property is being used by an opposing force for military 

purposes, then military necessity generally would imperatively require its seizure or 

destruction.613 

Similarly, if an opposing force uses cultural property and its immediate surroundings to 

protect military objectives, then the attack of those military objectives may be imperatively 

required by military necessity.

614 Or, if a military objective was located near cultural property, 

the protection afforded the area surrounding the cultural property could be subject to waiver for 

reasons of imperative military necessity such that the attack of the military objective would be 

permissible, despite its proximity to cultural property.

615

 609 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect 

cultural property situated within their own territory as well as within the territory of other High Contracting Parties 

... by refraining from any act of hostility directed against such property.”).

610 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of the 

present Article may be waived only in cases where military necessity imperatively requires such a waiver.”).

611 Refer to footnote 602 in § 5.18.3.1 (Imperative Military Necessity Waiver).

612 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard). For general discussion of military necessity, 

refer to § 2.2 (Military Necessity).

613 Cf. ROERICH PACT art. 5 (“The monuments and institutions mentioned in article I shall cease to enjoy the 

privileges recognized in the present treaty in case they are made use of for military purposes.”); HAGUE IV REG. art. 

27 (“In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated 

to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and 

wounded are collected, provided they are not being used at the time for military purposes.”) (emphasis added); 

HAGUE IX art. 5 (“In bombardments by naval forces all the necessary measures must be taken by the commander to 

spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic 

monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not 

used at the same time for military purposes.”) (emphasis added). Compare § 5.18.8.2 (Conditions for the Granting 

of Special Protection – No Use for Military Purposes).

614 FINAL REPORT ON THE PERSIAN GULF WAR 610 (“While Article 4(1) of the 1954 Hague Convention provides 

specific protection for cultural property, Article 4(2) permits waiver of that protection where military necessity 

makes such a waiver imperative; such ‘imperative military necessity’ can occur when an enemy uses cultural 

property and its immediate surroundings to protect legitimate military targets, in violation of Article 4(1).”).

615 Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954

HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (During Operation DESERT STORM, when “attacking 

legitimate targets in the vicinity of cultural objects, to the extent possible, weapons were selected that would 
301

Even where the waiver of the protection afforded cultural property, its immediate 

surroundings, or appliances in use for its protection may be warranted for reasons of imperative

military necessity, the risk of harm to the cultural property must be considered in a 

proportionality analysis616 and feasible precautions should be taken to reduce the risk of harm to 

the cultural property.617 And, even where waiver of the protection of cultural property may be 

warranted as a matter of law, as a matter of policy, decision-makers may still seek to refrain from 

harming cultural property.618

5.18.6 Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of 

Vandalism, and Prohibition Against Requisition of Foreign Cultural Property. Any form of theft, 

pillage, or misappropriation of, and any acts of vandalism directed against, cultural property are 

prohibited.

619 In addition, Parties to the 1954 Hague Cultural Property Convention shall refrain 

from requisitioning movable cultural property situated in the territory of another Party to the 

1954 Hague Cultural Property Convention.

There are no “imperative military necessity” waivers from these obligations.

Pillage is prohibited, even if the property does not constitute cultural property.

620 

5.18.6.1 Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and 

Acts of Vandalism Against, Cultural Property. Military commanders have an obligation to take 

reasonable measures to prevent or stop any form of theft, pillage, or misappropriation of, and any 

acts of vandalism directed against, cultural property. This obligation may also be viewed as part 

of the obligation to take feasible precautions to reduce the risk of harm to cultural property.621

What efforts would be reasonable would depend on a variety of factors, such as 

availability of forces, the commander’s mission, and enemy threats. What efforts would be 

 

accomplish destruction of the target while minimizing the risk of collateral damage to nearby cultural or civilian 

property. However, the proximity of military objectives to cultural property did not render those military objectives 

immune from attack, nor would it under the [1954 Hague Cultural Property] Convention.”).

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

617 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

618 For example, H. STIMSON, ON SERVICE IN PEACE AND WAR 625 (1948) (“With President Truman’s warm support 

I struck off the list of suggest targets the city of Kyoto. Although it was a target of considerable military 

importance, it had been the ancient capital of Japan and was a shrine of Japanese art and culture. We determined 

that it should be spared. I approved four other targets including the cities of Hiroshima and Nagasaki.”).

619 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“The High Contracting Parties further undertake to 

prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of 

vandalism directed against, cultural property.”). See also LIEBER CODE art. 36 (“In no case shall [classical works of 

art, libraries, scientific collections, or precious instruments] be sold or given away, if captured by the armies of the 

United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.”).

620 Refer to § 5.17.4 (Pillage Prohibited).

621 Refer to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).
302

reasonable would also depend on the information available to the commander at the time.622 

Some measures to ensure adherence to this obligation may include training members of 

the armed forces and persons authorized to accompany the armed forces on the protection of 

cultural property in general (and the prohibition of theft, pillage, or vandalism in particular) as 

part of general procedures for the dissemination and implementation of the law of war.

623 Other 

measures may include: (1) issuing and enforcing orders to the same effect;

624 (2) investigating 

alleged or suspected offenses and taking disciplinary or punitive action, as appropriate under 

U.S. law;625 and (3) taking measures to facilitate the recovery and return of stolen or 

misappropriated cultural property.

Although it may not always be feasible to prevent or stop theft, pillage, or 

misappropriation of, or acts of vandalism against, cultural property, efforts to identify cultural 

property within an area of operations and to secure it from theft or pillage are a prudent part of 

the planning process of military operations. For example, such efforts may deny opposing forces 

the opportunity to exploit harm to cultural property for propaganda purposes.

5.18.6.2 Prohibition Against Requisition of Movable Cultural Property Situated 

in the Territory of Another Party to the 1954 Hague Cultural Property Convention. Parties to 

the 1954 Hague Cultural Property Convention shall refrain from requisitioning movable cultural 

property situated in the territory of another Party to the 1954 Hague Cultural Property 

Convention.626

This rule makes no distinction between movable property of nationals of the country in 

which it is located and property of nationals of another High Contracting Party. As such, it 

would also protect from requisition any movable property from a third State temporarily on loan 

for an exhibition within the territory of a State participating in an armed conflict.627 

5.18.7 Marking of Cultural Property With the Distinctive Emblem. Cultural property 

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

623 Refer to § 18.6 (Dissemination, Study, and Other Measures to Facilitate Understanding of Duties Under the Law 

of War).

624 For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities 

for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM) 

Area of Responsibility (AOR), ¶2h (Mar. 13, 2006) (prohibiting “[r]emoving, possessing, selling, defacing or 

destroying archaeological artifacts or national treasures.”).

625 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

626 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“They [the High Contracting Parties] shall, refrain 

from requisitioning movable cultural property situated in the territory of another High Contracting Party.”).

627 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 71 (1996) (“[T]he prohibition of requisitioning should also apply 

to property existing on the territory of a High Contracting Party but belonging to the nationals of another High 

Contracting Party, as in the case of the collections of the historical or scientific institutes in Athens, Cairo, Paris, and 

Rome. The same guarantee would also apply in respect of movable cultural property made available on loan for an 

exhibition ... .”).
303

may bear a distinctive emblem so as to facilitate its recognition.

628 This distinctive emblem is 

described in Article 16 of the 1954 Hague Cultural Property Convention.

629 There is a degree of 

discretion as to the placing of the distinctive emblem and its degree of visibility.630 The emblem 

may be displayed on flags or armlets, and it may be painted on an object or represented in any 

other appropriate form.631 

5.18.7.1 Distinctive Emblem Facilitates Identification Rather Than Confers Status 

as Such. As is the case with distinctive emblems for medical personnel, units, transport, and 

facilities, the distinctive emblem for cultural property facilitates identification, rather than 

confers cultural property status as such.632 For example, cultural property may be protected, 

even though it is not marked with the distinctive emblem. On the other hand, a distinctive 

emblem placed on property does not make that property cultural property (and grant 

corresponding protections) if that property does not meet the criteria for cultural property (or the 

corresponding criteria for protection).

633

5.18.7.2 Display of the Distinctive Emblem for Cultural Property – Once Versus 

Three Times. In some cases, the distinctive emblem for cultural property is to be used once, 

while in other cases, the distinctive emblem for cultural property is to be displayed three times in 

a triangular formation (one shield below the other two shields).

634

The distinctive emblem for cultural property used once may only be used as a means of 

identification of:

• cultural property not under special protection;

• the persons responsible for the duties of control in accordance with the Regulations for 

the Execution of the 1954 Hague Cultural Property Convention;635

 628 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (“In accordance with the provisions of Article 16, cultural 

property may bear a distinctive emblem so as to facilitate its recognition.”).

629 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(1) (“The distinctive emblem of the Convention shall 

take the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of 

the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either 

side being taken up by a white triangle).”).

630 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“The 

placing of the distinctive emblem and its degree of visibility shall be left to the discretion of the competent 

authorities of each High Contracting Party.”).

631 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“It may 

be displayed on flags or armlets; it may be painted on an object or represented in any other appropriate form.”).

632 Compare § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).

633 Refer to § 5.18.1 (Definition of Cultural Property).

634 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(2) (“The emblem shall be used alone, or repeated three 

times in a triangular formation (one shield below), under the conditions provided for in Article 17.”).

635 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).
304

• the personnel engaged in the protection of cultural property;636 and

• the identity cards mentioned in the Regulations for the Execution of the 1954 Hague 

Cultural Property Convention.637

The distinctive emblem, repeated three times, may be used only as a means of 

identification of:

638

• immovable cultural property under special protection;639 

• the transport of cultural property under the special protection or in urgent cases;

640 and

• improvised refuges, under the conditions provided for in the Regulations for the 

Execution of the 1954 Hague Cultural Property Convention.

641

5.18.7.3 Display of the Distinctive Emblem on Immovable Cultural Property. The

distinctive emblem for cultural property may not be placed on any immovable cultural property 

unless at the same time there is displayed an authorization duly dated and signed by the 

competent authority of the relevant State.

642

5.18.7.4 Other Uses of the Distinctive Emblem for Cultural Property Prohibited 

During Armed Conflict. During armed conflict, the use of the distinctive emblem for cultural 

property in any other cases than those mentioned in the 1954 Hague Cultural Property 

Convention, and the use for any purpose whatsoever of a sign resembling the distinctive emblem, 

is forbidden.

643

 636 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).

637 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“The distinctive emblem may be used alone only as 

a means of identification of: (a) cultural property not under special protection; (b) the persons responsible for the 

duties of control in accordance with the Regulations for the execution of the Convention; (c) the personnel engaged 

in the protection of cultural property; (d) the identity cards mentioned in the Regulations for the execution of the 

Convention.”).

638 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“The distinctive emblem repeated three times may 

be used only as a means of identification of: (a) immovable cultural property under special protection; (b) the 

transport of cultural property under the conditions provided for in Articles 12 and 13; (c) improvised refuges, under 

the conditions provided for in the Regulations for the execution of the Convention.”).

639 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

640 Refer to § 5.18.9 (Transport of Cultural Property).

641 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

642 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(4) (“The distinctive emblem may not be placed on any 

immovable cultural property unless at the same time there is displayed an authorization duly dated and signed by the 

competent authority of the High Contracting Party.”).

643 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(3) (“During an armed conflict, the use of the distinctive 

emblem in any other cases than those mentioned in the Cultural Property Convention, and the use for any purpose 

whatever of a sign resembling the distinctive emblem, shall be forbidden.”). Consider AP I art. 38(1)(a) (“It is also 

prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or 

signals, including the flag of truce, and the protective emblem of cultural property.”).
305

5.18.8 Special Protection for Certain Cultural Property. A highly limited category of 

cultural property receives special protection by its entry in an International Register.

644

The standards governing the protection of such cultural property are essentially the same 

as the standards governing the protection of cultural property under customary law645 and the 

protection afforded all cultural property under the 1954 Hague Cultural Property Convention.646 

However, the special procedures applicable to cultural property under special protection facilitate 

its protection beyond that afforded cultural property that is not under special protection.

Special protection can apply to:647

• a limited number of refuges intended to shelter movable cultural property in the event of 

armed conflict; 

• a limited number of centers containing monuments and other immovable property of very

great importance; and

• improvised refuges under the procedures specified in the Regulations for the Execution of 

the 1954 Hague Cultural Property Convention.648

 644 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(6) (“Special protection is granted to cultural property by 

its entry in the ‘International Register of Cultural Property under Special Protection’. This entry shall only be made, 

in accordance with the provisions of the present Convention and under the conditions provided for in the 

Regulations for the execution of the Convention.”).

645 See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009, 

2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in 

Chapter II of the Convention, codifies customary international law in that it, first, prohibits the use of any cultural 

property to shield any legitimate military targets from attack and, second, allows all property to be attacked using 

any lawful and proportionate means, if required by military necessity and notwithstanding possible collateral 

damage to such property.”).

646 Compare 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (“The High Contracting Parties undertake to 

ensure the immunity of cultural property under special protection by refraining, from the time of entry in the 

International Register, from any act of hostility directed against such property and, except for the cases provided for 

in paragraph 5 of Article 8, from any use of such property or its surroundings for military purposes.”) with 1954

HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect cultural 

property situated within their own territory as well as within the territory of other High Contracting Parties by 

refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection 

for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining 

from any act of hostility directed against such property.”).

647 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (“There may be placed under special protection a 

limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres 

containing monuments and other immovable cultural property of very great importance, provided that they: (a) are 

situated at an adequate distance from any large industrial centre or from any important military objective 

constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged 

upon work of national defence, a port or railway station of relative importance or a main line of communication; (b) 

are not used for military purposes.”).

648 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11 (“1. If, 

during an armed conflict, any High Contracting Party is induced by unforeseen circumstances to set up an 

improvised refuge and desires that it should be placed under special protection, it shall communicate this fact 
306

Property granted special protection must be marked with the distinctive emblem for 

special protection, and opened to international control as provided for in the Regulations for the 

Execution of the 1954 Hague Cultural Property Convention.649

5.18.8.1 Conditions for the Granting of Special Protection – Adequate Distance 

From Military Objectives. In order to qualify for special protection, these categories of property 

must: (1) be situated an adequate distance from any large industrial center, or from any 

important military objective constituting a vulnerable point; and (2) not be used for military 

purposes.

The property must be situated at an adequate distance from any large industrial center or 

from any important military objective, such as an airport, railway station, or marshalling yards, 

port facilities, key lines of communication, command and control activity, or other defense 

facility.650 The term “adequate distance” is not defined within the 1954 Hague Cultural Property 

Convention, but relies upon determinations and actions by the State Party requesting “special 

protection” status, and by States Parties in determining whether the distance set forth by the 

requesting nation is sufficient to support approval of the request.

Immovable cultural property of very great importance adjacent to a military objective 

may retain its special protection status provided, in the event of armed conflict, all use of the 

military objective ceases.651 For example, if the military objective in question is an airport, port 

facility, or railway station or marshaling yards, all activity must cease, and military traffic must 

be diverted, in order for the site to maintain its protected status.

A refuge for storing and protecting movable cultural property may also be placed under 

 

forthwith to the Commissioner-General accredited to that Party. 2. If the Commissioner-General considers that such 

a measure is justified by the circumstances and by the importance of the cultural property sheltered in this 

improvised refuge, he may authorize the High Contracting Party to display on such refuge the distinctive emblem 

defined in Article 16 of the Convention. He shall communicate his decision without delay to the delegates of the 

Protecting Powers who are concerned, each of whom may, within a time-limit of 30 days, order the immediate 

withdrawal of the emblem. 3. As soon as such delegates have signified their agreement or if the time-limit of 30 

days has passed without any of the delegates concerned having made an objection, and if, in the view of the 

Commissioner-General, the refuge fulfils the conditions laid down in Article 8 of the Convention, the 

Commissioner-General shall request the Director-General of the United Nations Educational, Scientific and Cultural 

Organization to enter the refuge in the Register of Cultural Property under Special Protection.”).

649 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 10 (“During an armed conflict, cultural property under 

special protection shall be marked with the distinctive emblem described in Article 16, and shall be open to 

international control as provided for in the Regulations for the execution of the Convention.”).

650 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (Refuges and centers may only be placed under special 

protection if “they: (a) are situated at an adequate distance from any large industrial centre or from any important 

military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, 

establishment engaged upon work of national defence, a port or railway station of relative importance or a main line 

of communication.”). Refer to § 5.6 (Military Objectives).

651 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(5) (“If any cultural property mentioned in paragraph 1 of 

the present Article is situated near an important military objective as defined in the said paragraph, it may 

nevertheless be placed under special protection if the High Contracting Party asking for that protection undertakes, 

in the event of armed conflict, to make no use of the objective and particularly, in the case of a port, railway station 

or aerodrome, to divert all traffic therefrom. In that event, such diversion shall be prepared in time of peace.”).
307

special protection, whatever its location, if it is so constructed that, in all probability, it will not 

be damaged by bombs.652

5.18.8.2 Conditions for the Granting of Special Protection – No Use for Military 

Purposes. A “center containing monuments”653 shall be deemed to be used for military purposes 

whenever it is used for the movement of military personnel or material, even in transit. The 

same shall apply whenever activities directly connected with military operations, the stationing 

of military personnel, or the production of war material are carried on within the center.

654 

The guarding of cultural property under special protection by armed custodians specially 

empowered to do so, or the presence, in the vicinity of such cultural property, of police forces 

normally responsible for the maintenance of public order, however, shall not be deemed to be 

use for military purposes.655 Such activities may fulfill the obligation to safeguard cultural 

property, especially against looters.656 Employment of law enforcement personnel to protect 

cultural property is analogous to activities of armed military medical personnel deployed in and 

around military medical units and facilities in order to provide security from criminal acts.657

5.18.8.3 Marking of Cultural Property Under Special Protection. The distinctive 

emblem for cultural property is to be displayed three times in a triangular formation to indicate 

cultural property under special protection.658

The emblem shall be visible from the ground: (a) at regular intervals sufficient to 

indicate clearly the perimeter of a center containing monuments under special protection; and (b) 

at the entrance to other immovable cultural property under special protection.659

5.18.8.4 Withdrawal of Special Protection. If a Party to 1954 Hague Cultural 

 652 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(2) (“A refuge for movable cultural property may also be 

placed under special protection, whatever its location, if it is so constructed that, in all probability, it will not be 

damaged by bombs.”).

653 Refer to § 5.18.1.4 (Centers Containing Monuments).

654 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(3) (“A centre containing monuments shall be deemed to 

be used for military purposes whenever it is used for the movement of military personnel or material, even in transit. 

The same shall apply whenever activities directly connected with military operations, the stationing of military 

personnel, or the production of war material are carried on within the centre.”).

655 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(4) (“The guarding of cultural property mentioned in 

paragraph 1 above by armed custodians specially empowered to do so, or the presence, in the vicinity of such 

cultural property, of police forces normally responsible for the maintenance of public order shall not be deemed to 

be used for military purposes.”). Compare § 4.23.1 (Police as Civilians).

656 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism 

Against, Cultural Property).

657 Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

658 Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

659 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2) (“The 

emblem shall be visible from the ground: (a) at regular intervals sufficient to indicate clearly the perimeter of a 

centre containing monuments under special protection; (b) at the entrance to other immovable cultural property

under special protection.”).
308

Property Convention commits, in respect of any item of cultural property under special 

protection, a violation of its obligations to refrain from any act of hostility directed against such 

property and from use of such property or its surroundings for military purposes, the opposing 

Party shall, so long as this violation persists, be released from the obligation to ensure the 

immunity of the property concerned.660 Nevertheless, whenever possible, the latter Party shall 

first request the cessation of such violation within a reasonable time.661

Apart from violations by the opposing Party, immunity shall be withdrawn from cultural 

property under special protection only in exceptional cases of unavoidable military necessity, 

and only for such time as that necessity continues.662 Such necessity can be established only by 

an officer commanding a force the equivalent of a division in size or larger.663 However, such 

necessity should not be construed to impose an unreasonable and disproportionate responsibility 

on the attacker to avoid damage to cultural property.664 Moreover, all property may be attacked 

using any lawful and proportionate means if required by military necessity and notwithstanding 

possible collateral damage to such property.665

Whenever circumstances permit, the opposing Party shall be notified, a reasonable time 

in advance, of the decision to withdraw immunity.666 The Party withdrawing immunity is also to 

notify the Commissioner-General for Cultural Property as soon as possible as provided for in the 

Regulations for the Execution of the 1954 Hague Cultural Property Convention, in writing, 

 660 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“If one of the High Contracting Parties commits, in 

respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the 

opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the 

property concerned.”).

661 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“Nevertheless, whenever possible, the latter Party 

shall first request the cessation of such violation within a reasonable time.”).

662 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Apart from the case provided for in paragraph I of 

the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional 

cases of unavoidable military necessity, and only for such time as that necessity continues.”).

663 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Such necessity can be established only by the 

officer commanding a force the equivalent of a division in size or larger.”).

664 Section-by-Section Analysis of Provisions, 6, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998, 

MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 7 (“Due to 

ambiguous modifiers such as those in the Article 11 phrase ‘‘exceptional cases of ‘unavoidable’ military necessity,’’ 

the provisions may be misconstrued to impose an unreasonable and disproportionate responsibility on the attacker to 

avoid damage to cultural property. Clarification would help avoid a suggestion that strict compliance with the 

Convention would mean that any collateral damage would constitute a violation of the Convention.”).

665 See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009, 

2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in 

Chapter II of the Convention, ... allows all property to be attacked using any lawful and proportionate means, if 

required by military necessity and notwithstanding possible collateral damage to such property.”).

666 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Whenever circumstances permit, the opposing 

Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.”).
309

stating the reasons for withdrawing immunity.

667

5.18.9 Transport of Cultural Property. The transport of cultural property may take place: 

(1) under special protection through procedures provided in the Regulations for the Execution of 

the 1954 Hague Cultural Property Convention; and (2) in urgent cases without such procedures. 

Additional rules apply to the transport of cultural property in occupied territory.

668

The distinctive emblem for cultural property should be placed on vehicles of transport so 

as to be clearly visible in daylight from the air as well as from the ground.669

5.18.9.1 Transport Under Special Protection. Transport exclusively engaged in 

the transfer of cultural property, whether within a territory or to another territory, may, at the 

request of the State concerned, take place under special protection in accordance with the 

conditions specified in the Regulations for the Execution of the 1954 Hague Cultural Property 

Convention.670 No acts of hostility may be directed against transport under special protection.671

A request for such transport should be addressed to the Commissioner-General for 

Cultural Property and should contain all relevant information, including the reason for the 

transfer, the approximate number and importance of objects to be transferred, their present 

location, the intended destination, the means of transport to be used, the route to be followed, and 

the date proposed for transfer.672 The Commissioner-General for Cultural Property determines 

whether such transfer is justified and notifies parties to the conflict concerned of the transfer.673

 667 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(3) (“The Party withdrawing immunity shall, as soon as 

possible, so inform the Commissioner-General for cultural property provided for in the Regulations for the 

execution of the Convention, in writing, stating the reasons.”).

668 Refer to § 11.19 (Protection of Cultural Property During Occupation).

669 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2) 

(“However, without prejudice to any possible fuller markings, the emblem shall, in the event of armed conflict and 

in the cases mentioned in Articles 12 and 13 of the Convention, be placed on vehicles of transport so as to be clearly 

visible in daylight from the air as well as from the ground.”).

670 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(1) (“Transport exclusively engaged in the transfer of 

cultural property, whether within a territory or to another territory, may, at the request of the High Contracting Party 

concerned, take place under special protection in accordance with the conditions specified in the Regulations for the 

execution of the Convention.”).

671 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(3) (“The High Contracting Parties shall refrain from any 

act of hostility directed against transport under special protection.”).

672 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“The 

request mentioned in paragraph 1 of Article 12 of the Convention shall be addressed to the Commissioner-General 

for Cultural Property. It shall mention the reasons on which it is based and specify the approximate number and the 

importance of the objects to be transferred, their present location, the location now envisaged, the means of transport 

to be used, the route to be followed, the date proposed for the transfer, and any other relevant information.”).

673 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“If the 

Commissioner-General, after taking such opinions as he deems fit, considers that such transfer is justified, he shall 

consult those delegates of the Protecting Powers who are concerned, on the measures proposed for carrying it out. 

Following such consultation, he shall notify the Parties to the conflict concerned of the transfer, including in such 

notification all useful information.”).
310

Transport under special protection shall take place under the international supervision 

provided for in the Regulations for the Execution of the 1954 Hague Cultural Property 

Convention and shall display the distinctive emblem described in Article 16.674 The distinctive 

emblem for cultural property is to be displayed repeated three times in a triangular formation to 

indicate that the transport occurs under special protection.

675

The transport of cultural property to the territory of another State is subject to additional 

rules.676

5.18.9.2 Transport in Urgent Cases. If a State that is a Party to the 1954 Hague 

Cultural Property Convention considers that the safety of certain cultural property requires 

transfer, and that the matter is of such urgency that the request procedure to the CommissionerGeneral for Cultural Property cannot be followed, the transport may display the distinctive 

emblem for cultural property, provided that a request for transport under special protection has 

not already been made and refused.

677 As far as possible, notification of transfer should be made 

to the opposing Parties.

678 Nevertheless, transport conveying cultural property to the territory of 

another State may not display the distinctive emblem unless immunity has been expressly 

granted to it.679

 674 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(2) (“Transport under special protection shall take place 

under the international supervision provided for in the aforesaid Regulations and shall display the distinctive 

emblem described in Article 16.”). See also REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL 

PROPERTY CONVENTION art. 17(3) (“The Commission-General shall appoint one or more inspectors, who shall 

satisfy themselves that only the property stated in the request is to be transferred and that the transport is to be by the 

approved methods and bears the distinctive emblem. The inspector or inspectors shall accompany the property to its 

destination.”).

675 Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

676 See REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“(a) 

[W]hile the cultural property remains on the territory of another State, that State shall be its depositary and shall 

extend to it as great a measure of care as that which it bestows upon its own cultural property of comparable 

importance; (b) the depositary State shall return the property only on the cessation of the conflict; such return shall 

be effected within six months from the date on which it was requested; (c) during the various transfer operations, 

and while it remains on the territory of another State, the cultural property shall be exempt from confiscation and 

may not be disposed of either by the depositor or by the depositary. Nevertheless, when the safety of the property 

requires it, the depositary may, with the assent of the depositor, have the property transported to the territory of a 

third country, under the conditions laid down in the present article; (d) the request for special protection shall 

indicate that the State to whose territory the property is to be transferred accepts the provisions of the present Article 

[of the Regulations for the Execution of the 1954 Hague Cultural Property Convention].”).

677 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“If a High Contracting Party considers that the safety 

of certain cultural property requires its transfer and that the matter is of such urgency that the procedure laid down in 

Article 12 cannot be followed, especially at the beginning of an armed conflict, the transport may display the 

distinctive emblem described in Article 16, provided that an application for immunity referred to in Article 12 has 

not already been made and refused.”).

678 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“As far as possible, notification of transfer should be 

made to the opposing Parties.”).

679 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“Nevertheless, transport conveying cultural property 

to the territory of another country may not display the distinctive emblem unless immunity has been expressly 

granted to it.”).
311

As far as possible, necessary precautions shall be taken to avoid acts of hostility directed

against transport of cultural property under the protection provided in urgent cases and while 

displaying the distinctive emblem.680

5.18.9.3 Immunity From Seizure, Capture, and Prize. Transport of cultural 

property under special protection or under the protection provided in urgent cases is immune 

from seizure, placing in prize, or capture.

681 Means of transport exclusively engaged in the 

transport of such property is similarly immune.682 However, such immunity does not limit the 

right of visit and search of such transportation or property.683

5.18.10 AP I Provision on the Protection of Objects Which Constitute the Cultural or 

Spiritual Heritage of Peoples. Article 53 of AP I provides certain protections to “historic 

monuments, works of art or places of worship which constitute the cultural or spiritual heritage 

of peoples.”684 This provision has been interpreted in a more limited fashion than its text would 

suggest. 

For example, based on the statements of national delegations, including the U.S. 

delegation, during the negotiations of this provision, it appears that objects that qualify for 

special protection under Article 53 of AP I are substantially those that qualify for special 

protection under the 1954 Hague Cultural Property Convention.685

In addition, protection is waived when an object is used in support of the military effort 

or for military purposes.686 In addition, Canada has interpreted Article 53 to permit waiver of its 

 680 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(2) (“The High Contracting Parties shall take, so far as 

possible, the necessary precautions to avoid acts of hostility directed against the transport described in paragraph 1 

of the present Article and displaying the distinctive emblem.”).

681 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(1) (“Immunity from seizure, placing in prize, or capture 

shall be granted to: (a) cultural property enjoying the protection provided for in Article 12 or that provided for in 

Article 13; (b) the means of transport exclusively engaged in the transfer of such cultural property.”).

682 Compare § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

683 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(2) (“Nothing in the present Article shall limit the right 

of visit and search.”). Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels).

684 AP I art. 53 (“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural 

Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is 

prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of 

worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the 

military effort; (c) to make such objects the object of reprisals.”).

685 BOTHE, PARTSCH, & SOLF, NEW RULES 333 (AP I art. 53, ¶2.5.1) (“In light of this understanding [by the U.S. 

delegation], it appears that the objects which qualify for special protection under Art. 53 are substantially those 

which would qualify for special protection under Art. 8 of the Hague Convention of 1954 without, however, 

imposing a requirement for the procedural measures required by that Convention to effect such special protection.”).

686 See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED 

CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“The 

Government of the French Republic declares that if the objects protected by Article 53 are used for military 

purposes, they will lose protection which they would otherwise have according to the provisions of the Protocol.”); 

Ireland, Statement on Ratification of AP I, Nov. 19, 1999, 2073 UNTS 28, 30 (“It is the understanding of Ireland in 

relation to the protection of cultural objects in Article 53 that if the objects protected by this Article are unlawfully 

used for military purposes they will thereby lose protection from attacks directed against such unlawful military 
312

obligations when military necessity imperatively requires such waiver.687

5.19 SIEGES AND ENCIRCLED AREAS

It is lawful to besiege enemy forces. Commanders must seek to make arrangements to 

permit the passage of certain consignments and should seek to make arrangements for the 

passage of certain categories of civilians, and of religious and medical personnel. Different rules 

apply to blockade.688

5.19.1 Siege and Encirclement Permissible. It is lawful to besiege enemy forces, i.e., to 

encircle them with a view towards inducing their surrender by cutting them off from 

reinforcements, supplies, and communications with the outside world.

689 In particular, it is 

permissible to seek to starve enemy forces into submission.690

5.19.1.1 Belligerent Authority to Exercise Control in the Immediate Vicinity of 

Military Operations. The conduct of a siege or encirclement may require the imposition of 

measures of control to ensure that outsiders may not deliver supplies to enemy forces. Thus, the 

right to conduct a siege or encirclement impliedly recognizes the authority of the military 

commander to exercise control (e.g., stopping, searching, and diverting traffic) over civilians 

and other persons in the immediate vicinity of military operations. For example, commanders 

may also impose certain restrictions on neutral vessels or aircraft (such as restricting 

communications) within the immediate vicinity of the belligerent’s operations.691

5.19.2 Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and 

Consular Personnel, the Wounded and Sick, and Medical Personnel. Although the commander 

of the force laying siege has the right to forbid all communications and access between the 

besieged place and the outside, the parties to the conflict should attempt to conclude local 

 use.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“If and so long as the 

objectives protected by Article 53 are unlawfully used for military purposes, they will thereby lose protection.”); 

United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The United Kingdom 

declares that if the objects protected by this Article are unlawfully used for military purposes they will thereby lose 

protection from attacks directed against such unlawful military uses.”).

687 Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the understanding of the 

Government of Canada in relation to Article 53 that: a. Such protection as is afforded by the Article will be lost 

during such time as the protected property is used for military purposes, and b. The prohibitions contained in 

subparagraphs (a) and (b) of this Article can only be waived when military necessity imperatively requires such a 

waiver.”).

688 Refer to § 13.10 (Blockade).

689 1956 FM 27-10 (Change No. 1 1976) ¶40 (“Investment, bombardment, assault, and siege have always been 

recognized as legitimate means of land warfare.”). See also 2004 UK MANUAL ¶5.34.1 (“Attacks can be costly in 

casualties and incidental loss or damage. A more effective method may be to encircle enemy forces, cutting them 

off from supplies and communications with the outside world and forcing their surrender. The same is true of 

besieging a town or stronghold. Siege is a legitimate method of warfare as long as it is directed against enemy 

armed forces. It would be unlawful to besiege an undefended town since it could be occupied without resistance.”).

690 Refer to § 5.20 (Starvation).

691 Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations); § 14.6 (Belligerent Control of 

Aviation in the Immediate Vicinity of Hostilities).
313

agreements for the removal of wounded, sick, infirm and aged persons, children, and maternity 

cases, or for the passage of ministers of all religions, medical personnel, and medical equipment 

on their way to such areas.692 Concluding such agreements is not compulsory. A commander of 

an encircling force is not required to agree to the passage of medical or religious personnel, 

supplies, and equipment if he or she has legitimate military reasons denying such requests (e.g.,

if denying passage may increase the likelihood of surrender of enemy forces in the encircled 

area). Nonetheless, commanders should make reasonable, good-faith efforts to do so when 

possible.693

Diplomatic and consular personnel of a neutral State should not be prevented from 

leaving a besieged place before hostilities commence, but this privilege cannot be claimed while 

hostilities are in progress. If diplomatic and consular personnel of a neutral State voluntarily 

decide to remain, they are subject to the same risks as other inhabitants.694 

5.19.3 Passage of Relief Consignments. Commanders should make arrangements to 

permit the free passage of certain consignments:

• all consignments of medical and hospital stores and objects necessary for religious 

worship intended only for civilians; and

• all consignments of essential foodstuffs, clothing, and tonics (i.e., medicine) intended for 

children under fifteen, expectant mothers, and maternity cases.695

However, allowing passage of these items is not required by the party controlling the area 

unless that party is satisfied that there are no serious reasons for fearing that:

• the consignments may be diverted from their destination;

 692 GC art. 17 (“The Parties to the conflict shall endeavour to conclude local agreements for the removal from 

besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the 

passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”); GWS 

art. 15 (“Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange 

of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and 

equipment on their way to that area.”); GWS-SEA art. 18 (“Whenever circumstances permit, the Parties to the 

conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or 

encircled area and for the passage of medical and religious personnel and equipment on their way to that area.”).

693 GC COMMENTARY 139 (“The words ‘The Parties to the conflict shall endeavor’ show that under the Convention 

evacuation is not compulsory; belligerents should nevertheless regard this provision as a very strong 

recommendation to arrange for evacuation whenever it is in the interest of the civilian population and the military 

situation makes it possible.”).

694 1956 FM 27-10 (Change No. 1 1976) ¶44b (“Diplomatic and consular personnel of a neutral State should not be 

prevented from leaving a besieged place before hostilities commence, but this privilege cannot be claimed while 

hostilities are in progress. Should they voluntarily decide to remain, they must undergo the same risks as other 

inhabitants.”).

695 GC art. 23 (“Each High Contracting Party shall allow the free passage of all consignments of medical and 

hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting 

Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential 

foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.”).
314

• the control may not be effective; or 

• a definite advantage may accrue to the military efforts or economy of the enemy.696

5.19.3.1 Technical Arrangements for the Passage and Distribution of Relief 

Consignments. Commanders may require, as a condition for allowing the passage of 

consignments listed above, that the consignments be distributed under the local supervision of 

the Protecting Powers.697 Commanders may prescribe other rules and regulations for how 

consignments are to be distributed, although consignments should be forwarded as rapidly as 

possible.698

5.19.4 Attacks by Forces Laying Siege. The general rules that apply to conducting 

attacks also apply to attacks by forces laying siege.699

5.19.4.1 Use of Force to Drive Fleeing Civilians Back to Besieged Areas. In the 

past, it was permissible, but an extreme measure, to refuse to allow civilians to leave a besieged 

locality and to use force to drive any who attempted to flee back to the besieged locality.700 

However, such actions would now be prohibited because they would not be consistent with the 

duty to take feasible precautions for the protection of civilians.701 Permitting civilians to flee 

may also be militarily advantageous.702 

 696 GC art. 23 (“The obligation of a High Contracting Party to allow the free passage of the consignments indicated 

in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for 

fearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective, 

or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution 

of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or 

through the release of such material, services or facilities as would otherwise be required for the production of such 

goods.”).

697 GC art. 23 (“The Power which allows the passage of the consignments indicated in the first paragraph of this 

Article may make such permission conditional on the distribution to the persons benefited thereby being made under 

the local supervision of the Protecting Powers.”).

698 GC art. 23 (“Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free 

passage shall have the right to prescribe the technical arrangements under which such passage is allowed.”).

699 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

700 See, e.g., United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE 

THE NMT 563 (“Leningrad was encircled and besieged. Its defenders and the civilian population were in great 

straits and it was feared the population would undertake to flee through the German lines. Orders were issued to use 

artillery to ‘prevent any such attempt at the greatest possible distance from our own lines by opening fire as early as 

possible, so that the infantry, if possible, is spared shooting on civilians.’ ... It is said that if the commander of a 

besieged place expels the noncombatants, 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 the surrender.’ We might 

wish the law were otherwise but we must administer it as we find it. Consequently, we hold no criminality attached 

on this charge.”).

701 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

702 See ROGERS, LAW ON THE BATTLEFIELD 62 (“In fact, the besieging commander would be better advised to allow 

all civilians and the wounded and sick to leave the besieged area. He would then legitimately be able to prevent all 

supplies from reaching the enemy forces and bombardment and assault would be considerably eased.”).
315

5.19.5 Duties of Forces Under Siege to Take Feasible Precautions to Reduce the Risk of 

Incidental Harm. Besieged forces should take feasible precautions to reduce the risk of 

incidental harm.

703 For example, it may be appropriate to mark protected buildings to indicate 

their protected status to enemy forces.704 Similarly, it may be appropriate to concentrate the 

wounded and sick and civilians in areas remote from military objectives705 or in areas neutralized 

by arrangement with the enemy.706

5.20 STARVATION

Starvation is a legitimate method of warfare, but it must be conducted in accordance with 

the principles of distinction and proportionality, as well as other law of war rules. Starvation of 

civilians as a method of combat is also prohibited in non-international armed conflict.707

5.20.1 Starvation – Distinction. It is a legitimate method of war to starve enemy 

forces.

708 For example, it is permitted to destroy food intended as sustenance for enemy forces 

with a view towards weakening them and diverting their resources.709 Enemy forces, for the 

purpose of this rule, means those persons constituting military objectives.710 

Starvation specifically directed against the enemy civilian population, however, is 

prohibited.711 For example, it would be prohibited to destroy food or water supplies for the 

purpose of denying sustenance to the civilian population.

 703 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

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

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

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

707 Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).

708 See LIEBER CODE art. 17 (“It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the 

speedier subjection of the enemy.”). Consider AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to 

such of the objects covered by it as are used by an adverse Party: (a) As sustenance solely for the members of its 

armed forces; or (b) If not as sustenance, then in direct support of military action, provided, however, that in no 

event shall actions against these objects be taken which may be expected to leave the civilian population with such 

inadequate food or water as to cause its starvation or force its movement.”).

709 For example, Department of the Air Force, Headquarters Pacific Air Forces, Directorate of Operations Analysis,

Project CHECO [Contemporary Historical Examination of Current Operations] Report, “Ranch Hand: Herbicide 

Operations in SEA [Southeast Asia]” 19 (Jul. 13, 1971) (“The enemy documents revealed that the VC [Viet Cong] 

had suffered serious personnel losses due to the lack of food. Troops normally used in fighting had to be detailed to 

crop raising, and in one case the 95th North Vietnamese Army (NVA) regiment had to fast for one or two days on 

several occasions due to a lack of food. The overall conclusion of the PACOM report was that crop destruction was 

‘an integral, essential and effective part of the total effort in South Vietnam.’”).

710 Refer to § 5.6.2 (Persons Who Are Military Objectives).

711 See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee 

on Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“But an attack by 

any means against crops intended solely for consumption by noncombatants not contributing to the enemy’s war 

effort would be unlawful for such would not be an attack upon a legitimate military objective.”). Consider AP I art. 

54(1) (“Starvation of civilians as a method of warfare is prohibited.”).
316

5.20.2 Starvation – Proportionality. Military action intended to starve enemy forces,

however, must not be taken where it is expected to result in incidental harm to the civilian 

population that is excessive in relation to the military advantage anticipated to be gained.712

Feasible precautions to reduce the risk of harm to the civilian population or other 

reasonable measures to mitigate the burden to the civilian population may also be warranted

when seeking to starve enemy forces.

713 For example, it may be appropriate to seek to 

compensate civilians whose food has been inadvertently destroyed.714 Moreover, an Occupying 

Power would have additional duties to ensure food and water for the civilian population.

715

5.20.3 Starvation and Other Law of War Rules. Starvation as a method of warfare must 

comply with other applicable law of war rules. For example, it would be unlawful to poison 

food or water.716 Additionally, starvation, for example, may involve sieges or encirclement, 

blockades, attacks, or the seizure and destruction of enemy property.717 In each case, the rules 

applicable to those situations must be followed. 

5.20.4 AP I Provision on Objects Indispensable to the Survival of the Civilian 

Population. Article 54(2) of AP I makes it prohibited for Parties to AP I “to attack, destroy, 

remove or render useless objects indispensable to the survival of the enemy civilian population, 

such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking 

water installations, and supplies for irrigation works, for the specific purpose of denying them for 

their sustenance value to the civilian population or to the adverse party, whatever the motive, 

 712 Cf. J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee 

on Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“Where it cannot be 

determined whether crops were intended solely for consumption by the enemy’s armed forces, crop destruction 

would be lawful if a reasonable inquiry indicated that the intended destruction is justified by military necessity under 

the principles of Hague Regulation Article 23(g), and that the devastation occasioned is not disproportionate to the 

military advantage gained.”).

713 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

714 For example, Department of State, Telegram From the Department of State to the Embassy in Vietnam, 

Washington, May 7, 1963, reprinted in III FOREIGN RELATIONS OF THE UNITED STATES, 1961–1963, VIETNAM,

JANUARY–AUGUST 1963, DOCUMENT 110, p. 275 (“All herbicide operations [including crop destruction] to be 

undertaken only after it is clear both PsyWar preparations and compensation and relief machinery [for peasants 

whose crops are inadvertently destroyed] are adequate. Would appear GVN [Government of Vietnam] should 

increase compensation efforts.”); Memorandum Prepared in the Department of State, Chemical Defoliation and 

Crop Destruction in South Viet-Nam, Washington, Apr. 18, 1963, reprinted in III FOREIGN RELATIONS OF THE 

UNITED STATES, 1961–1963, VIETNAM, JANUARY–AUGUST 1963, DOCUMENT 96, pp. 240 (“The GVN [Government 

of Vietnam] has set up a mechanism for compensating peasants whose crops are inadvertently destroyed. We do not 

have much information on the results of the compensation program, but there are indications that it was not 

adequately carried out, in part because of security difficulties.”).

715 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population).

716 Refer to § 6.8 (Poison).

717 Refer to § 5.19 (Sieges and Encircled Areas); § 13.10 (Blockade); § 5.4 (Rules on Conducting Assaults, 

Bombardments, and Other Attacks); § 5.17 (Seizure and Destruction of Enemy Property).
317

whether in order to starve out civilians, cause them to move away, or for any other motive.”718

This rule would not apply to attacks that are carried out for specific purposes other than 

to deny sustenance.719 For example, this rule would not prohibit destroying a field of crops to 

prevent it from being used as concealment by the enemy or destroying a supply route that is used 

to move military supplies but is also used to supply the civilian population with food.720

Similarly, this AP I prohibition does not apply to objects that would otherwise be covered 

by it if those objects are used by an adverse party “as sustenance solely for the members of its 

armed forces” or “if not as sustenance, then in direct support of military action.”721 Actions 

against this latter category of objects forfeiting protection, however, may not be taken if they 

“may be expected to leave the civilian population with such inadequate food or water as to cause 

its starvation or force its movement.”722

Further exception is made for a State to engage in a “scorched earth” defense of a party’s

own territory.723

When adopted, this AP I prohibition was novel and the product of extensive diplomatic 

negotiation. Given the intricacy of this provision of AP I, it would be difficult to conclude that 

all of its particulars reflect customary international law. Nonetheless, the United States has 

supported the underlying principle that starvation of civilians may not be used as a method of 

 718 AP I art. 54(2).

719 See, e.g., APPENDIX TO 1985 CJCS MEMO ON AP I 56 (The restrictions of Article 54(2) “do not apply to attacks 

that are not for the specific purpose of denying sustenance;”); United Kingdom, Statement on Ratification of AP I, 

Jan. 28, 1998, 2020 UNTS 75, 77 (Article 54(2) of AP I “has no application to attacks that are carried out for a 

specific purpose other than denying sustenance to the civilian population or the adverse party.”).

720 2004 UK MANUAL ¶5.27.2 (“The law is not violated if military operations are not intended to cause starvation but 

have that incidental effect, for example, by cutting off enemy supply routes which are also used for the 

transportation of food, or if civilians through fear of military operations abandon agricultural land or are not 

prepared to risk bringing food supplies into areas where fighting is going on.”); BOTHE, PARTSCH, & SOLF, NEW 

RULES 339 (AP I art. 54, ¶2.3) (“This paragraph does not prohibit the incidental distress of civilians resulting from 

otherwise lawful military operations. It would not, for example, be unlawful to attack or destroy a railroad line 

simply because the railroad was used to transport food needed to supply the population of a city, if the railroad was 

otherwise a military objective under Art. 52 [of AP I].”).

721 AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used 

by an adverse Party: (a) As sustenance solely for the members of its armed forces; or (b) If not as sustenance, then 

in direct support of military action, provided, however, that in no event shall actions against these objects be taken 

which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation 

or force its movement.”).

722 AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used 

by an adverse Party: ... (b) If not as sustenance, then in direct support of military action, provided, however, that in 

no event shall actions against these objects be taken which may be expected to leave the civilian population with 

such inadequate food or water as to cause its starvation or force its movement.”).

723 AP I art. 54(5) (“In recognition of the vital requirements of any Party to the conflict in the defence of its national 

territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the 

conflict within such territory under its own control where required by imperative military necessity.”).
318

warfare, as discussed in the sub-sections above.724

5.21 OVERVIEW OF GOOD FAITH, PERFIDY, AND RUSES

Absolute good faith with the enemy must be observed as a rule of conduct.725 The line 

between those deceptions that good faith permits and those that good faith prohibits may appear 

indistinct and has varied according to State practice.726 Good faith prohibits:

• killing or wounding enemy persons by resort to perfidy;

727

• misusing certain signs;

728

• fighting in the enemy’s uniform;729

• feigning non-hostile relations in order to seek a military advantage;

730 and

• compelling nationals of a hostile party to take part in the operations of war directed 

against their own country.

731

However, good faith permits:

• ruses of war or other lawful deceptive activities;

732

 724 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“We 

support the principle that starvation of civilians not be used as a method of warfare, and subject to the requirements 

of imperative military necessity, that impartial relief actions necessary for the survival of the civilian population be 

permitted and encouraged. These principles can be found, though in a somewhat different form, in articles 54 and 

70.”).

725 1956 FM 27-10 (Change No. 1 1976) ¶49 (“Absolute good faith with the enemy must be observed as a rule of 

conduct; but this does not prevent measures such as using spies and secret agents, encouraging defection or 

insurrection among the enemy civilian population, corrupting enemy civilians or soldiers by bribes, or inducing the 

enemy’s soldiers to desert, surrender, or rebel.”).

726 1958 UK MANUAL ¶310 (“The borderline between legitimate ruses and forbidden treachery has varied at 

different times, and it is difficult to lay down hard and fast rules in the matter. Many of the doubtful cases, however, 

which arose at a time when, from the nature of their weapons, troops could only engage at close range, can now 

seldom or never occur.”).

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

728 Refer to § 5.24 (Improper Use of Certain Signs).

729 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).

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

731 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed 

Against Their Own Country).

732 Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).
319

• intelligence collection;733

• military information support operations, including propaganda;734 and

• certain types of bribery.735

5.21.1 Harms From Breaches of Good Faith. Breaches of good faith may: (1) undermine 

the protections afforded by the law of war to classes of persons and objects; (2) impair nonhostile relations between opposing belligerents; and (3) damage the basis for the restoration of 

peace short of complete annihilation of one belligerent by another.

Breaches of good faith, principally perfidious conduct, may undermine the protections 

afforded by the law of war to civilians, persons who are hors de combat, or certain other classes 

of persons and objects.

736 

Breaches of good faith also impair other non-hostile relations between opposing 

belligerents during the war. For example, such breaches may diminish the legitimate activities 

that depend upon a degree of mutual respect and trust between hostile forces, such as effecting 

surrender or collection of the dead, wounded, or sick (enemy or friendly force) on the battlefield. 

It also may make it more difficult for military commanders to ensure that their forces comply 

with the law of war where treacherous acts by the enemy have resulted in casualties among their 

own forces.

Breaches of good faith also damage, and may destroy, the basis for restoration of peace 

short of the complete annihilation of one belligerent by another.737 A degree of mutual respect 

and trust is essential for the negotiation of cease-fires, truces, surrenders, and other agreements 

necessary to bring an end to hostilities.

5.22 TREACHERY OR PERFIDY USED TO KILL OR WOUND

During international armed conflict, it is prohibited to kill or wound the enemy by resort 

to perfidy.738

 733 Refer to § 5.26.1 (Propaganda).

734 Refer to § 5.26.2 (Information Gathering).

735 Refer to § 5.26.3 (Bribery or Offering of Rewards).

736 BOTHE, PARTSCH, & SOLF, NEW RULES 202 (AP I art. 37, ¶2.1) (“Combatants, in practice, find it difficult to 

respect protected persons and objects if experience causes them to believe or suspect that their adversaries are 

abusing their claim to protection under the rules of international law applicable in armed conflict in order to achieve 

a military advantage. The prohibitions of perfidy are thus directly related to protection for the wounded and sick, 

hors de combat combatants, prisoners of war and civilians.”). See also footnote 164, § 4.6.4 (Having a Fixed 

Distinctive Sign Recognizable at a Distance).

737 1956 FM 27-10 (Change No. 1 1976) ¶50 (“Treacherous or perfidious conduct in war is forbidden because it 

destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.”).

738 HAGUE IV REG. art. 23(b) (It is especially forbidden “[t]o kill or wound treacherously individuals belonging to 

the hostile nation or army”); LIEBER Code art. 101 (noting that “the common law of war allows even capital 

punishment for clandestine or treacherous attempts to injure an enemy”). Consider ROME STATUTE art. 8(2)(b)(xi) 
320

5.22.1 Definition of Perfidy. Acts of perfidy are acts that invite the confidence of enemy 

persons to lead them to believe that they are entitled to, or are obliged to accord, protection under 

the law of war, with intent to betray that confidence.

739

The key element in perfidy is the false claim to protections under the law of war in order 

to secure a military advantage over the opponent.740 The claim must be to legal protections.741

5.22.1.1 Perfidy and Treachery – Notes on Terminology. “Treachery” and 

“perfidy” have been used interchangeably.742 Article 23(b) of the Hague IV Regulations uses the 

word “treacherously,” which was also used in Article 13(b) of the 1874 Brussels Declaration.

743 

Sometimes, “perfidy” is used to refer to conduct that is, by definition, prohibited.744 

Other times, as, for example, in AP I, “perfidy” is used to refer to a certain type of deception, 

which might not, by itself, be prohibited (e.g., feigning death would not be prohibited in order to 

facilitate escape).745 It will be important to examine closely the context to determine which 

usage is intended. This manual generally uses “perfidy” in the latter sense.

5.22.2 Perfidy - “Kill or Wound”. It is prohibited to use perfidy to kill or wound the 

enemy. It may not be prohibited to invite the confidence of the adversary that he or she is 

obligated to accord protection under the law of war, for certain purposes (e.g., to facilitate 

 

(defining war crimes in international armed conflict to include “[k]illing or wounding treacherously individuals 

belonging to the hostile nation or army”).

739 Consider AP I art. 37(1) (“Acts inviting the confidence of an adversary to lead him to believe that he is entitled 

to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to 

betray that confidence, shall constitute perfidy.”); APPENDIX TO 1985 CJCS MEMO ON AP I 26 (“Rather than 

‘treachery,’ paragraph 1 of Article 37 uses the modern term ‘perfidy,’ and defines it as ‘acts inviting the 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 the intent to betray that confidence.’ This definition, and the 

examples provided, are an accurate and helpful clarification of existing law.”).

740 ICRC AP COMMENTARY 435 (¶1500) (“The central element of the definition of perfidy is the deliberate claim to 

legal protection for hostile purposes.”).

741 BOTHE, PARTSCH, & SOLF, NEW RULES 204-05 (AP I art. 37, ¶2.4.2) (“The ICRC draft of the article referred to 

‘confidence’ without elaborating that confidence must be based on a norm of international law. It would have 

involved confidence in moral obligations as well as in binding legal obligations. This was considered to be overly 

abstract and ambiguous by delegations representing several regional groups.”).

742 For example, XV OFFICIAL RECORDS OF THE CDDH 99 (CDDH/III/SR.47 ¶78) (“Mr. Reed (United States of 

America) said that article 35, paragraph 1, was a reaffirmation and development of Article 23 b) of The Hague 

Regulations respecting the Laws and Customs of War on Land annexed to The Hague Convention No. IV of 1907 

concerning the Laws and Customs of War on Land. The word ‘treacherously’ in Article 23 b) was synonymous 

with ‘perfidy’ in article 35 of draft Protocol I.”).

743 SPAIGHT, WAR RIGHTS ON LAND 86 (“The word ‘Treachery’ in Article XXIII(b) seems hardly applicable to an 

enemy’s act, and one of the Brussels delegates proposed to substitute ‘perfidy’ for it. The original word was, 

however, retained, as being the equivalent of the German Meuchelmord (‘murder by treachery’)”).

744 1956 FM 27-10 (Change No. 1 1976) ¶50 (providing that “[t]reacherous or perfidious conduct in war is 

forbidden”).

745 BOTHE, PARTSCH, & SOLF, NEW RULES 203 (AP I art. 37, ¶2.4) (“It should be noted that Art. 37 [of AP I] does 

not prohibit perfidy per se, although the term is defined with precision.”).
321

spying, sabotage, capturing enemy personnel, or evading enemy forces). However, such 

deception may not rely on certain signs and symbols.746 Moreover, persons who use perfidy to 

engage in spying and sabotage may forfeit POW status or be liable to certain penalties under the 

domestic law of enemy States.747

5.22.2.1 AP I Prohibition on “Capture” by Resort to Perfidy. In addition to 

killing or wounding, Article 37 of AP I prohibits “capture” by resort to perfidy. The Department 

of Defense has not interpreted customary international law to prohibit U.S. forces from seeking 

to capture by resort to perfidy.

5.22.3 Examples of Killing or Wounding by Resort to Perfidy. Examples of killing or 

wounding by resort to perfidy include: 

• feigning an intent to negotiate under a flag of truce and then attacking,

748 which takes 

advantage of the rule that flags of truce may not be used to shield military operations.749

• feigning surrender and then attacking,

750 which takes advantage of the rule that the 

enemy may not attack those who have surrendered;751

• feigning of death or incapacitation by wounds or sickness752 and then attacking, which 

takes advantage of the respect afforded the dead753 or the protection afforded those who 

are hors de combat;

754

• feigning civilian status and then attacking;755 and

 746 Refer to § 5.24 (Improper Use of Certain Signs).

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

748 For example, William Gerald Downey, The Law of War and Military Necessity, 47 AJIL 251, 260 (1953) (“A 

good example of the use of deception which involved a breach of good faith is one that happened in this writer’s 

presence during the Battle of Metz in 1944. At that time the German forces held several forts south and east of 

Metz. One November morning, just as our attack was getting under way, a German unit of some 20 men came out 

of one of the forts under a white flag. The American battalion commander gave the order to cease fire, and the 

Germans marched under the protection of the white flag down the road toward our lines. As they came abreast of a 

large bunker they pulled down their white flag, ran into the bunker and immediately opened fire on our positions.”).

749 Refer to § 5.24.7 (Flags of Truce).

750 See FINAL REPORT ON THE PERSIAN GULF WAR 621 (“During the same battle, an Iraqi officer approached 

Coalition forces with his hands in the air, indicating his intention to surrender. When near his would-be captors, he 

drew a concealed pistol from his boot, fired, and was killed during the combat that followed.”).

751 Refer to § 5.9.3 (Persons Who Have Surrendered).

752 1958 UK MANUAL ¶115 note 2 (“For instance, it would be treachery for a soldier to sham wounded or dead and 

then to attack enemy soldiers who approached him without hostile intent, or to pretend he had surrendered and 

afterwards to open fire upon or attack an enemy who was treating him as hors de combat or a prisoner.).

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

754 Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or 

Shipwreck).

755 Refer to § 5.4.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).
322

• calling out “do not fire; we are friends” and then attacking.

756

5.23 USE OF ENEMY FLAGS, INSIGNIA, AND MILITARY UNIFORMS

During international armed conflict, improper use of enemy flags, military emblems, 

insignia, or uniforms, is prohibited.757

5.23.1 Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited. In 

general, the use of enemy flags, insignia, and military uniforms is prohibited during combat, but 

is permissible outside of combat.758

A similar rule is applied during naval operations.759 

5.23.1.1 Improper Use of Enemy Uniforms and “Perfidy”. The prohibition on the 

use of enemy uniforms in combat has been described as a prohibition against using enemy 

uniforms to kill or wound treacherously.

760 However, feigning enemy military status is not 

technically “perfidy” as the term is used in this manual because perfidy requires the feigning of 

protected status, and the law of war generally does not protect enemy military personnel from 

being made the object of attack.

761 

5.23.1.2 Use of Enemy Uniforms and Other Equipment Without the Intent to 

Deceive. Uses of enemy uniforms and other equipment without any intention to deceive the 

enemy are not prohibited. For example, if there is a shortage of clothing it may be necessary to 

use enemy uniforms.762 Similarly, the immediate use of captured enemy weapons or equipment 

 756 2004 UK MANUAL ¶5.9 footnote 35 (“Examples of treachery included calling out ‘Do no fire, we are friends’ and 

then firing at enemy troops who had lowered their guard, especially if coupled with the wearing of enemy uniforms 

or civilian clothing;”); 1958 UK MANUAL ¶311 note 1 (giving as an example of treacherous killing or wounding 

“calling out ‘Do not fire, we are friends’, and then firing” which “is often accompanied by the use of enemy 

uniforms or civilian clothing”); 1914 1914 RULES OF LAND WARFARE ¶178 note 1 (“It would be treacherous to call 

out, ‘Do not fire; we are friends,’ and then fire a volley.”).

757 HAGUE IV REG. art. 23(f) (making it especially forbidden “[t]o make improper use ... of the national flag, or of 

the military insignia and uniform of the enemy,”).

758 APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Existing international law prohibits ‘improper’ use of the enemy 

uniform or insignia. The United States interprets this rule to prohibit their use in combat, but not in situations 

preceding or following combat.”); 1956 FM 27-10 (Change No. 1 1976) ¶54 (“It is certainly forbidden to employ 

[national flags, insignia, and uniforms] during combat, but their use at other times is not forbidden.”).

759 Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).

760 For example, Trial of Otto Skorzeny and Others, IX U.N. LAW REPORTS 90 (General Military Government Court 

of the U.S. Zone of Germany, Aug. 18-Sept. 9, 1947) (“The ten accused involved in this trial were all officers in the 

150th Panzer Brigade commanded by the accused Skorzeny. They were charged with participating in the improper 

use of American uniforms by entering into combat disguised therewith and treacherously firing upon and killing 

members of the armed forces of the United States.”).

761 Refer to § 5.22.1 (Definition of Perfidy).

762 See 1958 UK MANUAL ¶322 (“If, owing to shortage of clothing, it becomes necessary to utilise apparel captured 

from the enemy, the badges should be removed before the articles are worn.”); 1958 UK MANUAL ¶322 note 1 

(“Articles of uniform which are distinctive of a particular army—such as the beret of the French Chasseurs des 

Alpes or the coloured berets of certain British troops, the kilt of some regiments, or the Turkish fez—should not be 

used except in cases of absolute necessity.”).
323

during combat is permissible. When circumstances permit, however, enemy insignia should 

generally be removed or alternative measures taken to distinguish U.S. forces from the enemy.

763

5.23.1.3 Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outside 

of Combat. It is a legitimate ruse to use enemy flags, insignia, and military uniforms outside of 

combat.764

5.23.1.4 Use of Enemy Uniforms to Evade Capture or Escape. Military 

personnel, such as aircrew downed behind enemy lines, may use enemy uniforms to evade 

capture. Similarly, escaping prisoners of war may use enemy military uniforms to facilitate their 

escape from a POW camp to return to friendly lines.765

However, those using enemy uniforms to evade capture or escape must not engage in 

combat while in the enemy’s uniform, and, if they are not escaping POWs, they may be liable to 

treatment as spies and saboteurs if caught behind enemy lines.766

5.23.1.5 Use of Enemy Codes, Passwords, and Countersigns Not Restricted. The 

prohibition on misuse of enemy flags, insignia, and military uniforms refers only to concrete 

visual objects, rather than enemy codes, passwords, and countersigns.767 Enemy codes, 

passwords, and countersigns may be used as a ruse to aid military operations.768 Enemy use of 

these measures is permissible because military forces are expected to take measures to guard

against the use of their codes, passwords, and countersigns by the enemy.

5.23.2 Persons Using Enemy Uniforms May Be Liable to Treatment as Spies and 

Saboteurs. Although the use of enemy uniforms outside of combat generally is neither 

prohibited by the customary law of war nor by law of war treaties to which the United States is a 

Party, combatants captured by an opposing party behind the opposing party’s lines while wearing 

 763 See LIEBER CODE art. 64 (“If American troops capture a train containing uniforms of the enemy, and the 

commander considers it advisable to distribute them for use among his men, some striking mark or sign must be 

adopted to distinguish the American soldier from the enemy.”).

764 For example, 1958 UK MANUAL ¶320 note 3 (“During the Second World War the German intelligence service in 

Belgium used German soldiers disguised as British airmen ‘to discover the attitude of the Belgian population 

towards individual British airmen landing in Belgium. The operation was completely successful. Active assistance 

was rendered by an organised network which was uncovered. The mass of the population was not involved’. 

(Extract from a captured German teleprint dated 9th January, 1943.) It would seem that this use of enemy uniform 

outside of battle operations is a legitimate ruse.”).

765 Refer to § 9.25.2.3 (Disciplinary Punishment for Certain Offenses Committed in Connection With Escape).

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

767 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 29, ¶2.3.3) (“The term ‘emblem, insignia, or uniforms’ 

[in AP I art. 39(2)] refers only to concrete visual objects, including the national symbols marked on military vehicles 

and aircraft. This prohibition does not apply to the ruse of using the adversary’s codes, passwords and countersigns 

to aid military operations.”).

768 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 207 footnote 25 (AP I art. 37, ¶2.5) (“It would be a legitimate 

ruse to use the electronic transponder aboard a combatant aircraft to respond with the code used for identifying 

friendly aircraft,”); SPAIGHT, AIR POWER AND WAR RIGHTS 176 (“The greatly developed use of wireless telephony 

afforded opportunities for deception of which the airmen were not slow to avail themselves. The feigning of orders 

to enemy machines to return to their base, for instance, was a common ruse.”).
324

the uniform of the opposing party may be liable to treatment as spies and saboteurs.769

5.23.3 AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect, 

or Impede Military Operations. In addition to prohibiting the use of enemy uniforms while 

engaging in attacks, AP I also prohibits the use of flags, military emblems, insignia, or uniforms 

of an enemy in order to shield, favor, protect, or impede military operations.770 Canada has 

taken a reservation from this rule.771

This provision of AP I is unclear as to what uses would be permissible and what uses 

would be prohibited.

772 However, because the United States is not a Party to AP I and because 

the rule is not part of customary international law, U.S. military personnel are not subject to this 

more restrictive rule.

5.24 IMPROPER USE OF CERTAIN SIGNS

Certain signs, symbols, or signals reflect a status that receives special protection under 

the law of war, and thus these signs may not be improperly used. They may not be used: (1) 

while engaging in attacks; (2) in order to shield, favor, or protect one’s own military operations; 

or (3) to impede enemy military operations. Thus, their use may be improper even when that use 

does not involve killing or wounding, and they may not be used to facilitate espionage (except 

for signs, emblems, or uniforms of a neutral or non-belligerent State). The following types of 

signs are subject to this broader rule against improper use: 

5.24.1 Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State. During 

international armed conflict, the use of signs, emblems, or uniforms of a neutral or other nation 

not a party to the conflict is prohibited.

773

However, recognized exceptions exist concerning espionage774 and warfare at sea.775

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

770 AP I art. 39(2) (“It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse 

Parties while engaging in attacks or in order to shield, favour, protect or impede military operations.”).

771 Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 463 (“The Government of Canada 

does not intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to make use of military 

emblems, insignia or uniforms of adverse parties in order to shield, favour, protect or impede military operations.”).

772 BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 39, ¶2.3) (Article 39(2) of AP I “suggests that some uses 

[of the enemy uniform] are not breaches of the Protocol, but the boundary between forbidden and permissible uses is 

not very distinct.”).

773 Consider AP I art. 39(1) (“It is prohibited to make use in an armed conflict of the flags or military emblems, 

insignia or uniforms of neutral or other States not Parties to the conflict.”); AP I art. 37(1)(d) (giving as an example 

of perfidy the feigning of protected status by the use of signs, emblems or uniforms “of neutral or other States not 

Parties to the conflict.”); BOTHE, PARTSCH, & SOLF, NEW RULES 213 (AP I art. 39, ¶2.2) (“The purpose behind the 

rule is to avoid escalation of armed conflict to neutral countries in the mistaken belief that the neutral State had 

abandoned its neutrality.”).

774 See SPAIGHT, WAR RIGHTS ON LAND 203-04 (“The spy in modern war is usually a soldier who dons civilian 

dress, or the uniform of the enemy, or of a neutral country; and in all these cases, he would be liable to punishment, 

apart from this article, for assuming a disguise to further a hostile act.”). Although Article 37(1)(d) of AP I lists 
325

5.24.2 Distinctive Emblems of the Geneva Conventions (e.g., Red Cross). The 

distinctive emblems of the red cross, red crescent, and red crystal are symbols that identify 

military medical and religious personnel, medical units, and medical transports, or certain other 

categories of persons engaged in humanitarian work as personnel and objects entitled to special 

protection.

776 These emblems may not be used except to identify these protected persons and 

objects.777

5.24.3 Markings for POW or Civilian Internee Camps. Only POW camps under the 

GPW should be marked using internationally agreed symbols, such as the PW or PG 

designation.778

Only civilian internee camps under the GC should be marked with an IC designation.

779

5.24.4 Markings for Hospital, Safety, or Neutralized Zones. Markings that distinguish 

hospital or safety zones or neutralized zones established under the 1949 Geneva Conventions 

may not be used for other purposes.780

5.24.5 Distinctive and Visible Signs to Identify Civilian Objects as Such. Certain 

distinctive and visible signs that are intended to identify that an object is protected as a civilian 

object under the law of war must not be used for other purposes.781

5.24.6 Markings for Cultural Property. The distinctive emblem for cultural property may 

not be used for other purposes.782

Flags of Truce. The improper use of a flag of truce is strictly prohibited.

783 5.24.7

 

“[t]he feigning of protected status by the use of signs, emblems or uniforms ... of neutral or other States not Parties 

to the conflict” as an example of perfidy, and Article 39(1) prohibits the “use in an armed conflict of the flags or 

military emblems, insignia or uniforms of neutral or other States not Parties to the conflict,” Article 39(3) of AP I 

clarifies that “[n]othing in this Article or in Article 37, paragraph 1 (d), shall affect the existing generally recognized 

rules of international law applicable to espionage ... .”

775 APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Article 39, paragraph 1, of the Protocol prohibits the use of neutral 

flags, uniforms or emblems in armed conflict. This is already a rule of customary law, to which recognized 

exceptions exists governing espionage and warfare at sea. The exceptions are preserved by paragraph 3 of the 

Article.”). Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).

776 Refer to § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).

777 Refer to § 7.15.4 (Prohibitions on Unauthorized Uses of the Distinctive Emblem).

778 Refer to § 9.11.4.3 (Marking of POW Camps).

779 Refer to § 10.11.1.3 (Marking of Internment Camps).

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

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

782 Refer to § 5.18.7.4 (Other Uses of the Distinctive Emblem for Cultural Property Prohibited During Armed 

Conflict).

783 Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).
326

5.25 RUSES OF WAR AND OTHER LAWFUL DECEPTIONS

Ruses of war are considered permissible.

784 In general, a belligerent may resort to those 

measures for mystifying or misleading the enemy against which the enemy ought to take 

measures to protect itself.

785 Apart from ruses of war, certain other deceptions are not 

prohibited, but may expose combatants employing them to liability as spies and saboteurs.

5.25.1 Definition of Ruses of War. Ruses of war are acts that are intended to mislead an 

adversary or to induce him to act recklessly, but that do not infringe upon any rule of 

international law applicable in armed conflict and that are not perfidious because they do not 

invite the confidence of an adversary with respect to protection under that law.786

Ruses of war are methods, resources, and techniques that can be used either to convey 

false information or deny information to opposing forces. They can include physical, technical, 

or administrative means, such as electronic warfare measures, flares, smoke, chaff, aerosol 

material, or dissemination devices.

5.25.1.1 Acts That Are Intended to Mislead an Adversary or to Induce an 

Adversary to Act Recklessly. Ruses may be used for a variety of purposes, such as:

• facilitating surprise attacks or ambushes,787 such as by

o misleading the enemy as to the planned targets or locations of military 

operations;788

 784 HAGUE IV REG. 24 (“Ruses of war and the employment of measures necessary for obtaining information about 

the enemy and the country are considered permissible.”). Consider AP I art. 37(2) (“Ruses of war are not 

prohibited.).

785 1956 FM 27-10 (Change No. 1 1976) ¶49 (“In general, a belligerent may resort to those measures for mystifying 

or misleading the enemy against which the enemy ought to take measures to protect himself.”).

786 Consider AP I art. 37(2) (“Such ruses are acts which are intended to mislead an adversary or to induce him to act 

recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious 

because they do not invite thé confidence of an adversary with respect to protection under that law.”). Refer to

§ 5.22.1 (Definition of Perfidy).

787 Refer to § 5.4.6.1 (Surprise Attacks).

788 For example, FINAL REPORT ON THE PERSIAN GULF WAR 247 (“CINCCENT [Commander-in-Chief, U.S. Central 

Command] placed a high priority on deception operations which were intended to convince Iraq that the main attack 

would be directly into Kuwait, supported by an amphibious assault. All components contributed to the deception 

operation. Aggressive ground force patrolling, artillery raids, amphibious feints and ship movements, and air 

operations all were part of CINCCENT’s orchestrated deception operation.”); SPAIGHT, AIR POWER AND WAR 

RIGHTS 185 (“‘The greatest hoax in military history’ was the description officially applied to the scheme of 

deception used to induce the Germans to believe that the invasion of the Continent in June, 1944, was coming in the 

Pas de Calais and not in Normandy. It was carried out by a force of 105 aircraft of the R.A.F., by 34 ships of the 

Royal Navy, and by ‘R.C.M.’ (Radio Counter-Measures). On the night of 5 June, 18 small ships of the Navy 

steamed towards Cap d’Antifer to give the impression of an intended landing, while a bomber squadron, No. 617, 

under G/Capt. G. L. Chesire, V.C., circled over them, dropping bundles of ‘Window,’ the thin metallised strips 

which produce false echoes on the enemy’s radar screens and so confuse their plotting. Another squadron, No. 218, 

with 16 ships, made a similar feint towards Boulogne, and other methods of deception were practised elsewhere 
327

o baiting the enemy into a trap; or

o distracting or disorienting the enemy; 

• inducing enemy forces to waste their resources;

• inducing enemy forces to surrender by falsely alleging military superiority;

• provoking friendly fire among enemy forces; or 

• causing confusion among enemy forces.

5.25.1.2 But That Do Not Infringe Upon Any Rule of International Law 

Applicable in Armed Conflict. According to the definition in AP I, ruses do not infringe upon 

any rule of international law applicable in armed conflict. For example, misusing certain signs 

and symbols would not constitute ruses.789 Similarly, although fighting in the enemy’s uniform 

would not be perfidy since enemy military personnel are not generally protected by the law of 

war, fighting in the enemy’s uniform also would not be a ruse, since such action would infringe 

upon the rule against improper use of the enemy’s uniform.790

5.25.1.3 And That Are Not Perfidious Because They Do Not Invite the Confidence 

of an Adversary With Respect to Protection Under That Law. The ruses described in AP I do not 

invite the confidence of the enemy with respect to protection under the law of war.791 For 

example, pretending to be a civilian would not constitute a ruse, although it may be a permissible 

deception in certain circumstances.

792

5.25.1.4 Ruses – Notes on Terminology. The term “ruse” is sometimes used as a 

legal term of art to mean deceptions that are not prohibited by the law of war. In other cases,

“ruse” may be used as a factual term to mean a deception that may or may not be prohibited by 

the law of war, and thus the distinction is made between “lawful” and “unlawful” ruses.

793

In this manual, the term “ruse” is used to indicate a certain category of permissible 

deceptions.

5.25.2 Examples of Ruses. Often, ruses of war operate by misleading the enemy as to the 

identity, strength, position, or disposition of one’s own forces. Ruses of war include, but are not 

 

along the Channel. The result was that the enemy were led to believe that convoys were moving to points other than 

that at which the landing was in fact made with complete success and without opposition by air or sea.”).

789 Refer to § 5.24 (Improper Use of Certain Signs).

790 Refer to § 5.23.1 (Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited).

791 Refer to § 5.22.1 (Definition of Perfidy).

792 Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).

793 1956 FM 27-10 (Change No. 1 1976) ¶50 (“Ruses of war are legitimate so long as they do not involve treachery 

or perfidy on the party of the belligerent resorting to them.”).
328

limited to:

794

• decoys or dummy materials, such as dummy weapons, equipment, ships, aircraft, and 

buildings;795

• feigned activity or inactivity, such as 

o simulating quiet; 

o feigned flights, retreats, attacks, marches,

796 movements (e.g., approaching a 

destination indirectly797), supply movements, operations, withdrawals, or camp;

• mimicking other friendly forces;

798

• camouflage or deceptive lighting;

799

• removing or altering identifying information, including moving identifying landmarks;

• planting false information in a manner that allows enemy forces to intercept it,800 such as 

 794 Consider AP I art. 37 (giving as examples of lawful ruses “the use of camouflage, decoys, mock operations and 

misinformation”).

795 For example, SPAIGHT, WAR RIGHTS ON LAND 153-54 (“The ‘Quaker guns’—logs shaped like ordinary cannon 

and mounted on wheels—which the Confederates used at Vicksburg to induce the besieging Federals to credit them 

with an heavier armament than they possessed...[were a] legitimate ruse[] of war.”).

796 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 186 (“The ruse of reversing temporarily the direction of a 

march was used on both sides in the first world war. ‘Aeroplane observers can easily be deceived by a body of the 

enemy who, on sighting the aeroplane, move at once in a contrary direction to that of the real march, and turn back 

as soon as the machine has gone to give the news.’...[A] Turkish order which was captured in the Kara Tepe 

operations in Mesopotamia in December, 1917, instruct[ed] the Turkish infantry to try to deceive the British 

aeroplanes by setting out at once upon the march towards Jebel Hamrin if the aeroplanes came into sight and only to 

return to Kara Tepe upon the withdrawal of the aeroplanes.”).

797 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 187 (“The outstanding example of the technique of indirect 

approach is to be found in the raid on Munich on the night of 24 April, 1944. A force of Lancasters left England in 

the evening and made for north Italy; they crossed the French Alps and flew nearly to Milan; then they suddenly 

changed direction to the north-east and flew to Munich, which was heavily bombed. The feint took the Germans 

completely by surprise and the raiders’ losses were extremely low. The bewilderment of the defences was increased 

by the fact that Karlsruhe was attacked, after direct approach, on the same night.”).

798 Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

799 For example, SPAIGHT, WAR RIGHTS ON LAND 154 (“The concealment of cannon in deftly arranged branches or 

brushwood is a common device of gunners, but the Japanese reached a dizzy and dramatic height of stratagem when 

they actually transformed the face of nature as a means of masking their batteries. On the night before the battle of 

the Yalu they transplanted trees to hide the tell-tale discharge of their artillery, choosing those growing either 

directly in front or directly behind the entrenchment that was to be concealed. Thus next morning the landscape 

appeared unchanged from the Russian side of the river, as the fact that a tree of a particular shape had advanced or 

retired 200 or 300 yards during the night was naturally imperceptible.”) (internal quotations omitted).

800 For example, ALBERT N. GARLAND & HOWARD M. SMYTH, SICILY AND THE SURRENDER OF ITALY 64-65 (1993) 

(“One part of this plan, known as Operation Mincemeat, was designed to convince the enemy high command that 

the objectives of the impending Allied offensive in the Mediterranean were Sardinia and the Peloponnesus rather 

than Sicily. The plan itself was simple but highly imaginative. With painstaking care a counterfeit letter from 
329

through the use of

o false messages among one’s own forces;

o intensifying or minimizing message traffic; or

o bogus messages, dispatches, or newspapers;

• lying in the course of a POW interrogation in answering questions where no obligation to 

answer correctly exists;

• feigning enemy military status by using enemy flags, insignia, or military uniforms 

outside of combat;801 or

• using enemy codes, signals, or passwords.

802

5.25.2.1 Mimicking Other Friendly Forces. It is a permissible ruse of war for 

combatant forces to mimic other friendly forces. For example, small forces may simulate larger 

units.

803 Units of one type may pretend to be units of another type.804 Markings that identify 

equipment or personnel as belonging to a particular unit may be removed. Individuals or units 

may also dress like friendly forces.

805

 

‘Archie Nye’ of the British War Office in London was drawn up....[i]ndicating that a feint against Sicily would be a 

deception maneuver to screen an invasion of Sardinia.... To get this letter into Axis hands, British intelligence 

obtained with great difficulty the body of a service man who had been a victim of pneumonia.... With a courier’s 

briefcase realistically chained to the wrist, the body was cast adrift at a predesignated spot where tide and current 

would carry it to [the Axis-controlled] shore.... The information reached the Germans who accepted it as 

authentic.”).

801 Refer to § 5.23.1.3 (Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outside of Combat).

802 Refer to § 5.23.1.5 (Use of Enemy Codes, Passwords, and Countersigns Not Restricted).

803 For example, HUGH M. COLE, THE LORRAINE CAMPAIGN 162 (1993) (“General Walker asked for a ‘deception 

team’ to simulate a stronger force in the cavalry sector. This team finally arrived from 12th Army Group 

headquarters and operated for some weeks in the area as an ‘armored division.’ (The Germans seem to have been 

well deceived for the OB WEST maps show the ‘14th Armored Division’ in this area.)”).

804 For example, R. FRANK FUTRELL, ET AL., ACES AND AERIAL VICTORIES: THE UNITED STATES AIR FORCE IN 

SOUTHEAST ASIA 1965-1973, 37-43 (1976) (“The West Force used an elaborate ruse to make the Phantoms appear 

to the enemy as an F-105 Rolling Thunder strike force. The F4C’s used F-105 tanker anchors, refueling altitudes, 

approach routes, approach altitudes, airspeeds, and radio call signs and communications to simulate a normal 

Thunderchief strike force. This was intended to deceive the enemy on NVN [North Vietnamese] radars. ... An 

opportunity to perpetuate another ruse presented itself a few days later, when RF-4C weather reconnaissance aircraft 

were forced to abort their planned weather reconnaissance missions in North Vietnam because of MIG attacks on 3 

and 4 January 1967. To lure the MIG’s into the air, two F4C’s on the following day flew, in close formation, a route 

similar to that normally flown by weather reconnaissance aircraft. The intent of the F4C’s was to deceive the enemy 

radar operators into believing that only one aircraft was flying a weather reconnaissance mission.”).

805 For example, W. Hays Parks, Special Forces’ Wear of Non-Standard Uniform, 4 CHICAGO JOURNAL OF 

INTERNATIONAL LAW 493, 554 (2003) (“In response to the September 11, 2001 al Qaeda terrorist attacks against the 

World Trade Center and the Pentagon, US and Coalition Special Forces began operations in Afghanistan in late 

September 2001. At the request— initially insistence—of the leaders of the indigenous forces they supported, they 

dressed in indigenous attire. For identification purposes within the Northern Alliance, this included the Massoud 
330

5.25.3 Examples of Other Deceptions That Are Not Prohibited. Certain deceptions may 

not meet the definition of “ruses” because they may invite the confidence of an adversary with 

respect to protection under the law of war. Nevertheless, these deceptions are not technically 

prohibited by the law of war, even though, in some cases, they may expose the persons 

performing them to liability under an enemy State’s domestic law.

806 These include:

• feigning incapacitation or death in order to escape the enemy,

807 such as 

o a soldier who feigns death in the hope that he or she will be left alone by enemy 

forces, permitting him or her subsequently to take evasive actions to return to 

friendly forces without engaging the enemy;808 and

o an aircraft crew that feigns loss of control and the appearance that the aircraft was 

about to crash in order to dissuade further enemy attack and to break contact with 

enemy forces;

809

• feigning civilian status to facilitate spying or sabotage, such as

o false use of journalist credentials; and

• using an informal ceasefire for the purpose of collecting wounded and dead and to 

withdraw unseen by the enemy.810

 

pakol (a round brownish-tan or gray wool cap) and Massoud checkered scarf, each named for former Northern 

Alliance leader Ahmad Shah Massoud, who was assassinated days before the al Qaeda attacks on the World Trade 

Center and Pentagon. This attire was not worn to appear as civilians, or to blend in with the civilian population, but 

rather to lower the visibility of US forces vis-à-vis the forces they supported.”).

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

807 ICRC AP COMMENTARY 438 (¶1505) (“[P]erfidious use always involves the abuse of the adversary’s confidence. 

Thus, for example, feigning death simply to save one’s life would not be an act of perfidy, while feigning death to 

kill an enemy once his back is turned, would constitute an act of perfidy.”).

808 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 173 (“A ruse which is mentioned by Major C. J. Biddle, 

American Aviation, appears to have been a legitimate one. An American pilot was forced down in the German 

lines. ‘When he landed he left his motor turning over slowly and lay over in his cockpit, as though he had been shot, 

the Huns all the time circling above his head. They evidently thought he was done for, for after looking him over 

they flew away, whereupon our pilot took off and came home.”).

809 SPAIGHT, AIR POWER AND WAR RIGHTS 170-71 (“The chief ruse practised in air fighting in the first world war 

was the vertical nose-dive or spin, used by a pilot who was outfought or outnumbered, or whose gun had jammed or 

engine failed, to escape by simulating a fall out of control.”).

810 For example, 1958 UK MANUAL ¶319 note 1 (“[A]t 1 p.m. on 7th March, 1905, during the battle of Mukden, a 

group of Russians bearing Red Cross and white flags advanced towards the 1st Japanese Army and asked for a 

suspension of arms for several hours to remove the wounded and dead. The Japanese agreed, as they themselves 

had many wounded, but the suspension was made without any formal agreement (sans entente bien dèfinie). In the 

evening, when the Japanese reopened fire, there was no reply and it was found that the Russians had retired during 

the suspension of arms.”).
331

5.26 NON-FORCIBLE MEANS AND METHODS OF WARFARE

In general, propaganda, information gathering, and bribery are permissible means and 

methods of warfare. 

5.26.1 Propaganda. In general, the use of propaganda is permissible under the law of 

war, even when it encourages acts that violate an enemy State’s domestic law or is directed 

towards civilian or neutral audiences. However, certain types of propaganda are prohibited.

5.26.1.1 Propaganda – Notes on Terminology. Propaganda has been referred to 

as psychological warfare, psychological operations (PSYOP), or military information support 

operations (MISO).811 The word “propaganda” often has been used with a pejorative 

connotation to refer to misleading or false statements, but “propaganda” is used in this section 

without intending any such connotation.

5.26.1.2 Propaganda Generally Permissible. In general, propaganda is a 

permissible means of warfare.812 Propaganda has been disseminated through a variety of 

communications media, including printed materials, loudspeakers, radio or television broadcast, 

aircraft, or the internet. Propaganda is sometimes used with bribery813 or to support intelligence 

gathering.814 Propaganda may be directed at enemy civilians and neutrals.815

Propaganda may encourage enemy persons to commit acts that would violate the 

domestic law of the enemy State.816 For example, it would be permissible to encourage enemy 

 811 Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to 

Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“Since the 1940s, military 

information activities, undertaken both in wartime and peacetime, have been described as ‘psychological warfare,’ 

‘psychological operations,’ or PSYOP. These terms helped draw a useful distinction between lethal military 

operations, on the one hand, and military efforts to change minds and reduce or prevent conflict through truthful, 

persuasive information, on the other. Today, however, the term ‘Psychological Operations’ has become 

anachronistic and misleading. Although PSYOP activities rely on truthful information, credibly conveyed, the term 

PSYOP tends to connote propaganda, brainwashing, manipulation, and deceit.”).

812 GREENSPAN, MODERN LAW OF LAND WARFARE 323 (“Propaganda must be considered a legal means of warfare, 

since there are no specific rules of war which forbid its use, nor is it as such incompatible with the existing rules of 

war.”).

813 1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“In World War I, Austrian airmen dropped leaflets over Italian lines 

inviting desertion with the promise of compensation for every airplane surrendered intact. In the Korean conflict, an 

award was offered to any enemy flier who would defect with his plane intact to the United Nations Command. In 

fact $100,000 was paid to a North Korean pilot for such a defection.”).

814 Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to 

Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“In Iraq and Afghanistan, U.S. 

military information programs urging civilians to report possible insurgent activity led to valuable information, 

enabling our forces to disarm hundreds of improvised explosive devices safely and capture numerous key insurgent 

leaders.”).

815 For example, 1958 UK MANUAL ¶313 note 3 (“In the Second World War both sides established regular wireless 

services for spreading war news among both the enemy and neutrals. They also resorted on a large scale to 

propaganda disseminated from aircraft and from the ground.”).

816 See SPAIGHT, AIR POWER AND WAR RIGHTS 333 (“To drop a pamphlet inciting to assassination would no doubt 

be an offence under the laws of war, assassination being forbidden by those laws. It is an entirely different matter 
332

combatants to defect, desert, or surrender.817 Similarly, it is generally permissible to encourage 

insurrection among the enemy civilian population.

818

5.26.1.3 Prohibited Types of Propaganda. Propaganda must not: (1) incite 

violations of the law of war; nor (2) itself violate a law of war rule.

Propaganda must not incite acts that are prohibited by the law of war.819 For example, 

propaganda intended to incite attacks against civilians is prohibited. In certain cases, individuals 

may be liable for instigating or inciting violations of the law of war.

820

Propaganda is also prohibited when it would violate other law of war rules. For example, 

it is specifically prohibited for an Occupying Power to use propaganda that aims at securing 

voluntary enlistment of protected persons in its armed or auxiliary forces.821 Similarly, it is 

prohibited to declare that no quarter will be given, and propaganda in the form of a declaration to 

the adversary that no quarter will be given would be prohibited.822 In addition, propaganda 

would be prohibited if it constituted a measure of intimidation or terrorism against the civilian 

population, such as the threats of violence whose primary purpose is to spread terror among the 

civilian population.823 Similarly, propaganda may not be used to subject a detainee to public 

curiosity or other humiliating or degrading treatment.824 Additionally, the delivery of the 

 

when the act which the message seeks to accomplish is one not repugnant to natural law, not malum in se, but 

merely contrary to the law (because to the interest) of the State affected, or malum prohibitum. It cannot be held that 

to try to persuade a modern civilized nation to change its form of government is to incite to an act of the former 

category.”).

817 For example, FINAL REPORT ON THE PERSIAN GULF WAR xxvi (“Coalition strategy also benefitted immensely 

from psychological operations, the success of which is evidenced primarily by the large number of Iraqi soldiers

who deserted Iraqi ranks or surrendered without putting up any resistance during the ground offensive. Our efforts 

built on, among other factors, the disheartening effect on Iraqi troops of the unanswered and intensive Coalition 

aerial bombardment, the privations they suffered due to the degradation of the Iraqi logistics system, and the threat 

of the impending ground campaign. Radio transmissions and leaflets exploited this demoralization by explaining to 

the Iraqi troops how to surrender and assuring them of humane treatment if they did. More specific messages 

reduced Iraqi readiness by warning troops to stay away from their equipment (which was vulnerable to attack by 

precision munitions) and induced desertions by warning troops that their positions were about to be attacked by B52s.”).

818 For example, LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 426-27 (§162a) (“The legitimacy, formerly 

controversial, of inciting enemy subjects to rise against the Government in power is now no longer disputed. ... 

While, in the Second World War, both sides established regular wireless services for spreading war news among 

both the enemy and the neutrals, the Allies resorted on a large scale to propaganda disseminated from aircraft as a 

means of inducing the population of Germany to remove a dictatorial régime which, it was asserted, was solely 

responsible for the war.”).

819 1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“Propaganda which would incite illegal acts of warfare, as for example 

killing civilians, killing or wounding by treachery or the use of poison or poisonous weapons, is forbidden.”).

820 Refer to § 18.23.2 (Instigating or Directly Inciting).

821 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).

822 Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

823 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

824 Refer to § 8.2.2 (Protection Against Humiliating or Degrading Treatment).
333

propaganda should be consistent with other law of war obligations.825

5.26.2 Information Gathering. The employment of measures necessary for obtaining 

information about the enemy and their country is considered permissible.826

Information gathering measures, however, may not violate specific law of war rules.827 

For example, it would be unlawful, of course, to use torture or abuse to interrogate detainees for 

purposes of gathering information. Similarly, it is prohibited to make improper use of a flag of 

truce to obtain information.828

Some forms of deception used to gather information, although not prohibited by the law 

of war, may put the persons engaging in them at risk of being treated as spies.829

5.26.3 Bribery or Offering of Rewards. In general, it is permissible to offer rewards for 

assistance in the conduct of hostilities, including rewards intended to corrupt enemy combatants 

or civilians.830 Rewards, however, may not be offered for the commission of violations of the 

law of war, and rewards may not be offered for the killing of enemy persons.

5.26.3.1 Prohibition on Offering Rewards for Enemy Persons Dead or Alive. It is 

forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons 

“dead or alive.”831 Such actions encourage the denial of quarter or encourage private persons to 

take up arms whose participation in hostilities is often undisciplined and associated with the 

commission of war crimes.832 This prohibition extends to offers of rewards for the killing or 

wounding of all enemies, including specific individuals or a class of enemy persons (e.g., 

officers). 

However, this rule would not prohibit offering rewards for the capture of unharmed 

enemy personnel generally or of particular enemy personnel.

833 Similarly, this rule does not 

 825 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 324 (“It would appear to be improper to induce enemy 

nationals to listen to propaganda emanating from the opposing side by such methods as doling out a few names of 

prisoners of war on the occasion of each broadcast and deliberately holding other next of kin in suspense, instead of 

transmitting such information by the most rapid means possible.”).

826 HAGUE IV REG. 24 (“[T]he employment of measures necessary for obtaining information about the enemy and 

the country are considered permissible.”).

827 GREENSPAN, MODERN LAW OF LAND WARFARE 325 (“In obtaining information, a belligerent must not 

contravene specific rules of war.”).

828 Refer to § 5.24.7 (Flags of Truce).

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

830 1958 UK MANUAL ¶313 (“It is not unlawful to employ spies; or to corrupt enemy civilians or soldiers by bribes 

in order to induce them to give information, to desert with or without technical equipment, new weapons, vehicles or 

aircraft, to surrender, to rebel, or to mutiny; or to give false information to the enemy.”).

831 1956 FM 27-10 (Change No. 1 1976) ¶31 (Article 23 of the Hague IV Regulations “is construed as prohibiting ... 

putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive.’”).

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

833 See 2004 UK MANUAL ¶5.14.1 (“[O]ffers of rewards for the capture unharmed of enemy personnel generally or 

of particular enemy personnel would be lawful.”).
334

prohibit offering rewards for information that may be used by combatants to conduct military 

operations that attack enemy combatants.

5.27 PROHIBITION AGAINST COMPELLING ENEMY NATIONALS TO TAKE PART IN THE OPERATIONS 

OF WAR DIRECTED AGAINST THEIR OWN COUNTRY

During international armed conflict, it is prohibited to compel the nationals of the hostile 

party to take part in the operations of war directed against their own country, even if they were in 

the belligerent’s service before the commencement of the war.834 Underlying this prohibition is 

the principle that States must not compel foreign nationals to commit treason or otherwise to 

violate their allegiance to their country.835

Additional restrictions are applicable with respect to POWs, retained personnel, protected 

persons in the home territory of a belligerent, and protected persons in occupied territory.

836 

5.27.1 Compel. This prohibition applies to attempts to compel enemy nationals, rather 

than measures short of compulsion, such as bribing enemy nationals or seeking to influence them 

through propaganda.837 However, it is specifically prohibited for an Occupying Power to use 

propaganda that aims at securing voluntary enlistment of protected persons in its armed or 

auxiliary forces.838

5.27.2 Nationals of a Hostile Party ... Against Their Own Country. This rule applies to 

nationals of a hostile party; States are not prohibited by the law of war from compelling their 

nationals to serve in the armed forces.

839 Similarly, this rule would not prohibit States from 

 834 HAGUE IV REG. art. 23 (“A belligerent is likewise forbidden to compel the nationals of the hostile party to take 

part in the operations of war directed against their own country, even if they were in the belligerent’s service before 

the commencement of the war.”).

835 See Johnson v. Eisentrager, 339 U.S. 763, 773 (1950) (“The United States does not invoke this enemy allegiance 

only for its own interest, but respects it also when to the enemy’s advantage. In World War I, our conscription act 

did not subject the alien enemy to compulsory military service. 40 Stat. 885, c. XII, § 4. The Selective Service Act 

of 1948, 62 Stat. 604, 50 U.S.C. Appendix, § 454(a), exempts aliens who have not formally declared their intention 

to become citizens from military training, service and registration, if they make application, but if so relieved, they 

are barred from becoming citizens. Thus, the alien enemy status carries important immunities, as well as 

disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own 

country for the sake of ours. This also is the doctrine and the practice of other states comprising our Western 

Civilization.”).

836 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties); 

§ 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on 

Compulsory Service in an Occupying Power’s Armed Forces).

837 United States v. Weizsaecker, et al. (The Ministries Case), XIV TRIALS OF WAR CRIMINALS BEFORE THE NMT

549 (“As the war progressed Germany suffered severe losses of manpower. It adopted conscription as to its own 

nationals and in many instances of foreign nationals living within its borders. We hold that it is not illegal to recruit 

prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons 

to enter into the armed services obviously violates international law.”). Refer to § 5.26.1 (Propaganda); § 5.26.3

(Bribery or Offering of Rewards).

838 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).

839 Refer to § 4.5.2.4 (Draftees).
335

compelling persons to betray an allegiance to a non-State armed group during non-international 

armed conflict.

840

 840 Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).
336

VI – Weapons

Chapter Contents

6.1 Introduction

6.2 DoD Policy of Reviewing the Legality of Weapons

6.3 Other Practices to Help Implement Law of War Obligations With Respect to 

Weapons

6.4 Prohibited Weapons

6.5 Lawful Weapons

6.6 Weapons Calculated to Cause Superfluous Injury

6.7 Inherently Indiscriminate Weapons

6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons

6.9 Biological Weapons

6.10 Certain Environmental Modification Techniques

6.11 Weapons Injuring by Fragments Not Detectable by X-Rays

6.12 Landmines, Booby-Traps, and Other Devices

6.13 Cluster Munitions

6.14 Incendiary Weapons

6.15 Laser Weapons

6.16 Riot Control Agents

6.17 Herbicides

6.18 Nuclear Weapons

6.19 Explosive Ordnance

6.20 Explosive Remnants of War

6.1 INTRODUCTION

This Chapter addresses the legal review of new weapons and legal rules specific to 

certain types of weapons, including whether certain weapons are illegal per se, specific rules for 

the use of certain other weapons, and obligations that may arise after certain weapons are used.

In addition to the law of war, other law, policy, and regulation may apply to certain 

weapons. Such law, policy, or regulation may include arms control agreements, U.S. domestic 

law, U.S. policy, applicable rules of engagement, and other military orders. This Chapter notes 

some provisions of such law, policy, and regulation where relevant, but does not seek to address

exhaustively all of them.

1

 In advising on the legality of specific weapons, one must take care to 

identify all applicable restrictions and not rely unduly on the absence of discussion in this 

Chapter as reflecting the absence of any such restrictions.

6.1.1 Legality of the Weapon Itself (Per Se) Distinguished From the Legality of the Use 

of the Weapon. A weapon may be illegal per se if a treaty to which the United States is a Party 

 1 Refer to § 1.2.2.4 (Citation of Policies and Regulations).
337

or customary international law has prohibited its use under all circumstances.2

 For example, the 

use of “blinding laser” weapons is prohibited, regardless of how they are used.

3

On the other hand, most weapons are not illegal per se. That is, their use may be lawful 

in some circumstances, although unlawful in others, such as if they are used to attack combatants

placed hors de combat.

4

 

Law of war issues related to targeting (e.g., the requirement that an attack may only be 

directed against a military objective) generally are not determinative of the lawfulness of a 

weapon. However, weapons that are inherently indiscriminate are prohibited.

5

 In addition, 

certain weapons, such as mines, are subject to specific rules on their use in order to reduce the 

risk of harm to the civilian population.6

6.2 DOD POLICY OF REVIEWING THE LEGALITY OF WEAPONS

As provided in DoD issuances, DoD policy for many years has required the legal review 

of the intended acquisition or procurement of weapons or weapon systems; this review includes 

ensuring that such acquisition or procurement is consistent with the law of war.7

 These DoD 

policy requirements have been implemented in Military Department regulations.

8

The fact that the legality of a weapon is discussed in this manual does not obviate the 

 2 1976 AIR FORCE PAMPHLET 110-31 ¶6-2 (“A weapon may be illegal per se if either international custom or treaty 

has forbidden its use under all circumstances.”). Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).

3 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

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

5 Refer to § 6.7 (Inherently Indiscriminate Weapons).

6 Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines, 

Booby-Traps, and Other Devices).

7 For example, DOD DIRECTIVE 5000.01, The Defense Acquisition System, ¶E1.1.15 (May 12, 2003, certified current 

as of Nov. 20, 2007) (“The acquisition and procurement of DoD weapons and weapon systems shall be consistent 

with all applicable domestic law and treaties and international agreements (for arms control agreements, see DoD 

Directive 2060.1 (Reference (m), customary international law, and the law of armed conflict (also known as the laws 

and customs of war)[)]. An attorney authorized to conduct such legal reviews in the Department shall conduct the 

legal review of the intended acquisition of weapons or weapons systems.”); DOD DIRECTIVE 5000.01, The Defense 

Acquisition System, ¶4.2.10 (Mar. 15, 1996, cancelled by DoD Directive 5000.1 Oct. 23, 2000) (“DoD acquisition 

and procurement of weapons shall be consistent with applicable domestic law and all applicable treaties, customary 

international law, and the law of armed conflict (also known as the laws and customs of war).”); DOD INSTRUCTION

5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16, 1974, cancelled by DoD Instruction 

5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect to the acquisition and procurement of 

weapons, and their intended use in armed conflict, shall be consistent with the obligations assumed by the United

States Government under all applicable treaties, with customary international law, and, in particular, with the laws 

of war.”).

8 For example, DEPARTMENT OF THE ARMY REGULATION 27-53, Review of Legality of Weapons Under International 

Law (Jan. 1, 1979); SECRETARY OF THE NAVY INSTRUCTION 5000.2E, Department of the Navy Implementation and 

Operation of the Defense Acquisition System and the Joint Capabilities Integration and Development System (Sept. 

1, 2011); DEPARTMENT OF THE AIR FORCE INSTRUCTION 51-402, Legal Reviews of Weapons and Cyber Capabilities 

(Jul. 27, 2011).
338

requirement under applicable directives or regulations for a legal review of a weapon or weapon 

system that is to be acquired or procured.

6.2.1 Review of New Types of Weapons. The development of new types of weapons has 

often resulted in public denunciation of their allegedly cruel effects and in attempts to prohibit 

their use in armed conflict.9 This has been true of the crossbow, siege engines for hurling 

projectiles, firearms, gunpowder, bayonets, and other weapons that have since been widely 

recognized as not prohibited by the law of war.

Like other aspects of the law of war, the rules relating to weapons are generally 

characterized as prohibitive law forbidding certain weapons or the use of weapons in certain 

instances rather than positive law authorizing the weapon or its use.

10 The lawfulness of the use 

of a type of weapon does not depend on the presence or absence of authorization, but, on the 

contrary, on whether the weapon is prohibited.

11 Thus, the mere fact that a weapon is novel or 

employs new technology does not mean that the weapon is illegal.12 The law of war does not 

require States to establish a general practice of using a weapon before it is to be regarded as 

legal. Moreover, it would appear absurd to suggest that a new type of weapon should 

automatically be prohibited because there is no State practice supporting such use, or to suggest 

that States must continue using a weapon in each conflict simply to maintain its legality. 

6.2.2 Questions Considered in the Legal Review of Weapons for Consistency With U.S. 

Law of War Obligations. The review of the acquisition or procurement of a weapon for 

consistency with U.S. law of war obligations should consider three questions to determine 

whether the weapon’s acquisition or procurement is prohibited:

• whether the weapon’s intended use is calculated to cause superfluous injury;

13

• whether the weapon is inherently indiscriminate;

14 and 

• whether the weapon falls within a class of weapons that has been specifically 

 9 1976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“The development of new weapons or methods of warfare has often 

resulted in public denunciation of their allegedly cruel effects, and attempts to prohibit their use in warfare. This has 

been true of the crossbow, siege engines for hurling projectiles, firearms, gunpowder, bayonets and other less 

efficient methods of warfare.”).

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

11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 247 (¶52) (“Nor, however, 

is there any principle or rule of international law which would make the legality of the threat or use of nuclear 

weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of 

the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is 

formulated in terms of prohibition.”).

12 1976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“A weapon or method of warfare may not be considered illegal solely 

because it is new or has not previously been used in warfare.”).

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

14 Refer to § 6.7 (Inherently Indiscriminate Weapons).
339

prohibited.

15

If the weapon is not prohibited, the review should also consider whether there are legal 

restrictions on the weapon’s use that are specific to that type of weapon.

16 If any specific 

restrictions apply, then the intended concept of employment of the weapon should be reviewed 

for consistency with those restrictions.

Lastly, it may be appropriate to advise whether other measures should be taken that 

would assist in ensuring compliance with law of war obligations related to the type of weapon

being acquired or procured. For example, it may be appropriate to advise on the need for 

training programs and other practical measures, such as promulgating doctrine and rules of 

engagement related to that type of weapon.17

6.2.3 AP I Requirement for Legal Review of a New Weapon, Means, or Method of 

Warfare. Article 36 of AP I provides: 

In the study, development, acquisition or adoption of a new weapon, means or 

method of warfare, a High Contracting Party is under an obligation to determine 

whether its employment would, in some or all circumstances, be prohibited by 

this Protocol or by any other rule of international law applicable to the High 

Contracting Party.

The DoD policy and practice of conducting legal reviews of weapons preceded this AP I 

provision.

18

6.2.4 Policy and Processes for Review of Applicable Arms Control Obligations. DoD 

has had a separate, but complementary, policy and practice requiring review of its activities (e.g., 

research, development, and testing of weapons) to ensure that these activities are consistent with 

the arms control agreements to which the United States is a Party.19

 15 Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).

16 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

17 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent 

Blindness).

18 For example, DOD INSTRUCTION 5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16, 

1974, cancelled by DoD Instruction 5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect 

to the acquisition and procurement of weapons, and their intended use in armed conflict, shall be consistent with the 

obligations assumed by the United States Government under all applicable treaties, with customary international 

law, and, in particular, with the laws of war.”).

19 DOD DIRECTIVE 2060.1, Implementation of, and Compliance with, Arms Control Agreements, ¶4.6.7 (Jan. 9, 

2001, certified current Nov. 24, 2003) (“For specific DoD-planned activities, [Heads of DoD components are to] 

seek clearance from the USD(AT&L), through the appropriate CRG [Compliance Review Group], on a timely basis, 

before taking any action, including but not limited to research, tests, development, exercises and operations that 

reasonably raises an issue of DoD compliance with an arms control agreement. For other compliance issues 

requiring resolution (such as those arising from an on-site inspection), seek resolution from the USD(AT&L), 

through the appropriate CRG. When there is doubt whether clearance or resolution is necessary, it shall be sought. 

If the issue involves a DoD SAP [Special Access Program], contact the Director of the cognizant DoD SAP Central 
340

6.3 OTHER PRACTICES TO HELP IMPLEMENT LAW OF WAR OBLIGATIONS WITH RESPECT TO 

WEAPONS

A number of practices contribute to the effective implementation of law of war 

obligations with respect to weapons (although these practices are not necessarily required by the 

law of war): (1) using weapons in accordance with their design intent and the doctrine that has 

been promulgated for their use; (2) refraining from modifying weapons without proper 

authorization; (3) refraining from using personal firearms during military operations; and (4) 

refraining from using captured weapons in combat, except on a field-expedient basis.

6.3.1 Using Weapons in Accordance With Their Design Intent and Promulgated 

Doctrine. The use of weapons in accordance with their design intent and the doctrine that has 

been promulgated for their use contributes to compliance with law of war obligations with 

respect to weapons because the legality of the weapon would have been reviewed based on its 

intended use.20 However, the use of weapons outside their design intent does not necessarily 

violate the law of war.

Certain weapon systems may also be subject to law of war restrictions on how they are to 

be used, such as incendiary weapons or mines.21 In such cases, the use of the weapon in 

accordance with doctrine and policy is required by international law because that doctrine and 

policy incorporates certain international obligations.

6.3.1.1 Using Weapons for Purposes Other Than Those for Which a Weapon or 

Tool Is Designed. Although in some cases military orders may restrict the use of certain 

weapons to only certain authorized purposes, there is not a law of war rule that requires that 

weapons or tools only be used for the purposes for which they were designed.

For example, an entrenching tool may be designed for digging fighting positions. 

However, its use as a weapon is not prohibited by the law of war.22 Similarly, it is not prohibited 

to use a laser that is not designed to blind enemy persons as a weapon to blind an attacking 

enemy.23 It also generally would not be prohibited to use a weapon that has been designed to 

destroy enemy material, such as a large-caliber machine gun, against enemy personnel.24

6.3.2 Refraining From Modifying Weapons Without Proper Authorization. For a variety 

of reasons, DoD practice has been not to permit the modification of weapons without proper 

authorization. 

 

Office and the Chairman of the DoD SAP Senior Review Group (SRG). The SRG Chairman will effect 

coordination with the appropriate CRG.”).

20 Refer to § 6.6.3.4 (Superfluous Injury Rule – the Circumstances to Be Assessed and Design Intent); § 6.7.2

(Inherently Indiscriminate Weapons – Circumstances to Be Assessed and Design Intent).

21 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

22 Refer to § 6.5.3.2 (Use of Tools to Stab or Cut).

23 Refer to § 6.15.2.1 (Use of Non-Prohibited Laser Systems to Blind Is Not Absolutely Prohibited).

24 Refer to § 6.5.4.7 (Anti-Personnel Use of Larger (e.g., .50) Caliber Guns or Cannons).
341

In particular, weapons must not be modified in the field for the purposes of aggravating 

the harm inflicted on incapacitated persons.

25 For example, substances designed to inflame 

wounds must not be added to bullets or edged weapons for the purpose of making wounds more 

painful or difficult to treat.

6.3.3 Refraining From the Use of Personal Firearms and Ammunition. DoD personnel 

have normally not been permitted to deploy with, or use, personal firearms or ammunition during 

military operations.26 This practice is based on a variety of reasons, including to help ensure 

compliance with the law of war and U.S. domestic law.

6.3.4 Refraining From the Use of Captured Weapons, Except on a Field-Expedient Basis. 

Under DoD practice, captured or other foreign weapons have been used on a field-expedient 

basis, but otherwise have not been used in combat unless they have undergone the required legal 

review and have been duly issued to personnel. 

Any weapon, ammunition, or munition captured, found, or recovered on the battlefield by 

DoD personnel is the property of the United States and not the individual who recovered it, 

regardless of whether the property is of U.S., enemy, allied, or unknown origin.

27

6.4 PROHIBITED WEAPONS

Two general prohibitions apply to all types of weapons. In addition, certain types of 

weapons are specifically prohibited.

6.4.1 General Prohibitions Applicable to All Types of Weapons. Two fundamental 

prohibitions based in customary international law apply to all weapons. It is prohibited to use:

• weapons calculated to cause superfluous injury;28 or

• inherently indiscriminate weapons.

29 

6.4.2 Specifically Prohibited Types of Weapons. In addition, the use of the following 

types of weapons is prohibited by treaty or customary international law:

 25 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

26 For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities 

for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM) 

Area of Responsibility (AOR), ¶2a (Mar. 13, 2006) (prohibiting “[p]urchase, possession, use or sale of privately 

owned firearms, ammunition, explosives or the introduction of these items into the USCENTCOM AOR.”); General 

Tommy R. Franks, U.S. Central Command, General Order 1A (GO-1A), Prohibited Activities for U.S. Department 

of Defense Personnel Present Within the United States Central Command (USCENTCOM) AOR, ¶2a (Dec. 19, 

2000) (prohibiting “[p]urchase, possession, use or sale of privately owned firearms, ammunition, explosives, or the 

introduction of these items into the USCENTCOM AOR.”).

27 Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

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

29 Refer to § 6.7 (Inherently Indiscriminate Weapons).
342

• poison, poisoned weapons, poisonous gases, and other chemical weapons;30

• biological weapons;

31

• certain environmental modification techniques;

32

• weapons that injure by fragments that are non-detectable by X-rays;

33

• certain types of mines, booby-traps, and other devices;34 and

• blinding lasers.

35

6.4.3 Relationship Between the Specific Prohibitions and the General Prohibitions. 

When a specific prohibition on a weapon is viewed as reflecting customary international law, 

such prohibition may sometimes be viewed as, in effect, a declaration that the weapon is 

prohibited as one calculated to cause superfluous injury or as one that is inherently 

indiscriminate.

36

However, a specific treaty prohibition on a weapon does not necessarily reflect a State 

Party’s view that the weapon is prohibited by customary international law (e.g., that the weapon 

is calculated to cause superfluous injury or is inherently indiscriminate). For example, the mere 

prohibition or restriction of a weapon in the CCW or its Protocols does not necessarily reflect the 

conclusion that the weapon is calculated to cause superfluous injury or is inherently 

indiscriminate.37

6.5 LAWFUL WEAPONS

Apart from the categories of weapons described in § 6.4 (Prohibited Weapons), all other 

types of weapons are lawful for use by the U.S. armed forces; that is, they are not illegal per se. 

In other words, other types of weapons are prohibited only to the extent that they fall under the 

categories of weapons described in § 6.4 (Prohibited Weapons). For example, a landmine is not 

 30 Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).

31 Refer to § 6.9 (Biological Weapons).

32 Refer to § 6.10 (Certain Environmental Modification Techniques).

33 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

34 Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).

35 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

36 J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee on 

Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“The thrust of the 

phrase ‘harmless to man’ made part of the discussion of the rules draws attention to Article 23(e) of the Hague 

Regulations of 1907, wherein combatants are forbidden to employ weapons ‘calculated to cause unnecessary 

suffering.’ However, the provision in Hague Regulation Article 23(a) concerning the prohibition against using 

poison or poisoned weapons is a special case of this rule since it, in effect, declares that any use of a lethal substance 

against human beings is, per se, a use which is calculated to cause unnecessary suffering.”).

37 Refer to § 19.21.1.3 (CCW and Customary International Law).
343

necessarily a legally prohibited weapon; it is only prohibited if it falls under one of the specific 

classes of prohibited mines listed in § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and 

Other Devices).

The rules that apply to the use of all weapons are addressed in § 5.4.2 (Overview of Rules 

in Conducting Attacks). 

6.5.1 Certain Types of Weapons With Specific Rules on Use. Certain types of weapons, 

however, are subject to specific rules that apply to their use by the U.S. armed forces. These 

rules may reflect U.S. obligations under international law or national policy. These weapons 

include:

• mines, booby-traps, and other devices (except certain specific classes of prohibited 

mines, booby-traps, and other devices);

38

• cluster munitions;39

• incendiary weapons;40

• laser weapons (except blinding lasers);

41

• riot control agents;42

• herbicides;43

• nuclear weapons;

44 and

• explosive ordnance.45

6.5.2 Other Examples of Lawful Weapons. In particular, aside from the rules prohibiting 

weapons calculated to cause superfluous injury and inherently indiscriminate weapons,46 there 

are no law of war rules specifically prohibiting or restricting the following types of weapons by 

the U.S. armed forces:

 38 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

39 Refer to § 6.13 (Cluster Munitions).

40 Refer to § 6.14 (Incendiary Weapons).

41 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent 

Blindness).

42 Refer to § 6.16 (Riot Control Agents).

43 Refer to § 6.17 (Herbicides).

44 Refer to § 6.18 (Nuclear Weapons).

45 Refer to § 6.19 (Explosive Ordnance).

46 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury); § 6.7 (Inherently Indiscriminate Weapons).
344

• edged or pointed weapons, including weapons with serrated edges or entrenching tools

used as weapons;

47

• small arms, cannons, and other guns, including shotguns, exploding bullets, expanding

bullets, suppressors, or large-caliber guns;48

• blast weapons;49

• fragmentation weapons;50

• depleted uranium munitions;51

• remotely piloted aircraft;52

• autonomy in weapons systems;53 and

• non-lethal weapons.54

6.5.3 Edged or Pointed Weapons. Stabbing or cutting weapons (e.g., knives, bayonets, 

swords, lances, and tomahawks) are not specifically prohibited or restricted by the law of war. 

Like other weapons, however, they must not be calculated to cause superfluous injury.55 Thus, it 

is prohibited to modify the weapon for the purpose of making wounds more difficult to treat, 

such as by adding a barbed head to a lance or by applying to the blade or point a poison or 

substance that is designed to inflame wounds.56

6.5.3.1 Serrated Edges. The law of war does not prohibit the use of serratededged weapons by military forces, including against enemy personnel. 

Many bayonets or knives have a serrated edge (a formation resembling the toothed edge 

of a saw). Provided that the design intent of the serrated edge is not to aggravate suffering

unnecessarily, such as by making the wound more difficult to treat, the serrated edge is not 

prohibited. For example, a serrated edge may improve the capabilities of the blade as a multipurpose field utility tool, rather than be intended to increase the pain and suffering of enemy 

personnel injured by the blade.

 47 Refer to § 6.5.3 (Edged or Pointed Weapons).

48 Refer to § 6.5.4 (Small Arms, Cannons, and Other Guns).

49 Refer to § 6.5.5 (Blast Weapons).

50 Refer to § 6.5.6 (Fragmentation Weapons).

51 Refer to § 6.5.7 (Depleted Uranium Munitions).

52 Refer to § 6.5.8 (Remotely Piloted Aircraft).

53 Refer to § 6.5.9 (Autonomy in Weapon Systems).

54 Refer to § 6.5.10 (Non-Lethal (Less-Lethal) Weapons).

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

56 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).
345

6.5.3.2 Use of Tools to Stab or Cut. Edged tools, such as over-size knives, 

machetes, and entrenching tools, have often been employed both as tools and as weapons. Such 

tools are not prohibited by the law of war, and the law of war does not prohibit the use of tools as 

weapons to bludgeon, stab, or cut.

6.5.4 Small Arms, Cannons, and Other Guns. Small arms, cannons, and other guns are 

not specifically restricted or prohibited by the law of war. In particular, there are no specific 

rules against shotguns, exploding bullets, expanding bullets, suppressors, or anti-personnel use of 

larger caliber guns or cannons.

6.5.4.1 Small Arms, Cannons, and Other Guns – Other Rules on Weapons, as 

Applicable. Although no law of war rule regulates small arms, cannons, and other guns as a 

specific category, these weapons are subject to other law of war rules on weapons, as applicable. 

For example, the use of ammunition, the primary effect of which is to injure by fragments 

that in the human body escape detection by X-rays, is prohibited.

57 In addition, poison must not 

be added to bullets or other projectiles.58 As with other weapons, small arms, cannons, and other 

guns must not be calculated to cause superfluous injury.59 For example, modifying guns or 

ammunition for the purpose of aggravating the harm inflicted upon incapacitated persons would 

be prohibited (e.g., adding a substance to bullets with the intent to inflame wounds).60

Guns that fall under the definition of incendiary weapons would be regulated as 

incendiary weapons.61 However, tracer ammunition is not an “incendiary weapon” because any

incendiary effects are incidental.62 In addition, even certain projectiles designed to have 

incendiary effects that are combined with other effects (e.g., penetration, blast, or fragmentation 

effects) would not be regulated as incendiary weapons.63

6.5.4.2 Shotguns. There is no law of war prohibition on the use (including antipersonnel use) of the shotgun in combat.64 The fact that multiple fragments are used in many 

 57 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

58 Refer to § 6.8.1 (Poison and Poisoned Weapons).

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

60 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

61 Refer to § 6.14 (Incendiary Weapons).

62 Refer to § 6.14.1.3 (Excluded From the Definition of Incendiary Weapons – Weapons With Incidental Incendiary 

Effects).

63 Refer to § 6.14.1.4 (Excluded From the Definition of Incendiary Weapons – Certain Combined-Effects 

Munitions).

64 For example, The Secretary of State to the Swiss Chargé (Oderlin) (Sept. 28, 1918), reprinted in PAPERS 

RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1918, SUPPLEMENT 2, THE WORLD WAR 785-86 

(1933) (“In reply to the German protest, the Government of the United States has to say that the provision of the 

Hague convention [Hague IV Reg. art. 23(e)], cited in the protest, does not in its opinion forbid the use of this kind 

of weapon. Moreover, in view of the history of the shotgun as a weapon of warfare, and in view of the well-known 

effects of its present use, and in the light of a comparison of it with other weapons approved in warfare, the shotgun 

now in use by the American Army cannot be the subject of legitimate or reasonable protest.”).
346

shotgun rounds to wound does not prohibit their use.65

Shotguns have been used as anti-personnel weapons for close-combat, for guarding 

enemy prisoners of war, and for anti-materiel purposes during armed conflict for many years.

66 

Shotgun munitions may include, for example, buckshot ammunition, flechette ammunition, nonlethal projectiles, and breaching rounds.

Breaching rounds are an anti-materiel munition designed to dislodge door hinges or door 

locks and are used to enable military forces to enter a room or building. As with other weapons 

designed for anti-material use, the use of an anti-material round against enemy personnel is not 

prohibited.

67 For example, a breaching round may be used against an enemy combatant who 

opens the door or appears in the doorway just as the door is about to be breached.

6.5.4.3 Exploding Bullets. The use of exploding bullets, including use against 

enemy personnel, is not prohibited by the law of war. For example, explosive bullets have been 

lawfully used during armed conflict, against both enemy material and enemy combatants.68

Exploding bullets, like all weapons, however, are subject to the superfluous injury rule.69 

For example, without a valid military reason, bullets that are specifically designed to explode 

within the human body would be prohibited, since a non-exploding bullet would be just as 

effective and efficient at incapacitating an enemy combatant.70

On the other hand, an explosive bullet that was designed to explode in order to increase 

the probability of striking an enemy combatant or to strike an enemy combatant behind cover 

 65 Refer to § 6.5.6 (Fragmentation Weapons).

66 For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General, 

U.S. Army, Joint Service Combat Shotgun Program, THE ARMY LAWYER 16, 17-18 (Oct. 1997) (“The combat 

shotgun or military rifle with a shotgun-type munition continued to be used in the United States. In the American 

Revolution, General George Washington encouraged his troops to load their muskets with ‘buck and ball,’ a load 

consisting of one standard musket ball and three to six buckshot, in order to increase the probability of achieving a 

hit. ... United States Air Force security police employed shotguns in base security operations in Saudi Arabia during 

Operations Desert Shield and Desert Storm (1990-91) to protect them from attack by terrorists or Iraqi military 

units, and some personnel in British armored units were armed with shotguns as individual weapons during that 

conflict.”).

67 Refer to § 6.3.1.1 (Using Weapons for Purposes Other Than Those for Which a Weapon or Tool Is Designed).

68 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 213 (“In the second world war projectiles of the kind 

referred to [in the 1868 St. Petersburg Declaration] were freely used by all the belligerent air forces. The explosive 

bullet gave place to the small cannon shell, but the latter, fired normally from a gun of 20 mm. bore, was equally 

within the prohibited limit, since its weight was only 130 grammes as compared with the 400 grammes specified in 

the Declaration. Cannon guns of 40 mm. were also mounted in aircraft and the projectiles were outside the ban. 

The incendiary bullets used were usually fired from machine guns with bores of .303 inch and .5 inch.”).

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

70 For example, ULYSSES S. GRANT, I PERSONAL MEMOIRS OF U.S. GRANT 538 (1892) (“The enemy used in their 

defence explosive musket-balls, no doubt thinking that, bursting over our men in the trenches, they would do some 

execution; but I do not remember a single case where a man was injured by a piece of one of these shells. When 

they were hit and the ball exploded, the wound was terrible. In these cases a solid ball would have hit as well. Their 

use is barbarous, because they produce increased suffering without any corresponding advantage to those using 

them.”).
347

would not be prohibited.71 Similarly, bullets that explode in order to neutralize enemy material 

more effectively are not prohibited, and there is no objection to using these bullets also against 

enemy combatants.72

The United States is not a Party to the 1868 St. Petersburg Declaration on Exploding 

Bullets, and its prohibition on the use of certain projectiles does not reflect customary 

international law.73

6.5.4.4 Expanding Bullets. The law of war does not prohibit the use of bullets 

that expand or flatten easily in the human body. Like other weapons, such bullets are only 

prohibited if they are calculated to cause superfluous injury.

74 The U.S. armed forces have used 

expanding bullets in various counterterrorism and hostage rescue operations, some of which have 

been conducted in the context of armed conflict.

The 1899 Declaration on Expanding Bullets prohibits the use of expanding bullets in 

armed conflicts in which all States that are parties to the conflict are also Party to the 1899 

Declaration on Expanding Bullets.

75 The United States is not a Party to the 1899 Declaration on 

Expanding Bullets, in part because evidence was not presented at the diplomatic conference that 

expanding bullets produced unnecessarily severe or cruel wounds.

76

 71 For example, C. Todd Lopez, Army wants 36 more “Punisher” weapons in 2012, ARMY NEWS SERVICE, Feb. 3, 

2011 (“The XM25 allows Soldiers to engage defilade targets -- those behind a barrier, protected from oncoming 

weapons fire. The XM25 measures the distance to the enemy’s protective barrier, and can then program the round 

to detonate a user-adjustable distance past that -- allowing Soldiers to put an air-bursting round directly above the 

enemy’s head, inside their protected area. ... The five prototype weapons entered theater in November, and were 

first used in combat Dec. 3.”).

72 U.S. RESPONSE TO ICRC CIHL STUDY 524 (“States widely have employed bullets that may detonate on impact 

with materiel for both anti-materiel and anti-personnel purposes. Such ammunition was in common use by all States 

that participated in World War II, and in conflicts thereafter including in widespread aircraft strafing of enemy 

forces, a practice common to every conflict since World War I in which aircraft were employed.”). See 

also Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, 

Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1, 20-21 (1938) (“In the form in which the 

proposal was first brought forward its provisions were limited to a stipulation that the use of tracer bullets against 

aircraft generally was not prohibited. Various criticisms were, however, made about the proposed text, chiefly 

founded on the impracticability for an airman while in flight to change the ammunition which he is using in the 

machine-gun in his aircraft. He cannot employ different bullets in accordance with the target at which he is aiming, 

one sort of ammunition for other aircraft and another sort for land forces by whom he may be attacked. The 

Commission, therefore, came to the conclusion that the most satisfactory solution of the problem would be to state 

specifically that the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited.”).

73 Refer to § 19.6 (1868 St. Petersburg Declaration).

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

75 Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).

76 William Crozier, Captain of Ordnance, U.S. Army, Report of Captain Crozier to the American Delegation to the 

First Hague Conference, Regarding the Work of the First Committee of the Conference and its Subcommittee, 

reprinted in INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIR 

OFFICIAL REPORTS 34 (1916) (noting the objection of the U.S. representative that the 1899 Declaration “condemned 

by designed implication, without even the introduction of any evidence against it, the use of a bullet actually 

employed by the army of a civilized nation”).
348

In 2013, a review conducted by DoD in coordination with the Department of State

reconfirmed that the prohibition in the 1899 Declaration on Expanding Bullets did not reflect 

customary international law.77 The findings of this review were consistent with the longstanding 

position of the United States not to become a Party to the 1899 Declaration and not to apply a 

distinct prohibition against expanding bullets, but instead to regard expanding bullets as 

prohibited only to the extent that such bullets are calculated to cause unnecessary suffering.78

In the past, expanding bullets have been viewed as ineffective for military and technical 

reasons.

79 Non-expanding bullets that were widely used in armed conflict produced wounds 

comparable to, or more severe than, wounds produced by expanding bullets.80 In addition, 

 77 Portions of the analysis in this review are presented in the following paragraphs.

78 William Crozier, Captain of Ordnance, U.S. Army, Report of Captain Crozier to the American Delegation to the 

First Hague Conference, Regarding the Work of the First Committee of the Conference and its Subcommittee, 

reprinted in INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIR 

OFFICIAL REPORTS 33-34 (1916); JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: 

III THE CONFERENCE OF 1907 15 (1921) (Brigadier General George B. Davis recalling the U.S. delegation’s 

proposal in 1907 to amend the 1899 Declaration to prohibit ‘bullets that inflict unnecessarily cruel wounds’); 1914

RULES OF LAND WARFARE ¶3 note 2 (explaining that the 1899 Declaration “has never been ratified by the United 

States but see paragraph ‘e,’ Article XXIII, convention IV, Hague Rules, 1907, infra, par., 184”); U.S. ARMY 

ORDNANCE, HISTORY OF SMALL-ARMS AMMUNITION, NO. 1940, 15 (1920) (“The Judge Advocate General’s Office 

has given the opinion that the armor-piercing ammunition [with a soft lead nose that mushrooms] is a lawful 

weapon”); 1934 RULES OF LAND WARFARE ¶34 (1934) (giving no separate rule against expanding bullets, but 

providing that certain types of bullets may be prohibited under the rule against weapons calculated to cause 

unnecessary suffering); 1940 RULES OF LAND WARFARE ¶34 (1940) (same); 1956 FM 27-10 (Change No. 1 1976) 

¶34(b) (same); Use of Expanding Ammunition by U.S. Military Forces in Counterterrorist Incidents, 45 (reiterating 

that the United States is not a party to the 1899 Hague Declaration on expanding bullets but is a party to the Hague 

Convention IV, which includes the prohibition against weapons calculated to cause unnecessary suffering); W. Hays 

Parks for The Judge Advocate General, U.S. Army, Memorandum of Law—Sniper Use of Open-Tip Ammunition, 

Oct. 12, 1990, reprinted in THE ARMY LAWYER 86, 87 (Feb. 1991) (“The United States is not a party to [the 1899 

Hague Declaration], but United States officials over the years have taken the position that the armed forces of the 

United States will adhere to its terms to the extent that its application is consistent with the object and purpose of 

article 23e of the Annex to Hague Convention IV”); W. Hays Parks, Joint Service Combat Shotgun Program, THE 

ARMY LAWYER 16, 22 (Oct. 1997) (same).

79 See, e.g., Alfons Vanheusden, W. Hays Parks, and William H. Boothby, The Use of Expanding Bullets in Military 

Operations: Examining the Kampala Consensus, 50 MILITARY LAW AND LAW OF WAR REVIEW 535, 537 (2011) 

(“[L]ack of use of expanding ammunition by armed forces could be attributed equally to the increased risk of 

weapon malfunction (specifically, failure to feed) through its use, particularly in machineguns”); P. R. COURTNEYGREEN, AMMUNITION FOR THE LAND BATTLE 33 (1991) (noting that expanding bullets “may not cause a sufficiently 

incapacitating wound, particularly in a military context,”); WILLY LEY, SHELLS AND SHOOTING 39-41 (1942) 

(“[D]umdum bullets find too much air resistance. Roughly speaking, their power of penetration is only one-quarter 

that of other bullets, and the ‘dumdum effect’ does not take place if the velocity is low. Ranges of more than 600 

yards ruin the ‘dumdum effect,’ and over 1200 yards the bullet may be so slow that it cannot penetrate a heavy 

uniform with overcoat.”); Charles Frederick Carter, “Atrocities” in War, Nov. 1914, 29 THE WORLD’S WORK 65, 66 

(1915) (“But since the first Hague Conference no nation has used dum-dum bullets for a compelling reason that has 

nothing to do with the Hague nor with considerations of humanity. Experience has taught that when a modern high 

powered rifle, such as is used in all armies to-day, is hot and dirty, conditions common to battle, the dum-dum bullet 

is liable to ‘strip’; that is, the leaden core is apt to squirt out, leaving the jacket in the barrel, so that when the next 

shot is fired the gun blows back, or bursts.”).

80 See, e.g., High-speed Bullets and Dumdums, 79 SCIENTIFIC AMERICAN SUPPLEMENT NO. 2053, 304 (May 8, 1915) 

(“But the modern spitzer, at its still higher velocities and its unsteady performance in tissue, gives results that are 

more frightful than any dumdum.”); Medical News: The Explosive Effect of Bullets, 46 JOURNAL OF THE AMERICAN 
349

expanding bullets are widely used by law enforcement agencies today, which also supports the 

conclusion that States do not regard such bullets are inherently inhumane or needlessly cruel.81

6.5.4.5 Rome Statute of the International Criminal Court War Crime Regarding

the Use of Expanding Bullets. The war crime of using expanding bullets that is reflected in the 

Rome Statute of the International Criminal Court has been interpreted by States only to 

criminalize the use of expanding bullets that are also calculated to cause superfluous injury and 

not to create or reflect a prohibition against expanding bullets as such.

The Rome Statute of the International Criminal Court lists as a war crime “[e]mploying 

bullets which expand or flatten easily in the human body, such as bullets with a hard envelope 

which does not entirely cover the core or is pierced with incisions.”82 

Elements of Crimes have been adopted by the Assembly of States Parties to the Rome 

Statute to assist the ICC in its interpretation and application of the Article 8 of the Rome Statute, 

which includes this war crime.83 The Elements of Crimes explain that this rule is not violated 

unless, inter alia, “[t]he perpetrator was aware that the nature of the bullets was such that their 

employment would uselessly aggravate suffering or the wounding effect.”84 When adopting an 

amendment at the Review Conference in 2010 that would apply this crime to non-international 

armed conflict, Parties to the Rome Statute reiterated this understanding and explained that “the 

crime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or 

the wounding effect upon the target of such bullets, as reflected in customary international 

law.”85

 

MEDICAL ASSOCIATION 66 (Jan. 2, 1915) (“[T]he instability of flight and tendency of the [pointed modern] bullet to 

revolve around a transverse axis give it a capacity for wounding the soft part greater than that of any expanding or 

soft-nosed bullet.”); George B. Davis, The Amelioration of the Rules of War on Land, 2 AJIL 63, 75-76 (1908) 

(“Small-arm projectiles having the mechanical construction, or causing the wounds which are particularly described 

in the declaration, have ceased to be manufactured; and the forms now in use, some of which inflict wounds of great 

and unnecessary severity, are no longer within the narrow and illogical terms of the prohibition. Had the Crozier 

amendment been adopted, it is highly probable that a type of small-arm projectile would have been developed which 

would have met all reasonable requirements in respect to velocity, range, and flatness of trajectory, without the 

needless and inhuman laceration of tissues which attend those now in use, or which are proposed for adoption in the 

armies of some civilized powers.”).

81 For example, NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 417 and note 103 (2009) (“A model 

example in this respect [i.e., a situation governed by the law enforcement paradigm] is the case of Ewald K., which 

occurred in Chur, Switzerland, in 2000. In this case, although there was no risk to innocent bystanders, Swiss Police 

snipers deliberately used expanding rifle bullets in order to ensure that Ewald K. had no opportunity to return fire, 

but would be killed instantly. ... This motivation was accepted by the Cantonal Court as sufficient to justify the use 

of expanding rifle bullets. See Cantonal Court Grisons, Ewald K. Case, Deliberation 13(d).”).

82 ROME STATUTE art. 8(2)(b)(xix).

83 ROME STATUTE art. 9 (“1. Elements of Crimes shall assist the Court in the interpretation and application of articles 

6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.”).

84 ROME STATUTE, ELEMENTS OF CRIMES, art. 8(2)(b)(xix), Official Records of the Assembly of States Parties to the 

Rome Statute of the International Criminal Court, First session, New York, ICC-ASP/1/3, 112, 146 (Sept. 3-10, 

2002).

85 Resolution RC/Res. 5, First ICC Review Conference: Resolutions and Declarations, 49 INTERNATIONAL LEGAL 

MATERIALS 1328, 1333 (2010).
350

Thus, this crime only applies to expanding bullets that are also calculated to cause 

superfluous injury and does not create or reflect a prohibition against expanding bullets as 

such.86

6.5.4.6 Suppressors (Silencers). A suppressor or silencer is a device that is 

intended to reduce or disguise the sound of a firearm’s discharge without affecting its ability to 

fire. There is no law of war prohibition on the use of a suppressor, and silenced weapons have 

been a part of the inventory of military forces and law enforcement agencies in many States, 

including the United States.

87

6.5.4.7 Anti-Personnel Use of Larger (e.g., .50) Caliber Guns or Cannons. The 

law of war does not prohibit the use of .50 caliber machineguns or other large-caliber guns 

against enemy personnel.88 Such use has been widespread and long-standing.89

Similarly, cannons and other artillery (e.g., the M242 25mm Bushmaster in the Bradley 

Fighting Vehicle or the 30mm GAU-8 in the A-10 aircraft) have often been used during armed 

conflict against enemy material and may also be used against enemy combatants. Although use 

against individual enemy combatants may not necessarily reflect the most efficient use of 

resources, such use is not prohibited by the law of war.

6.5.5 Blast Weapons. Blast weapons rely upon the pressure wave caused by an 

explosion, rather than fragmentation, to cause damage to objects and injury to enemy military 

personnel. Inflicting blast injury is not prohibited by the law of war.90 

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

87 W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General, U.S. Army, 

Memorandum re: Legality of Silencers/Suppressors 3 (Jun. 9, 1995) (“Today, silenced weapons are a standard part 

of the inventory of military forces and law enforcement agencies throughout the world. For example, the Heckler 

and Koch MP5SD, an integrally suppressed 9x19mm Parabellum submachinegun, is in use by law enforcement and 

military forces in more than forty nations; in the United States, local, state and federal law enforcement agencies and 

each of the four armed services are equipped with the MP5SD. The H&K MP5SD was employed by U.S. Army, 

Navy and Marine Corps units during the 1991 liberation of Kuwait.”).

88 U.S. Army, Office of the Judge Advocate General, International Law Division, Opinion DAJA-IA 1986/8044, 

Use of the .50-Caliber Machinegun, Nov. 21, 1986, reprinted in THE ARMY LAWYER 36, 37 (Apr. 1987) 

(“Employment of the .50 caliber machinegun or other .50 caliber weapons against enemy personnel does not violate 

the law of war.”).

89 U.S. Army, Office of the Judge Advocate General, International Law Division, Opinion DAJA-IA 1986/8044, 

Use of the .50-Caliber Machinegun, Nov. 21, 1986, reprinted in THE ARMY LAWYER 36 (Apr. 1987) (“Largercaliber weapons have remained in the inventories of virtually every nation. For example, the Soviet Union mounts 

the NSV .50 caliber machinegun on its tanks; it can be removed and employed on a tripod in a ground mode. 

Nations generally employ .50-caliber machineguns as antiaircraft, antimaterial, and antipersonnel weapons. On 

occasion, they have been employed specifically as long-range sniper weapons. The Soviet PTRD was a 14.5mm 

(.58 caliber) bolt-action, single-shot antitank weapon employed during World War II; because of its long-range 

accuracy, it was frequently employed as a sniper weapon against German troops. Similarly, the Browning 

Machinegun Caliber .50 HB, M2 currently in use by U.S. forces, was employed as a single-shot sniper rifle during 

the Vietnam War.”).

90 W. Hays Parks, Special Assistant to The Judge Advocate General, U.S. Army, Memorandum re: 40mm 

Thermobaric Munition; Legal Review, Apr. 2, 2003 (“Blast is and has been an inherent part of high explosive 

munitions, and combatants have died solely from the blast effects of conventional HE munitions. Pioneers, sappers 
351

6.5.6 Fragmentation Weapons. Some munitions operate by projecting a large number of 

fragments or projectiles on detonation. Such weapons may include fragmenting artillery shells, 

the Claymore munition, “grape shot,” grenades, flechettes,91 and shotgun buckshot.

92

The fragments or projectiles in such weapons must be detectable by X-rays.

93 However, 

the use of multiple fragments or projectiles to injure enemy personnel is not prohibited by the 

law of war.94 The fact that enemy military personnel in the path of fragment dispersion are 

likely to suffer multiple wounds does not render the weapon unlawful. Multiple fragments may 

be necessary to increase the probability of incapacitating enemy combatants.

6.5.7 Depleted Uranium Munitions. Depleted uranium (DU) is used in some munitions 

because its density and physical properties create a particularly effective penetrating combination 

to defeat enemy armored vehicles, including tanks.

95

States have regarded the use of depleted uranium weapons as consistent with their law of 

war obligations.96

 

and combat engineers engaged in tunneling operations under enemy lines in the American Civil War, World War I, 

and Korea employed substantial amounts of high explosives. Enemy personnel above the detonation became blast 

casualties. Artillery barrages generally will produce a number of enemy casualties, including fatalities, from blast 

alone, as will heavy aerial bombardment.”).

91 See SPAIGHT, AIR POWER AND WAR RIGHTS 201 (1947) (“Reference has been made above to flêchettes and it is 

desirable to explain what these were. They were small arrows of steel which were dropped in bundles of fifty at a 

time from aeroplanes upon ground targets or observation balloons. They were used on both the Allies’ and the 

German sides, but were originally an Italian invention, having been first used in Tripoli in 1911-12.”). See also W. 

Hays Parks, Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 

55, 81 (2005) (“Flechettes are steel darts of varying sizes fired at high velocities in large quantities in munitions as 

small as a shotgun shell to as large as a 90mm tank round, 105mm artillery round and 106mm recoilless rifle round, 

enabling a uniform dispersion of flechettes to increase the probability of wounding enemy combatants within their 

path. These munitions had proved particularly effective as a close-range final defensive fire against massed 

attacking forces.”).

92 Refer to § 6.5.4.2 (Shotguns).

93 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

94 1976 AIR FORCE PAMPHLET 110-31 ¶6-6b (“Where a military purpose is apparent and suffering is incidental to the 

military necessities involved, the use of explosives and fragmentation particles such as those contained in 

projectiles, mines, bombs, rockets, missiles and hand grenades is not prohibited under the law of armed conflict. 

This result is confirmed by an extensive practice of nations in using such weapons during periods of armed conflict 

in the 20th Century and previously.”).

95 Col. James Naughton, Army Materiel Command, Special Department of Defense Briefing: Update on Depleted 

Uranium (Mar. 14, 2003) (“[T]he depleted uranium is a material that has a characteristic that allows it to sharpen 

itself as it penetrates the target. The uranium shreds off the sides of the penetrator instead of squashing or 

mushrooming. If you look at the lower picture, which is what happens with tungsten, the tungsten mushrooms. The 

result is the depleted uranium will penetrate more armor of a given character and type at a given range than tungsten 

will, no matter how we design the penetrators.”).

96 For example, DAILY HANSARD, HOUSE OF COMMONS DEBATES, Jul. 12, 2012, Written Ministerial Statements, 

Column 40WS-41WS (“The Minister for the Armed Forces (Nick Harvey): I informed the House on 31 October 

2011 that I had commissioned officials to undertake a legal weapons review of our depleted uranium (DU) antiarmour tank rounds, known as Charm-3. ... The review is now complete and has concluded that Charm-3 is capable 

of being used lawfully by UK armed forces in an international armed conflict. ... The use of DU in weapon systems 
352

The U.S. armed forces have fielded and used depleted uranium munitions. Extensive 

efforts have been made to study whether there are harmful health effects from exposure to 

depleted uranium from weapons that use it, but no such effects have been found.97 

6.5.8 Remotely Piloted Aircraft. There is no prohibition in the law of war on the use of 

remotely piloted aircraft (also called “unmanned aerial vehicles”).

98 Such weapons may offer 

certain advantages over other weapons systems.99

 

is not prohibited by any treaty provision. There have been extensive scientifically based studies, undertaken by the 

World Health Organisation in relation to the long-term environmental and other health effects allegedly attributable 

to the use of DU munitions. In the light of the reassuring conclusions drawn by such scientific studies, and noting 

the continuing military imperative underpinning retention of Charm-3 as a weapon system, it was concluded that use 

of Charm-3 does not offend the principle prohibiting superfluous injury or unnecessary suffering in armed conflict. 

... Finally, it was concluded that DU continues to be a material of choice used by states in the manufacture of antiarmour munitions. To date no inter-state consensus has emerged that DU munitions should be banned and the 

available scientific evidence (developed in the aftermath of the Gulf war in 1991) continues to support the view held 

by the UK that such munitions can be retained for the limited role envisaged for their employment. The UK policy 

remains that DU can be used within weapons; it is not prohibited under current or likely future international 

agreements.”).

97 Ambassador Robert Wood, United States Mission to the United Nations, Remarks at the Sixty-Ninth UNGA First 

Committee Cluster Five: Explanation of Vote Before the Vote on L.43, Agenda Item 96 (e) “Effects of the use of 

armaments and ammunitions containing depleted uranium,” Oct. 31, 2014 (“I am speaking on behalf of France, the 

United Kingdom and the United States to explain our negative vote on draft resolution L.43 ‘Effects of the use of 

armaments and ammunitions containing depleted uranium’. Mr. Chairman, this is not a new issue. The 

environmental and long-term health effects of the use of depleted uranium munitions have been thoroughly 

investigated by the World Health Organization, the United Nations Environmental Program, the International 

Atomic Energy Agency, NATO, the Centres for Disease Control, the European Commission, and others. None of 

these inquiries has documented long-term environmental or health effects attributable to use of these munitions.”); 

Dr. Michael Kilpatrick, DoD Deployment Health Support Directorate, Special Department of Defense Briefing: 

Update on Depleted Uranium (Mar. 14, 2003) (“We looked at some 90 Gulf War veterans who were in or on an 

armored vehicle when it was struck by depleted uranium in friendly fire. And those individuals have been followed 

on an annual basis now we are talking 12 years post-incident. And we do not see any kidney damage in those 

individuals ... . They were also followed for other medical problems, and ... they’ve had no other medical 

consequences of that depleted uranium exposure. Now, some of these individuals had amputations, were burned, 

had deep wounds, so that these individuals, some of them of course do have medical problems. But as far as a 

consequence of the depleted uranium exposure, we are not seeing anything related to that either from a chemical or 

radiological effect.”).

98 John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson 

Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 585 (“As a matter of international law, the United States is 

in an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may 

also use force consistent with our inherent right of national self-defense. There is nothing in international law that 

bans the use of remotely piloted aircraft for this purpose... .”); Harold Hongju Koh, Legal Adviser, Department of 

State, Address at the Annual Meeting of the American Society of International Law: The Obama Administration and 

International Law, Mar. 25, 2010, 2010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 715, 718-19 

(“[T]here is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed 

conflict -- such as pilotless aircraft ... .”).

99 John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson 

Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 586 (“Targeted strikes are wise. Remotely piloted aircraft 

in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most 

treacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise 
353

6.5.9 Autonomy in Weapon Systems. The law of war does not prohibit the use of 

autonomy in weapon systems. DoD has developed policy on the use of autonomy in weapon 

systems.100

6.5.9.1 Description and Examples of the Use of Autonomy in Weapon Systems. 

Some weapons may have autonomous functions. For example, mines may be regarded as 

rudimentary autonomous weapons because they are designed to explode by the presence, 

proximity, or contact of a person or vehicle, rather than by the decision of the operator.101 Other 

weapons may have more sophisticated autonomous functions and may be designed such that the 

weapon is able to select targets or to engage targets automatically after being activated by the 

user. For example, the United States has used weapon systems for local defense with 

autonomous capabilities designed to counter time-critical or saturation attacks. These weapon 

systems have included the Aegis ship defense system and the Counter-Rocket, Artillery, and 

Mortar (C-RAM) system.

6.5.9.2 No Law of War Prohibition on the Use of Autonomy in Weapon Systems. 

The law of war does not specifically prohibit or restrict the use of autonomy to aid in the 

operation of weapons. 

In fact, in many cases, the use of autonomy could enhance the way law of war principles 

are implemented in military operations. For example, some munitions have homing functions 

that enable the user to strike military objectives with greater discrimination and less risk of 

incidental harm. As another example, some munitions have mechanisms to self-deactivate or to 

self-destruct, which helps reduce the risk they may pose generally to the civilian population or 

after the munitions have served their military purpose.

102

Although no law of war rule specifically restricts the use of autonomy in weapon 

systems, other rules may apply to weapons with autonomous functions. For example, to the 

extent a weapon system with autonomous functions falls within the definition of a “mine” in the 

CCW Amended Mines Protocol, it would be regulated as such.103 In addition, the general rules 

applicable to all weapons would apply to weapons with autonomous functions. For example, 

autonomous weapon systems must not be calculated to cause superfluous injury or be inherently 

indiscriminate.104

6.5.9.3 Law of War Obligations of Distinction and Proportionality Apply to 

Persons Rather Than the Weapons Themselves. The law of war rules on conducting attacks 

 

choice because of time, when windows of opportunity can close quickly and there may be just minutes to act. They

can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger 

altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, 

especially considered against massive ordnance that can cause injury and death far beyond its intended target.”).

100 Refer to § 6.5.9.4 (DoD Policy on Autonomy in Weapon Systems).

101 Refer to § 6.12.1.2 (Designed to Be Exploded by the Presence, Proximity, or Contact of a Person or Vehicle).

102 Refer to § 6.12.1.6 (Mines With Compliant Self-Destruction and Self-Deactivation (SD/SDA) Mechanisms).

103 Refer to § 6.12.1 (Definition of Mine).

104 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury); § 6.7 (Inherently Indiscriminate Weapons).
354

(such as the rules relating to discrimination and proportionality) impose obligations on persons. 

These rules do not impose obligations on the weapons themselves; of course, an inanimate object 

could not assume an “obligation” in any event. Thus, it is not the case that the law of war 

requires that a weapon determine whether its target is a military objective. Similarly, the law of 

war does not require that a weapon make other legal determinations such as whether an attack 

may be expected to result in incidental harm that is excessive in relation to the concrete and 

direct military advantage expected to be gained. The law of war does not require weapons to 

make legal determinations, even if the weapon (e.g., through computers, software, and sensors) 

may be characterized as capable of making factual determinations, such as whether to fire the 

weapon or to select and engage a target. Rudimentary autonomous weapons, such as mines, 

have been employed for many years, and there has never been a requirement that such weapons 

themselves determine that legal requirements are met.

Rather, it is persons who must comply with the law of war. For example, persons may 

not use inherently indiscriminate weapons.

105 In addition, in the situation in which a person is 

using a weapon that selects and engages targets autonomously, that person must refrain from 

using that weapon where it is expected to result in incidental harm that is excessive in relation to 

the concrete and direct military advantage expected to be gained.106 In addition, the obligation 

on the person using the weapon to take feasible precautions in order to reduce the risk of civilian 

casualties may be more significant when the person uses weapon systems with more 

sophisticated autonomous functions.107 For example, such feasible precautions a person is 

obligated to take may include monitoring the operation of the weapon system or programming or 

building mechanisms for the weapon to deactivate automatically after a certain period of time.

6.5.9.4 DoD Policy on Autonomy in Weapon Systems. DoD policy has addressed 

the use of autonomy in certain types of weapon systems.108 Under a 2012 policy, certain types 

of autonomous weapon systems require an additional review by senior DoD officials before 

formal development and fielding.109 In addition, the policy establishes rigorous standards for 

system design, testing of hardware and software, and training of personnel on the proper use of 

autonomous and semi-autonomous systems. Among other things, the policy requires that 

military commanders use autonomous and semi-autonomous weapon systems in a manner 

consistent with their design, testing, certification, operator training, and doctrine.110

 105 Refer to § 6.7 (Inherently Indiscriminate Weapons).

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

107 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

108 DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems (Nov. 21, 2012).

109 DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems, ¶4d (Nov. 21, 2012) (“Autonomous or semiautonomous weapon systems intended to be used in a manner that falls outside the policies in subparagraphs 4.c.(1) 

through 4.c.(3) must be approved by the Under Secretary of Defense for Policy (USD(P)); the Under Secretary of 

Defense for Acquisition, Technology, and Logistics (USD(AT&L)); and the CJCS before formal development and 

again before fielding in accordance with the guidelines in Enclosure 3, References (b) and (c), and other applicable 

policies and issuances.”).

110 DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems, Enclosure 4 ¶10 (Nov. 21, 2012) (“The Commanders 

of the Combatant Commands shall: a. Use autonomous and semi-autonomous weapon systems in accordance with 
355

U.S. domestic law may also be applicable to the development of autonomous functions in 

certain weapon systems.111

6.5.10 Non-Lethal (Less-Lethal) Weapons. The law of war does not prohibit or 

specifically address non-lethal weapons as a class of weapons. DoD policies regulate non-lethal 

weapons and require the legal review of their acquisition, as with other types of weapons. There 

is no requirement to use non-lethal weapons before using lethal weapons against military 

objectives. 

6.5.10.1 Non-Lethal Weapons – Notes on Terminology. The United States is not a 

Party to any law of war treaty that regulates “non-lethal weapons” as a class or category of 

weapons. Thus, there is no applicable treaty definition of “non-lethal weapons” for the purpose 

of applying rules related to such weapons. Accordingly, in practice, the contours of the 

definition of “non-lethal weapons” have been developed as a matter of policy for the purpose of 

applying DoD policies with respect to “non-lethal weapons.”

6.5.10.2 Description and Examples of Non-Lethal Weapons. Non-lethal weapons, 

sometimes called “less-lethal weapons,” have been defined as weapons, devices, and munitions 

that are explicitly designed and primarily employed to incapacitate targeted personnel or materiel 

immediately, while minimizing fatalities, permanent injury to personnel, and undesired damage 

to property in the target area or environment.112

Non-lethal weapons are less lethal than conventional military weapons, and they use 

means other than gross physical destruction to defeat targets (whether enemy vehicles or 

personnel). Non-lethal weapons are intended to have reversible effects on personnel and 

materiel.

Non-lethal weapons, however, do not have a zero probability of producing fatalities or 

permanent injuries, which is why these weapons are sometimes referred to as less-lethal 

weapons.

113 The use of non-lethal weapons may still present risks of serious injury or loss of 

 

this Directive and in a manner consistent with their design, testing, certification, operator training, doctrine, TTPs, 

and approval as autonomous or semi-autonomous systems.”).

111 See, e.g., PUBLIC LAW 100-180, § 224 (Dec. 4, 1987) (“No agency of the Federal Government may plan for, 

fund, or otherwise support the development of command and control systems for strategic defense in the boost or 

post-boost phase against ballistic missile threats that would permit such strategic defenses to initiate the directing of 

damaging or lethal fire except by affirmative human decision at an appropriate level of authority.”). This statute 

may, however, be an unconstitutional intrusion on the President’s authority, as Commander in Chief, to determine 

how weapons are to be used in military operations.

112 DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, Glossary 

(Apr. 25, 2013) (“NLW. Weapons, devices, and munitions that are explicitly designed and primarily employed to 

incapacitate targeted personnel or materiel immediately, while minimizing fatalities, permanent injury to personnel, 

and undesired damage to property in the target area or environment. NLW are intended to have reversible effects on 

personnel and materiel.”).

113 See NATO RESEARCH AND TECHNOLOGY ORGANISATION TECHNICAL REPORT RTO-TR-HFM-073, The Human 

Effects of Non-Lethal Technologies, §6-4 (August 2006) (“Terminology options have referred to ‘non-lethal’, ‘less 

than lethal’, or ‘less-lethal’. These first two terms imply that death will not result following the use of these 

weapons but plainly, this is not always the case in spite of the reassuring connotation. ... The military forces of the 

North Atlantic Treaty Organisation (NATO) use the descriptor ‘non-lethal’. This term in the military context does 
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life. 

Non-lethal weapons include, but are not limited to:114

• riot control agents;115

• blunt impact projectiles, such as stingball grenades, beanbag rounds, and rubber bullets;

• dazzling lasers that cause temporary loss of sight;

• the active denial system, a directed energy weapon that uses millimeter wave energy to 

penetrate 1/64th of an inch into the surface of the skin, causing a rapid and intense 

heating sensation;

• electrical stun guns that incapacitate by disrupting the body’s electrical signals (also 

called human electro-muscular incapacitation devices or tasers); and

• counter-material weapons, such as the vehicle lightweight arresting device or the portable 

vehicle arresting barrier, that are designed to stop vehicles without harming the occupants 

of the vehicles.

6.5.10.3 No Law of War Prohibitions or Restrictions on Non-Lethal Weapons as 

Such. The law of war does not prohibit or specifically address non-lethal weapons as a class of 

weapons. Rather, such weapons are governed by the general customary rules applicable to 

weapons and other specific rules, insofar as those rules are applicable. For example, the use of 

riot control agents is prohibited as a method of warfare.116 

Weapons designed to use the minimum amount of force and to preserve life are, 

consistent with the principle of humanity, often less likely to be prohibited or restricted by the 

law of war.

6.5.10.4 DoD Policy Requiring a Legal Review of the Acquisition of Non-Lethal 

 

not imply nil casualties or damage, but is a statement of intent to achieve the lowest achievable probability of 

casualties and physical damage. The term has often been challenged as being inappropriate, but an alternative 

descriptor that can provide a better interpretation has yet to be widely adopted within international circles.”).

114 For example, David A. Koplow, Tangled Up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent 

Confrontations, 36 GEORGETOWN JOURNAL OF INTERNATIONAL LAW 703, 727 (2005) (“In 1995, the thirteenth 

Marine Expeditionary Unit was assigned the daunting mission of covering the withdrawal of 2,500 United Nations 

peacekeepers from chaotic Somalia, while providing protection against native war lords, disorganized military, and 

paramilitary units. Lieutenant General Anthony C. Zinni boldly decided to include a variety of NLW in the 

Marines’ training and equipment for this operation ‘United Shield,’ and his departure from standard operation 

procedures garnered a substantial amount of publicity. Among the unconventional tools deployed to Somalia were: 

sticky foam, used to create temporary, immediate barriers; caltrops, sharp-edged pyramids that could puncture the 

tires of vehicles following too closely; flash-bang and stinger grenades; low-kinetic-energy rounds which fired 

beanbags or wooden plugs; laser dazzlers and target designators; and chemical riot control agents.”).

115 Refer to § 6.16 (Riot Control Agents).

116 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).
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Weapons. DoD policy has addressed non-lethal weapons.117 Like lethal weapons, non-lethal

weapons have been subject to legal review to ensure their compliance with U.S. law of war and 

arms control obligations.118 

If acquisition of a non-lethal weapon is being considered, the command seeking to 

acquire the weapon should inquire through command or service channels whether the applicable 

legal reviews have been conducted.

6.5.10.5 No Requirement to Use Non-Lethal Weapons Before Using Lethal 

Weapons Where Deadly Force Is Warranted. Where the use of deadly force is warranted, such 

as against enemy combatants, the law of war does not create a legal obligation to use non-lethal 

weapons before using lethal weapons.119 Moreover, under the law of war, the availability of 

non-lethal weapons does not create the obligation to use these weapons instead of lethal weapons

or create a higher standard for the use of force.120 

In addition, the availability of non-lethal weapons does not limit the authority to use force 

in self-defense.121

6.6 WEAPONS CALCULATED TO CAUSE SUPERFLUOUS INJURY

It is especially forbidden to use weapons that are calculated to cause superfluous 

 117 For example, DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW 

Policy (Apr. 25, 2013); DOD DIRECTIVE 3000.3, Policy for Non-Lethal Weapons (Jul. 9, 1996).

118 For example, DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW 

Policy, Enclosure 2 ¶11 (Apr. 25, 2013) (“The Secretaries of the Military Departments and the Commander, 

USSOCOM, through the CJCS: ... c. Require, as appropriate, that a legal review of the acquisition of all NLW is 

conducted in accordance with Reference (h) and an arms control compliance review is completed in accordance with 

DoDD 2060.1 (Reference (l)).”); DOD DIRECTIVE 3000.3, Policy for Non-Lethal Weapons, ¶E6 (Jul. 9, 1996) (“The 

Secretaries of the Military Departments and the Commander in Chief of the United States Special Operations 

Command shall: ... (b) Ensure that a legal review of the acquisition of all non-lethal weapons is conducted. The 

review should ensure consistency with the obligations assumed by the U.S. Government under all applicable 

treaties, with customary international law, and, in particular, the laws of war.”).

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

120 DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, ¶3h (Apr. 

25, 2013) (“The presence of NLW will not constitute an obligation for their use, or create a higher standard for the 

use of force, under the applicable law, rules of engagement, or other rules for the use of force.”); DOD DIRECTIVE 

3000.3, Policy for Non-Lethal Weapons, ¶4.5 (Jul. 9, 1996) (“Neither the presence nor the potential effect of nonlethal weapons shall constitute an obligation for their employment or a higher standard for employment of force than 

provided for by applicable law. In all cases, the United States retains the option for immediate use of lethal 

weapons, when appropriate, consistent with international law.”).

121 DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, ¶3g (Apr. 

25, 2013) (“The availability of NLW will not limit the commander’s inherent right or obligation to exercise unit 

self-defense in response to a hostile act of [sic] demonstrated hostile intent, or to use lethal force when authorized by 

competent authority pursuant to the standing rules of engagement or standing rules for the use of force.”); DOD

DIRECTIVE 3000.3, Policy for Non-Lethal Weapons, ¶4.4 (Jul. 9, 1996) (“The availability of non-lethal weapons 

shall not limit a commander’s inherent authority and obligation to use all necessary means available and to take all 

appropriate action in self-defense.”).
358

injury.

122

6.6.1 Superfluous Injury or Unnecessary Suffering – Notes on Terminology. The 

prohibition against weapons calculated to cause superfluous injury or of a nature to cause 

unnecessary suffering has been formulated in a variety of ways both in treaties to which the 

United States is a Party and in other treaties. The United States is not a Party to a treaty that 

provides a definition of “superfluous injury.” 

Article 23(e) of the 1899 Hague II Regulations prohibits weapons “of a nature to cause 

superfluous injury.” Article 23(e) of the 1907 Hague IV Regulations prohibits weapons 

“calculated to cause unnecessary suffering.” The official texts of both the 1899 and 1907 treaties 

are French, and the French text of that paragraph is exactly the same in both treaties, even though 

English translations of the treaties are different. The title of the CCW refers to “Weapons Which 

May be Deemed to Be Excessively Injurious,” and the CCW Preamble also recognizes “the 

principle that prohibits the employment in armed conflicts of weapons, projectiles and material 

and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”

Treaties that the United States has not ratified have also included this prohibition. The 

Preamble to the 1868 Declaration of St. Petersburg noted that “the employment of arms which 

uselessly aggravate the sufferings of disabled men, or render their death inevitable” would be “be 

contrary to the laws of humanity.”123 AP I Article 35(2) prohibits the use of “weapons, 

projectiles and material and methods of warfare of a nature to cause superfluous injury or 

unnecessary suffering.” 

Although the various formulations may be regarded as describing the same underlying 

prohibition, the phrase “calculated to cause superfluous injury” may be regarded as the more 

accurate translation of the French rule stated in the 1907 Hague IV Regulations and as more 

precisely conveying the intent of the rule.124

 122 CCW preamble (recognizing “the principle that prohibits the employment in armed conflicts of weapons, 

projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”); 

HAGUE IV REG. art. 23 (“[I]t is especially forbidden ... (e) To employ arms, projectiles, or material calculated to 

cause unnecessary suffering ... .”); 1899 HAGUE II REG. art. 23 (prohibits employing “arms, projectiles, or material 

of a nature to cause superfluous injury”). Consider AP I art. 35(2) (“It is prohibited to employ weapons, projectiles 

and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”).

123 The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95 (1907).

124 R.R. Baxter, Conventional Weapons Under Legal Prohibitions, 1 INTERNATIONAL SECURITY 42, 43 (1977) 

(“This last expression [calculated to cause unnecessary suffering] has been the source of a vast amount of confusion 

because the English translation from the authentic French text is inaccurate. The expression used in French was 

propres a causer des maux superflus, which might be more accurately translated as ‘calculated to cause superfluous 

(or excessive) injury.’ In the metaphysical atmosphere in which the legality of certain weapons is often discussed, 

such niceties count.”); W. Hays Parks, Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF 

INTERNATIONAL HUMANITARIAN LAW 55, 86-87 footnote 123 (2005) (“This argument [about superfluous injury or 

unnecessary suffering] was based upon a novel ICRC interpretation of the original 1899 Hague language in Art. 

23(g) of the Annex prohibiting ‘arms, projectiles or material of a nature to cause superfluous injury’, as compared to 

the language in the subsequent 1907 Hague Convention, ‘calculated to cause unnecessary suffering’. The latter 

phrase is a clearer expression of the intent of governments to focus on design and intended purpose rather than every 

remote possibility of weapon injury.”).
359

This manual generally uses the formulation “weapons calculated to cause superfluous 

injury” or refers to the “superfluous injury rule.”

6.6.2 Superfluous Injury Rule – the Principle of Humanity. The superfluous injury rule is 

an application of the principle of humanity in the context of weapons.

125 The superfluous injury 

rule prohibits weapons that are designed to increase the injury or suffering of the persons 

attacked beyond that justified by military necessity.

126 

Thus, the principle of humanity may assist in understanding and applying the rule.

127 For 

example, weapons that are regarded as lawful in peacetime or that apply only the minimum force 

necessary in order to avoid death or injury to civilians would not be prohibited under the 

superfluous injury rule.128

6.6.3 Applying the Superfluous Injury Rule. The test for whether a weapon is prohibited 

by the superfluous injury rule is whether the suffering caused by the weapon provides no military 

advantage or is otherwise clearly disproportionate to the military advantage reasonably expected 

from the use of the weapon.129 Thus, the suffering must be assessed in relation to the military 

utility of the weapon.130 Weapons that may cause great injury or suffering or inevitable death 

are not prohibited, if the weapon’s effects that cause such injury are necessary to enable users to 

 125 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory 

Appeal on Jurisdiction, ¶119 (Oct. 2, 1995) (explaining that the prohibitions on weapons in the customary law of 

war applicable to international and non-international armed conflicts are based on “elementary considerations of 

humanity and common sense”).

126 Written Statement of the Government of the United States of America, 28-29, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“This prohibition was intended to preclude weapons designed to increase the injury or suffering of the 

persons attacked beyond that necessary to accomplish the military objective. It does not prohibit weapons that may 

cause great injury or suffering if the use of the weapon is necessary to accomplish the military mission. For 

example, it does not prohibit the use of anti-tank munitions which must penetrate armor by kinetic-energy or 

incendiary effects, even though such weapons can produce severe and painful injuries.”).

127 Refer to § 2.3 (Humanity).

128 Cf. Statement by Secretary Rusk, Mar. 24, 1965, 52 DEPARTMENT OF STATE BULLETIN 529 (Apr. 12, 1965) 

(defending the legality of riot control agents by explaining that “[w]hat has been involved has been well-known, 

traditional agents, in the hands of police forces in many parts of the world. And under the circumstances in which 

this gas was used in Viet-Nam, the desire was to use the minimum force required to deal with the situation to avoid 

death or injury to innocent people.”). Refer to § 6.16 (Riot Control Agents).

129 WINTHROP, MILITARY LAW & PRECEDENTS 784 (“An illegitimate weapon of war would be one which, in 

disabling or causing death, inflicted a needless, unusual and unreasonable amount of torture or injury and the 

deliberate use of such a weapon would properly be treated as a violation of the laws of war.”); SPAIGHT, WAR 

RIGHTS ON LAND 75 (“Hence commanders are quite ready to admit the claims of humanity to the extent of forgoing 

the use of any engine of war whose military effect is disproportioned to the suffering it entails.”).

130 Ronald J. Bettauer, Deputy Assistant Legal Adviser, Department of State, Statement at the Conference of 

Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, held in 

Lucerne from Sept. 24 to Oct. 18, 1974, Sept. 25, 1974, 1974 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 707 (“It is the U.S. view that the ‘necessity’ of the suffering must be judged in relation to the 

military utility of the weapons. The test is whether the suffering is needless, superfluous, or disproportionate to the 

military advantage reasonably expected from the use of the weapon.”).
360

accomplish their military missions.

131

6.6.3.1 Military Necessity. The legitimate military necessity that may be 

considered in assessing the legality of a weapon includes its capability to disable or incapacitate 

enemy combatants, including, for example:

• the probability of striking a person against whom the weapon is aimed or directed;

• the probability that a person who is struck by the weapon will be incapacitated;

• the speed at which a person who is struck by the weapon will be incapacitated; and 

• the number of persons the weapon could strike.

132

However, the military utility of the weapon is often broader than its capacity to disable 

enemy combatants.133 It may include other factors, such as:

134

• the destruction or neutralization of military materiel;

• the restriction of military movement;

• the interdiction of military lines of communication;

• the effects on the morale, command and control, stamina, and cohesion of opposing 

forces;

 131 Written Statement of the Government of the United States of America, 32-33, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“This argument is based on a misconception of the St. Petersburg principle, which was directed at antipersonnel weapons that were deliberately designed to kill when that design feature was not needed to disable enemy 

combatants. This does not mean that it is unlawful to use a weapon that has a high probability of killing persons in 

its immediate vicinity if that design feature is required to fulfill a legitimate military mission. For example, any 

large high-explosive or fragmentation weapon has a high probability of killing exposed persons within a certain 

distance of the detonation. An effective anti-submarine, anti-aircraft or anti-tank weapon has a high probability of 

killing the crews of these vehicles. This fact does not make these weapons unlawful, since these lethal effects are 

necessary for the effective accomplishment of their legitimate mission.”).

132 SPAIGHT, AIR POWER AND WAR RIGHTS 203 (“[A]lthough a shell [fired by a cannon] may kill or mutilate—and 

mutilate horribly—only one man, it may also be compensated by the possible ‘bag’ of a projectile of widely 

radiating effect.”).

133 BOTHE, PARTSCH, & SOLF, NEW RULES 196 (AP I art. 35, ¶2.3.3) (“The problem cannot be simplified by restating 

the preamble of the 1968 [sic] St. Petersburg Declaration that to weaken the enemy’s military forces it is sufficient 

to disable the greatest possible number of men (i.e., to render enemy combatants hors de combat). This test is valid 

only for weapons designed for antipersonnel purposes. However, weapons are designed and produced to be used to 

fulfill a variety of military requirements other than merely disabling enemy combatants.”).

134 BOTHE, PARTSCH, & SOLF, NEW RULES 196-97 (AP I art. 35, ¶2.3.3) (“Some examples of such requirements 

include the destruction or neutralization of military material, restriction of military movement, the interdiction of 

military lines of communications, the weakening of the enemy’s war making resources and capabilities, and the 

enhancement of the security of friendly forces. ... Factors which must also be taken into account are the 

availability of alternate weapon systems (and their effects), the logistics of providing the weapon and its ammunition 

at the place where it is to be used when needed, and the security of the troops involved.”).
361

• the weakening of the enemy’s war-making resources and capabilities;

• the enhancement of the security of forces employing the weapon or other friendly forces;

• the effectiveness of the weapon against particular types of targets;

• the availability of alternative weapons and their effects;

• the logistics of providing the weapon and its ammunition where and when it is needed;

• the amount of ammunition required;

• the cost of using the weapon in terms of time, money, and other resources;

• the efficacy of the weapon compared to the adversary’s defenses;

• the efficacy of the weapon in light of the weapons and tactics of the adversary; or

• the risk to the civilian population when the weapon is used for its intended purposes.135

These other factors can justify weapons that inflict injuries on enemy combatants that are much 

greater than the minimum needed to render them hors de combat. For example, an artillery shell 

designed to destroy field fortifications or heavy material causes injuries to enemy personnel that 

are much greater than those necessary to make enemy combatants hors de combat. However, the 

artillery shell is not prohibited because these military advantages are not clearly disproportionate 

to the injuries it inflicts.

136

6.6.3.2 Suffering and Injury Inflicted. The superfluous injury rule addresses the 

harm inflicted upon the persons who are struck by the weapon. The types of harm addressed by 

the superfluous rule include: mortality rates, the painfulness of wounds, the severity of wounds, 

and the ease with which they may be treated (including the incidence of permanent damage or 

disfigurement).

137 Weapons that have been modified only for the purpose of increasing these 

 135 Christopher Greenwood, Legal Aspects of current Regulations, KEYNOTE SPEECHES, THIRD INTERNATIONAL 

WORKSHOP ON WOUND BALLISTICS (Thun, Switzerland, Mar. 28-29, 2001) (“Moreover, there are circumstances, 

particularly in street warfare and in counter terrorist operations where it may be necessary to make a trade, in effect, 

between the principle of the protection of civilian life and the principle of ‘unnecessary suffering’ to combatants. 

What I would like to suggest is that where that trade has to be made – and I accept that it is not one which has to be 

made in all, or even most types of combat – one cannot regard suffering as unnecessary if it is inflicted for the 

purpose of protecting the civilian population. In other words, if the civilian population’s protection is enhanced by 

the use of a particular weapon, then the adverse effects of that weapon on combatants cannot properly be regarded as 

unnecessary.”).

136 BOTHE, PARTSCH, & SOLF, NEW RULES 196-97 (AP I art. 35, ¶2.3.3) (“[A]n artillery projectile or missile 

designed to destroy field fortifications or heavy material may be expected to cause injuries to personnel in the 

vicinity of the target which would be more severe than necessary to render these combatants hors de combat, but no 

authority has questioned the lawfulness of such projectiles despite the gravity of the incidental effect on 

personnel.”).

137 See INTERNATIONAL COMMITTEE OF THE RED CROSS, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OF 

CERTAIN CONVENTIONAL WEAPONS: LUCERNE, SEPT. 24- OCT. 18, 1974, 8 (¶23) (Geneva, 1975) (“The concept of 
362

types of harms for persons who have already been incapacitated are prohibited by the 

superfluous injury rule.138

6.6.3.3 Clearly Disproportionate. A weapon is only prohibited by the superfluous 

injury rule if the suffering it inflicts is clearly disproportionate to its military utility. This 

excessiveness should be assessed in light of the State practice and opinio juris and the principle 

of humanity.

Because of the difficulty of comparing the military necessity for the weapon and the 

suffering it is likely to cause, a weapon is only prohibited if the suffering is clearly or manifestly 

disproportionate to the military necessity.139 The suffering likely to result from the use of the 

weapon and its military effectiveness are likely to be difficult to assess, much less to compare to 

one another.140

Like other determinations of customary international law, whether a weapon is calculated 

to cause superfluous injury is to be determined in light of the practice of States, and in particular, 

whether States have declined to use the weapon or similar weapons because they are believed to 

 ‘injury’ or ‘suffering’ evoked some further comment. It was generally considered that this comprised such factors 

as mortality rates, the painfulness or severeness of wounds, or the incidence of permanent damage or 

disfigurement.”).

138 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

139 BOTHE, PARTSCH, & SOLF, NEW RULES 197 (AP I art. 35, ¶2.3.3) (“Because of the impossibility of quantifying 

either side of the equation it is important that military advantage be qualified by such words as ‘definite’, and also 

that the disproportionate suffering be ‘manifest’ or ‘clear’.”). See also W. Hays Parks, Special Assistant for Law of 

War Matters, Office of The Judge Advocate General, U.S. Army, Joint Service Combat Shotgun Program, THE

ARMY LAWYER 16, 18 (Oct. 1997) (“In determining whether a weapon causes superfluous injury, a balancing test is 

applied between the force dictated by military necessity to achieve a legitimate objective vis-a-vis injury that may be 

considered superfluous to the achievement of the stated or intended objective (in other words, whether the suffering 

caused is out of proportion to the military advantage to be gained). The test is not easily applied; a weapon that can 

incapacitate or wound lethally at, for example, 300 meters or longer ranges may result in a greater degree of 

incapacitation or greater lethality at lesser ranges. For this reason, the degree of ‘superfluous’ injury must be clearly 

disproportionate to the intended objective(s) for development of the weapon (that is, the suffering must outweigh 

substantially the military necessity for the weapon).”); W. Hays Parks, Chief, International Law Branch, 

International Affairs Division, Office of the Judge Advocate General, U.S. Army, Memorandum re: Sniper Use of 

Open-Tip Ammunition, Oct. 12, 1990, reprinted in THE ARMY LAWYER 86, 87 (Feb. 1991) (similar).

140 BOTHE, PARTSCH, & SOLF, NEW RULES 196 (AP I art. 35, ¶2.3.3) (“In applying para. 2 of Art. 35, the suffering or 

injury caused by a weapon must be judged in relation to the military utility of the weapon. The test is whether the 

suffering is needless, superfluous, or manifestly disproportionate to the military advantage reasonably expected from 

the use of the weapon. On the humanitarian side of the equation against which military advantage is to be balanced 

are such factors as the painfulness or severity of wounds, mortality rates, and the incidence of permanent damage or 

disfigurement and the feasibility of treatment under field conditions. Neither element of the equation can be taken in 

isolation. All such comparative judgments logically lead to an inquiry into how much suffering various weapons 

cause and whether available alternate weapons can achieve the same military advantage effectively but cause less 

suffering. The comparison of, and balancing between, suffering and military effectiveness is difficult in practice 

because neither side of the equation is easy to quantify. Inevitably, the assessment will be subjective even when 

sufficient agreed factual data are available on wound effects and military effectiveness.”).
363

have this effect.

141 The consideration of the military utility of the weapon and the suffering the 

weapon inflicts should be compared to other destructive mechanisms that States have used or 

retained for use and consider to be lawful. 

A State’s acceptance of a treaty prohibition against a weapon should not be understood as 

necessarily reflecting that State’s conclusion that the weapon is calculated to cause superfluous 

injury. For example, the CCW and its Protocols generally do not reflect a conclusion that the 

weapons prohibited or restricted by them are calculated to cause superfluous injury.142 On the 

other hand, a prohibition or restriction in a treaty can be relevant in determining that a weapon is 

not calculated to cause superfluous injury. For example, the CCW Amended Mines Protocol 

prohibits mines, booby-traps, and other devices that are designed or of a nature to cause 

unnecessary suffering.143 Thus, this prohibition implicitly recognizes that not all mines, boobytraps, and other devices are calculated to cause superfluous injury.144 In addition, even if a treaty 

that declared that certain weapons were calculated to cause superfluous injury, such treaty 

language would not necessarily mean that the weapon was prohibited by customary international 

law. For example, specially affected States might decline to ratify the treaty and decide to retain 

the right to use the weapon.145

6.6.3.4 Superfluous Injury Rule – the Circumstances to Be Assessed and Design 

Intent. In determining a weapon’s legality, the weapon’s planned uses and the normal 

circumstances in which it would be used should be considered.146 It is not necessary to assess all 

possible uses or all possible circumstances.

6.6.4 Weapons Modified for the Purpose of Aggravating the Harm Inflicted on 

Incapacitated Persons. Weapons that have been modified for the purpose of aggravating the 

harm inflicted upon incapacitated persons are weapons that are prohibited by the superfluous 

 141 1956 FM 27-10 (Change No. 1 1976) ¶34b (“What weapons cause ‘unnecessary injury’ [within the meaning of 

Hague IV Reg. art. 23(e)] can only be determined in light of the practice of States in refraining from the use of a 

given weapon because it is believed to have that effect.”).

142 Refer to § 19.21.1.3 (CCW and Customary International Law).

143 Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

144 Article-by-Article Analysis of CCW Amended Mines Protocol, 11, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 11 (CCW Amended 

Mines Protocol art. 3(3) “reiterates a proscription already in place as a matter of customary international law 

applicable to all weapons. It also implicitly makes clear that mines, booby-traps and other devices are not, per se, of 

a nature to cause unnecessary suffering, for if that were considered to be the case, no such rule would be necessary 

and they would be prohibited entirely.”).

145 Refer to § 1.8.2.3 (Specially Affected States).

146 WILLIAM BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 62 (2009) (“So, in the context of superfluous 

injury and unnecessary suffering, the comparator [or excessiveness] must be determined by ‘the generic purpose or 

purposes for which the weapon has been designed or adapted, or the purpose or purposes for which that weapon will 

generally be used’. The word ‘generic’ is used here to show that we are specifically not referring to the use of the 

weapon on a particular occasion in prosecution of a specific mission. The word ‘generally’ indicates that it is the 

normal applications of the weapon that are to be considered, not some unusual application, or misapplication, of it 

which lies outside the scope of purposes for which it was procured or adapted.”).
364

injury rule.

147 

For example, adding poison to bullets or other substances to weapons for the purpose of 

increasing the pain caused by the wound, to make wounds more difficult to treat, or to make 

death inevitable, would be prohibited. Such a substance would not increase the military utility of 

the weapon to incapacitate the enemy (i.e., it would have no corresponding military advantage);

thus, the additional injury would be superfluous when compared to the injury caused by the 

weapon without such a substance.

Weapons that have been modified are readily assessed under the superfluous injury rule 

because the unmodified version of the weapon provides a clear point of comparison. It is 

difficult to compare, in the abstract, the military utility of a weapon against the suffering it 

causes. But, by comparing an existing weapon to a proposed modification, one can evaluate

more easily whether the proposed changes are warranted by legitimate military reasons (e.g., to 

increase the ability of the weapon to incapacitate the enemy) or illegitimate reasons (e.g., 

cruelty) because, in considering a modification to the weapon, one would expect that a number 

of relevant factors would be the same as between the existing weapon and the proposed 

modification.

6.7 INHERENTLY INDISCRIMINATE WEAPONS

Inherently indiscriminate weapons, i.e., weapons that are incapable of being used in 

accordance with the principles of distinction and proportionality, are prohibited. Such weapons 

include weapons that are specifically designed to conduct attacks against the civilian population 

as well as weapons that, when used, would necessarily cause incidental harm that is excessive 

compared the military advantage expected to be gained from their use.

6.7.1 Inherently Indiscriminate Weapons – Principles of Distinction and Proportionality. 

The prohibition against inherently indiscriminate weapons results from the principles of 

distinction and proportionality.148 Attacks must be conducted in accordance with the principles 

of distinction and proportionality.149 Consequently, a weapon that, when used, would 

necessarily violate these rules, would be prohibited.150 

 147 Consider The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95 

(1907) (considering that it would “be contrary to the laws of humanity” to use “arms which uselessly aggravate the 

sufferings of disabled men, or render their death inevitable;”).

148 Refer to § 2.5 (Distinction); § 2.4 (Proportionality).

149 Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected 

to Cause Excessive Incidental Harm).

150 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶78) (“The 

cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is 

aimed at the protection of the civilian population and civilian objects and establishes the distinction between 

combatants and non-combatants; States must never make civilians the object of attack and must consequently never 

use weapons that are incapable of distinguishing between civilian and military targets.”); GREENSPAN, MODERN 

LAW OF LAND WARFARE 359 (“[I]t must be borne in mind that indiscriminate bombardment of the civilian 

population is prohibited, so that weapons which must necessarily have that effect when used are also illegal.”).
365

Few weapons have been understood to be inherently indiscriminate weapons.

151 This 

may be the case because weapons that are more accurate and precise are more militarily 

effective; the military and humanitarian interests coincide.152 On the other hand, the few 

weapons that have been understood to violate this rule have been directed at illegitimate 

objectives, such as attacking and terrorizing the civilian population.153

6.7.2 Inherently Indiscriminate Weapons – Circumstances to Be Assessed and Design 

Intent. The test for whether a weapon is inherently indiscriminate is whether its use necessarily 

violates the principles of distinction and proportionality, i.e., whether its use is expected to be

illegal in all circumstances.

Special consideration should be given to the planned or intended uses of the weapon, i.e., 

those that are reasonably foreseeable. For example, a practitioner conducting a legal review of 

the proposed acquisition or procurement of a weapon should consider the uses of the weapon that 

are planned and reflected in the design documents. Practitioners should advise if the planned 

uses of the weapon are not consistent with the principles of distinction and proportionality, with 

a view towards ensuring that either the weapon or the planned uses are modified accordingly.

The wide range of circumstances in which weapons can lawfully be used should also be 

considered before concluding that a weapon is prohibited as inherently indiscriminate. For 

example, in some circumstances, an area of land can be a military objective.154 Thus, even if it 

would not be possible for the weapon to be directed against enemy combatants, if the weapon 

could be directed at specific areas, it would be unlikely that the weapon would be considered 

inherently indiscriminate. As another example, in some circumstances, feasible precautions can 

mitigate the incidental harm expected to be caused so that it is not excessive.

155 Whether such 

precautions could be taken to mitigate the expected incidental harm caused by the weapon under 

review should be considered before concluding that a weapon is prohibited as inherently 

indiscriminate.

6.7.3 Weapons Designed to Conduct Attacks Against the Civilian Population. Inherently 

 151 Christopher Greenwood, Legal Aspects of current Regulations, KEYNOTE SPEECHES, THIRD INTERNATIONAL 

WORKSHOP ON WOUND BALLISTICS (Thun, Switzerland, Mar. 28-29, 2001) (“There are virtually no cases of 

weapons which are inherently indiscriminate. The United States Naval Commander’s Handbook, one of the most 

modern texts and an important piece of State practice, gives in its annotations an illustration of an inherently 

indiscriminate weapon – a proposal during the Second World War to tie tiny incendiary bombs around the necks of 

bats. The bats would then be released from aircraft over enemy targets, would glide down into the trees and into the 

rafters of buildings and set fire to those buildings when the incendiaries exploded. If that is the best example that 

can be given of an inherently indiscriminate weapon, there are not very many inherently indiscriminate weapons in 

existence.”).

152 ICRC AP COMMENTARY 621 (¶1958) (“It should be noted that most armies endeavour to use accurate weapons as 

attacks which do not strike the intended objective result in a loss of time and equipment without giving a 

corresponding advantage. ... Here the military interests and humanitarian requirements coincide.”).

153 Refer to § 6.7.3 (Weapons Designed to Conduct Attacks Against the Civilian Population).

154 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

155 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).
366

indiscriminate weapons include those that are specifically designed to be used to conduct attacks 

against the civilian population, including attacks to terrorize the civilian population. For 

example, Japanese bombs attached to free-floating, long-range balloons used during World War 

II were unlawful for this reason.

156 Also, German long-range rockets without guidance systems 

used during World War II were similarly illegal.

157

6.7.4 Weapons That Necessarily Cause Excessive Incidental Harm. Indiscriminate 

weapons also include weapons whose anticipated incidental effects are necessarily excessive 

compared to the military advantages expected to be gained from using the weapon.158 To be 

clear, the principle of proportionality does not prohibit the use of weapons whose destructive 

force cannot be limited to a specific military objective.159 Such weapons may be used when their 

use is required against a target of sufficient military importance to outweigh the incidental harm 

 156 For example, ROBERT C. MIKESH, JAPAN’S WORLD WAR II BALLOON BOMB ATTACKS ON NORTH AMERICA 1

(1973) (“In a desperate attempt to find a means of reprisal [for the Doolittle raid], the Japanese conceived a method 

to strike directly at the American continent. Their plan was simple; launch balloons with incendiary and 

antipersonnel bombs attached, let them travel across the Pacific with the prevailing winds, and drop on American 

cities, forests, and farmlands. It took over two years to design the balloons, bombs, and automatic dropping 

mechanism. ... Finally, on 3 November 1944, the first of more than nine thousand bomb-bearing balloons was 

released. It is estimated that nearly one thousand of the death-dealing balloons must have reached the North 

American continent.”).

157 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 214-15 (“As used by the Germans in 1944-45, [the V-2 

long-range rocket] was simply a crude instrument of random bombardment, utterly lacking in precision, and its 

military value was nil. While such a weapon is not banned in terms by any international convention, the use of it 

could not be regarded as compatible with the observance of certain rules which are the subject of definite 

international agreement, such as those forbidding the bombardment ‘by any means’ of undefended towns and 

villages, and those enjoining the sparing, as far as possible, of ‘buildings dedicated to religious, art, science or 

charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.’ ... The 

flying [V-1] bomb is another abominable projectile which might well be prohibited at the same time. It is, again, a 

weapon which cannot really be aimed at all.”).

158 1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“In addition, some weapons, though capable of being directed only at 

military objectives, may have otherwise uncontrollable effects so as to cause disproportionate civilian injuries or 

damage. Biological warfare is a universally agreed illustration of such an indiscriminate weapon. Uncontrollable 

effects, in this context, may include injury to the civilian population of other states as well as injury to an enemy’s 

civilian population. Uncontrollable refers to effects which escape in time or space from the control of the user as to 

necessarily create risk to civilian persons or objects excessive in relation to the military advantage anticipated. 

International law does not require that a weapon’s effects be strictly confined to the military objectives against 

which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury 

to civilians or damage to civilian objects.”).

159 J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972, 

reprinted in 67 AJIL 122, 124 (1973) (“The existing laws of armed conflict do not prohibit the use of weapons 

whose destructive force cannot be limited to a specific military objective. The use of such weapons is not 

proscribed when their use is necessarily required against a military target of sufficient importance to outweigh 

inevitable, but regrettable, incidental casualties to civilians and destruction of civilian objects.”). See also Edward 

Cummings, Head of the U.S. Delegation to CCW Group of Government Experts, Statement, Jul. 17, 2002 (“On 

proportionality. As the paper noted, the law of armed conflict does not require the effects of weapons to be limited 

such that they cause no civilian casualties. This would, unfortunately, be impossible. It does however, as Professor 

Greenwood points out, require compliance with the principle of proportionality with respect to the use of weapons 

and thus requires an assessment of the risks posed to civilians in the context of the military advantage hoped for.”).
367

that is expected to result.160

As with the superfluous injury rule, in assessing whether weapons necessarily cause 

excessive incidental harm, it will be important to consider whether the practice of States 

demonstrates that they are prohibited as such.161 For example, the United States regards nuclear 

weapons not to be inherently disproportionate weapons.162 

Weapons that necessarily cause excessive incidental harm include “blind” or essentially 

random weapons that are incapable of being controlled, and thus, cannot, with any degree of 

certainty, be directed against a military objective.163 The expected incidental harm from the use 

of such weapons outweighs the little, if any, military utility of such weapons.

164

Weapons that necessarily cause excessive incidental harm also include weapons whose 

uncontrollable nature is such that, even when directed against military objectives, they otherwise 

are expected invariably to cause excessive incidental harm. For example, using communicable 

diseases such as the plague as weapons has been prohibited, in part because such use would 

almost inevitably cause excessive incidental harm among the civilian population compared to the 

military advantages from their use.

165 

6.8 POISON, POISONED WEAPONS, POISONOUS GASES, AND OTHER CHEMICAL WEAPONS

The use of poison, poisoned weapons, poison and asphyxiating gases, and other chemical 

weapons is prohibited.

6.8.1 Poison and Poisoned Weapons. It is especially forbidden to use poison or poisoned 

weapons.166 For example, poisoning the enemy’s food or water supply is prohibited.167

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

161 Refer to § 6.6.3.3 (Clearly Disproportionate).

162 Written Statement of the Government of the United States of America, 23, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“Whether an attack with nuclear weapons would be disproportionate depends entirely on the 

circumstances, including the nature of the enemy threat, the importance of destroying the objective, the character, 

size and likely effects of the device, and the magnitude of the risk to civilians. Nuclear weapons are not inherently 

disproportionate.”).

163 1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“Indiscriminate weapons are those incapable of being controlled, 

through design or function, and thus they can not, with any degree of certainty be directed against military 

objectives.”); BOTHE, PARTSCH, & SOLF, NEW RULES 305 (AP I art. 51, ¶2.5.2.2) (“The provision of subpara. 4.b. to 

methods which cannot be directed at a specific military objective prohibits ‘blind’ weapons which cannot, with any 

reasonable assurance, be directed against a military objective. Attaching incendiary or antipersonnel bombs to free 

floating balloons, or using long range missiles with only a rudimentary guidance system are examples of this type of 

weapon.”).

164 1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“Use of such essentially unguided weapons could be expected to 

cause unlawful excessive injury to civilians and damage to civilian objects.”).

165 Refer to § 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).

166 See HAGUE IV REG. art. 23(a) (it is especially forbidden “[t]o employ poison or poisoned weapons;”); 1899

HAGUE II REG. art. 23(a) (same); LIEBER CODE art. 16 (military necessity “does not admit of the use of poison in any 
368

Similarly, adding poison to weapons is prohibited. The rule against poison and poisoned 

weapons reflected in the 1899 Hague II Regulations has been interpreted not to include poison 

gas weapons that were developed during the modern era, which were subsequently prohibited.168

Poisons are understood to be substances that cause death or disability with permanent 

effects when, in even small quantities, they are ingested, enter the lungs or bloodstream, or touch 

the skin.169 

The longstanding prohibition against poison is based on: (1) their uncontrolled character; 

(2) the inevitability of death or permanent disability; and (3) the traditional belief that it is 

treacherous to use poison.170

6.8.1.1 Designed to Injure by Poison. This prohibition on poison applies to 

weapons that are designed to injure or kill by poison. It does not apply to weapons that injure or 

cause destruction by other means that also produce toxic byproducts.171

6.8.1.2 Death or Permanent Disability to Persons. The prohibition on using 

poison applies to use against human beings.172 Thus, the prohibition on the use of poison has 

been understood not to prohibit the use of chemical herbicides that are harmless to human 

 

way,”); LIEBER CODE art. 70 (“The use of poison in any manner, be it to poison wells, or food, or arms, is wholly 

excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.”).

167 1958 UK MANUAL ¶112 (“Water in wells, pumps, pipes, reservoirs, lakes, rivers, and the like, from which the 

enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is 

not made lawful by posting up a notice informing the enemy that the water has been thus polluted. There is, 

however, no rule to prevent measures being taken to dry up springs and to divert rivers and aqueducts.”).

168 WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 122 (2009) (“The Hague Peace 

Conference of 1899 tackled the problem [of poison gas attacks]. The delegates at that conference made no direct 

association between poison, which they considered to be an ancient and barbarous form of warfare, and poison gas, 

which was seen as a novel weapon the product of scientific advance.”).

169 1976 AIR FORCE PAMPHLET 110-31 ¶6-4f (“Poisons are biological or chemical substances causing death or 

disability with permanent effects when, in even small quantities, they are ingested, enter the lungs or bloodstream, or 

touch the skin.”).

170 1976 AIR FORCE PAMPHLET 110-31 ¶6-4f (“The longstanding customary prohibition against poison is based on 

their uncontrolled character and the inevitability of death or permanent disability as well as on a traditional belief 

that it is treacherous to use poison.”).

171 Written Statement of the Government of the United States of America, 24, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“This prohibition was established with particular reference to projectiles that carry poison into the body of 

the victim. It was not intended to apply, and has not been applied, to weapons that are designed to injure or cause 

destruction by other means, even though they also may create toxic byproducts. For example, the prohibition on 

poison weapons does not prohibit conventional explosives or incendiaries, even though they may produce dangerous 

fumes. By the same token, it does not prohibit nuclear weapons, which are designed to injure or cause destruction 

by means other than poisoning the victim, even though nuclear explosions may also create toxic radioactive 

byproducts.”).

172 1956 FM 27-10 (Change No. 1 1976) ¶37b (explaining that the prohibition against poison or poison weapons in 

the Hague IV Regulations “prohibits the use in war of poison or poisoned weapons against human beings.”).
369

beings.

173 Other rules, however, may apply to the use of herbicides.174

6.8.2 Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or 

Devices. It is prohibited to use in war asphyxiating, poisonous, or other gases, and all analogous 

liquids, materials, or devices.175 The United States has determined that this rule is part of 

customary international law.176

Although the rule appears quite broad, it has been understood only to apply to the use of 

gases that are designed to kill or injure human beings.177 Thus, herbicides and riot control agents 

 173 J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee on 

Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (explaining the DoD 

view that it does “not regard chemical herbicides, harmless to man, as poison or poisoned weapons, for if they had 

been so considered, their use against crops intended solely for the consumption by the enemy’s armed forces would 

clearly have been prohibited by Article 23(a) of the Hague Regulations.”).

174 Refer to § 6.17 (Herbicides).

175 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL (“Whereas the use in war of asphyxiating, poisonous or 

other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of 

the civilised world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of 

Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as part of 

International Law, binding alike the conscience and the practice of nations; DECLARE: That the High Contracting 

Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend 

this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves 

according to the terms of this declaration.”). Consider Treaty in Relation to the Use of Submarines and Noxious 

Gases in Warfare, art. 5, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) 

(“The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having 

been justly condemned by the general opinion of the civilized world and a prohibition of such use having been 

declared in treaties to which a majority of the civilized Powers are parties, The Signatory Powers, to the end that this 

prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of 

nations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite all 

other civilized nations to adhere thereto.”); Declaration to Abstain From the Use of Projectiles the Object of Which 

Is the Diffusion of Asphyxiating or Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 157 (1907) (“The Contracting Powers agree to abstain from the use of projectiles the object of which is 

the diffusion of asphyxiating or deleterious gases.”).

176 Franklin D. Roosevelt, Statement Warning the Axis Against Using Poison Gas, Jun. 8, 1943 (“From time to time 

since the present war began there have been reports that one or more of the Axis powers were seriously 

contemplating use of poisonous or noxious gases or other inhumane devices of warfare. ... Use of such weapons 

has been outlawed by the general opinion of civilized mankind.”); Myron C. Cramer, The Judge Advocate General, 

U.S. Army, Memorandum re: Destruction of Crops by Chemicals, ¶2, Mar. 1945, 10 INTERNATIONAL LEGAL 

MATERIALS 1304, 1305 (1971) (noting that “[a]n exhaustive study of the source materials, however, warrants the 

conclusion that a customary rule of international law has developed by which poisonous gases and those causing 

unnecessary suffering are prohibited”).

177 Myron C. Cramer, The Judge Advocate General, U.S. Army, Memorandum re: Destruction of Crops by 

Chemicals, ¶3, Mar. 1945, 10 INTERNATIONAL LEGAL MATERIALS 1304, 1305 (1971) (“Nevertheless, the scope of 

this prohibition is restricted. It does not constitute a complete ban on all gases and chemical substances. A 

distinction exists between the employment of poisonous and deleterious gases against enemy human beings, and the 

use of chemical agents to destroy property, such as natural vegetation, crop cultivations, and the like. ... The true 

motive behind the movement to outlaw poison gas is that it is considered a barbarous and inhumane weapon against 

human beings, because it inflicts unnecessary suffering upon them.”).
370

are not prohibited by this rule.178 In addition, the rule is understood only to prohibit weapons 

whose prime, or even exclusive, effect is to poison or asphyxiate.179 Thus, for example, smoke, 

flame, napalm, conventional explosives, and nuclear weapons are not covered by this rule, even 

though these weapons may produce asphyxiating or poisonous byproducts.180

6.8.3 Chemical Weapons. Chemical weapons are subject to a number of prohibitions. 

6.8.3.1 Definition of Chemical Weapons. Under the Chemical Weapons 

Convention, chemical weapons mean the following, together or separately: 

(a) Toxic chemicals and their precursors, except where intended for purposes not 

prohibited under this Convention, as long as the types and quantities are 

consistent with such purposes; 

(b) Munitions and devices, specifically designed to cause death or other harm 

through the toxic properties of those toxic chemicals specified in subparagraph 

(a), which would be released as a result of the employment of such munitions and 

devices; 

(c) Any equipment specifically designed for use directly in connection with the 

employment of munitions and devices specified in subparagraph (b).181

Toxic chemicals refer to any chemical that through its chemical action on life processes 

can cause death, temporary incapacitation, or permanent harm to humans or animals. This 

includes all such chemicals, regardless of their origin or of their method of production, and 

regardless of whether they are produced in facilities, in munitions, or elsewhere.182 Chemicals 

 178 William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925

GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“It is the United States understanding of the Protocol that it 

does not prohibit the use in war of riot-control agents and chemical herbicides.”).

179 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 248 (¶55) (“The Court 

will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by 

‘poison or poisoned weapons’ and that different interpretations exist on the issue. Nor does the 1925 Protocol 

specify the meaning to be given to the term ‘analogous materials or devices’. The terms have been understood, in 

the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to 

poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to 

nuclear weapons.”).

180 See William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 

1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“Smoke, flame, and napalm are also not covered by the 

Protocol.”); Written Statement of the Government of the United States of America, 25, Jun. 20, 1995, I.C.J., Request 

by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“Once again, the [1925 Geneva Gas and Bacteriological] Protocol does not prohibit conventional 

explosives or incendiary weapons, even though they may produce asphyxiating or poisonous byproducts, and it 

likewise does not prohibit nuclear weapons.”); GREENSPAN, MODERN LAW OF LAND WARFARE 359 (“The use of 

smoke for smoke screens concealing movements and operations could not be considered an infringement of the law 

against gas warfare.”).

181 CHEMICAL WEAPONS CONVENTION art. 2(1).

182 CHEMICAL WEAPONS CONVENTION art. 2(2) (“‘Toxic Chemical’ means: Any chemical which through its 

chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or 
371

that only cause harm to plants, such as herbicides, are not covered.183 In addition, toxic 

chemicals intended for purposes not prohibited by the Chemical Weapons Convention are also 

excluded, so long as they are of a type and quantity consistent with these purposes that are not 

prohibited.

184

Precursor means any chemical reactant (including any key component of a binary or 

multicomponent chemical system) that takes part at any stage in the production by whatever 

method of a toxic chemical.185 Key component of a binary or multicomponent chemical system

means the precursor that plays the most important role in determining the toxic properties of the 

final product and reacts rapidly with other chemicals in the binary or multicomponent system.186

Equipment specifically designed for use directly in connection with the employment of 

such munitions and devices only applies to equipment designed solely for use with chemical 

weapons and does not, for example, include equipment that is designed also for purposes that are 

not prohibited.

187

6.8.3.2 Prohibitions With Respect to Chemical Weapons. Chemical weapons are 

subject to a number of prohibitions. It is prohibited:

• to use chemical weapons;

• to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, 

 

animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless 

of whether they are produced in facilities, in munitions or elsewhere. (For the purpose of implementing this 

Convention, toxic chemicals which have been identified for the application of verification measures are listed in 

Schedules contained in the Annex on Chemicals.)”). See also Article-by-Article Analysis of the Chemical Weapons 

Convention, 9, Attachment to Peter Tarnoff, Acting, Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE 

PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION 9 (“The wording of this definition [in paragraph 

2 of Article 2] is intended to cover toxins, as well as organic and inorganic chemicals, and chemicals produced by 

binary and multicomponent weapons.”).

183 Refer to § 6.17 (Herbicides).

184 Refer to § 6.8.3.4 (Certain Uses of Toxic Chemicals Not Prohibited).

185 CHEMICAL WEAPONS CONVENTION art. 2(3) (“‘Precursor’ means: Any chemical reactant which takes part at any 

stage in the production by whatever method of a toxic chemical. This includes any key component of a binary or 

multicomponent chemical system.”).

186 CHEMICAL WEAPONS CONVENTION art. 2(4) (“‘Key Component of Binary or Multicomponent Chemical 

Systems’ (hereinafter referred to as ‘key component’) means: The precursor which plays the most important role in 

determining the toxic properties of the final product and reacts rapidly with other chemicals in the binary or 

multicomponent system.”).

187 See Article-by-Article Analysis of the Chemical Weapons Convention, 9, Attachment to Peter Tarnoff, Acting, 

Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS 

CONVENTION 9 (“Note that the term ‘directly’ in subparagraph 1(c) is intended to mean ‘solely.’ Thus, dual-use 

munitions and their components are not considered to be chemical weapons provided they do not otherwise meet 

this definition. For example, dual-use munitions may be used to disperse chemicals not prohibited by the 

Convention, such as smoke, provided the munitions have not been specifically designed to cause death through the 

release of toxic chemicals. Also, dual-use weapons systems such as artillery or aircraft that are capable of 

employing chemical weapons are not covered by this definition, and so are not subject to the destruction 

requirements.”).
372

directly or indirectly, chemical weapons to anyone;

• to engage in any military preparations to use chemical weapons; and

• to assist, encourage, or induce, in any way, anyone to engage in any activity prohibited to 

a Party to the Chemical Weapons Convention.188

These prohibitions apply in any circumstances. For example, chemical weapons may not 

be used in international armed conflict and non-international armed conflicts.189 Similarly, 

chemical weapons may not be used in retaliation after a State has suffered from a chemical 

weapons attack, even if that attack has been conducted by a State that is not a Party to the 

Chemical Weapons Convention.

190

6.8.3.3 Obligation to Destroy Certain Chemical Weapons and Chemical Weapons 

Production Facilities. In addition, a Party to the Chemical Weapons Convention has an 

obligation to destroy chemical weapons or chemical weapon production facilities it owns or 

possesses or that are located in a place under its jurisdiction or control.191 If U.S. armed forces 

encounter chemical weapons or chemical weapon production facilities during armed conflict, 

U.S. national authorities should be notified as soon as practicable. In addition, with due regard 

for safety and security considerations, reasonable efforts should be made to secure and retain 

information regarding the chemical weapons.192

6.8.3.4 Certain Uses of Toxic Chemicals Not Prohibited. The Chemical Weapons 

 188 CHEMICAL WEAPONS CONVENTION art. 1(1) (“Each State Party to this Convention undertakes never under any 

circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, 

directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military 

preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any 

activity prohibited to a State Party under this Convention.”).

189 Article-by-Article Analysis of the Chemical Weapons Convention, 4, Attachment to Peter Tarnoff, Acting, Letter 

of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION

4 (“Moreover, the prohibition on the use of chemical weapons extends beyond solely their use in international armed 

conflicts, i.e. chemical weapons may not be used in any type of situation, including purely domestic conflicts, civil 

wars or state-sponsored terrorism. As such, this article closes a loophole in the Geneva Protocol of 1925, which 

covered only uses in war, i.e. international armed conflicts.”).

190 Article-by-Article Analysis of the Chemical Weapons Convention, 4, Attachment to Peter Tarnoff, Acting, Letter 

of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION

4 (“The prohibitions are phrased as undertakings ‘never under any circumstances’ to engage in certain activities 

related to chemical weapons. ... Thus, the prohibitions apply to a State Party even if chemical weapons are used 

against it and even if those chemical weapons are used by a State not Party to the Convention, i.e. even ‘retaliatory 

use’ of chemical weapons is banned.”).

191 CHEMICAL WEAPONS CONVENTION art. 1(2) (“Each State Party undertakes to destroy chemical weapons it owns 

or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of 

this Convention.”); CHEMICAL WEAPONS CONVENTION art. 1(4) (“Each State Party undertakes to destroy any 

chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or 

control, in accordance with the provisions of this Convention.”).

192 See Ireland, Facilitator’s Paper, Concerning the Mandate Created by the Executive Council at its Fifty-Eighth 

Sessions Under the Heading ‘Other Destruction-Related Issues,’ Oct. 8, 2010, Organization for the Prohibition of 

Chemical Weapons Doc. No. EC-62/NAT.11.
373

Convention does not prohibit the use of toxic chemicals and their precursors for certain 

purposes.193 Toxic chemicals and their precursors that are used for these purposes are not 

considered chemical weapons, so long as they are of a type and quantity consistent with these 

permitted purposes.194 These purposes include:

• industrial, agricultural, research, medical, pharmaceutical, or other peaceful purposes; 

• protective purposes, namely those purposes directly related to protection against toxic 

chemicals and to protection against chemical weapons; 

• military purposes not connected with the use of chemical weapons and not dependent on 

the use of the toxic properties of chemicals as a method of warfare; and

• law enforcement, including domestic riot control purposes.195

Seeking to develop and use means of protection against chemical weapons is permissible, 

provided such protection is not intended to facilitate the use of chemical weapons or for other 

purposes prohibited by the Chemical Weapons Convention.196

6.9 BIOLOGICAL WEAPONS

Biological weapons, including bacteriological and toxin weapons, are subject to a number 

of prohibitions and restrictions.

6.9.1 Biological Weapons – Prohibition on Use as a Method of Warfare. It is prohibited 

to use bacteriological methods of warfare.

197 This prohibition includes all biological methods of

 193 CHEMICAL WEAPONS CONVENTION art. 6(1) (“Each State Party has the right, subject to the provisions of this 

Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for 

purposes not prohibited under this Convention.”).

194 Article-by-Article Analysis of the Chemical Weapons Convention, 13, Attachment to Peter Tarnoff, Acting, Letter 

of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION

13 (“Paragraph 9 of Article II defines, in four subparagraphs, the phrase ‘purposes not prohibited under this 

Convention.’ This phrase is important because it forms the basis for many exceptions to obligations or prohibited 

activities. ... This provision means that toxic chemicals and their precursors that are used for one or more of these 

enumerated purposes are not chemical weapons, so long as they are of a type and quantity consistent with these 

permitted purposes.”).

195 CHEMICAL WEAPONS CONVENTION art. 2(9) (“‘Purposes Not Prohibited Under this Convention’ means: (a) 

Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; (b) Protective purposes, 

namely those purposes directly related to protection against toxic chemicals and to protection against chemical 

weapons; (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the 

toxic properties of chemicals as a method of warfare; (d) Law enforcement including domestic riot control 

purposes.”).

196 CHEMICAL WEAPONS CONVENTION art. 10(2) (“Nothing in this Convention shall be interpreted as impeding the 

right of any State Party to conduct research into, develop, produce, acquire, transfer or use means of protection 

against chemical weapons, for purposes not prohibited under this Convention.”).

197 Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969 

PUBLIC PAPERS OF THE PRESIDENTS 968 (“The United States shall renounce the use of lethal biological agents and 

weapons, and all other methods of biological warfare.”); 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL
374

warfare and the use in warfare of toxin weapons.198 For example, it is prohibited to use plague 

as a weapon.199 

A prohibition against the use of biological weapons may be understood to result from 

U.S. obligations in the Biological Weapons Convention to refrain from developing, acquiring, or 

retaining biological weapons.200

Bacteriological or biological warfare is prohibited, at least in part, because it can have 

massive, unpredictable, and potentially uncontrollable consequences.201

6.9.1.1 Toxin Weapons. The term toxin refers to poisonous chemical substances 

that are naturally produced by living organisms, and that, if present in the body, produce effects 

similar to disease in the human body.202 Toxins are not living organisms and thus are not 

 

(The High Contracting Parties agree to prohibit “the use of bacteriological methods of warfare and agree to be 

bound as between themselves according to the terms of this declaration.”).

198 William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925

GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“The United States considers the term ‘bacteriological methods 

of warfare’ as used in the Protocol encompasses all biological methods of warfare and the use in warfare of toxins 

however produced.”).

199 For example, Verdict of the Military Tribunal, MATERIALS ON THE TRIAL OF FORMER SERVICEMEN OF THE 

JAPANESE ARMY CHARGED WITH MANUFACTURING AND EMPLOYING BACTERIOLOGICAL WEAPONS 529-30 (1950) 

(“The Japanese imperialists employed bacteriological weapons in the war against China and in sabotage raids 

against the U.S.S.R. In 1940 a special expedition of Detachment 731 commanded by General Ishii was despatched 

to the theatre of hostilities in Central China, where, by dropping plague-infected fleas from aircraft with special 

apparatus, it caused a plague epidemic in the Nimpo area. This criminal operation which brought in its wake 

thousands of victims among the peaceful Chinese population was filmed, and this film was later demonstrated in 

Detachment 731 to representatives of the High Command of the Japanese Army, among the accused Yamada.”).

200 William P. Rogers, Report of the Secretary of State, Jun. 21, 1972, MESSAGE FROM THE PRESIDENT OF THE 

UNITED STATES TRANSMITTING THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, AND 

STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS, AND ON THEIR DESTRUCTION, OPENED 

FOR SIGNATURE AT WASHINGTON, LONDON AND MOSCOW ON APRIL 10, 1972, EXECUTIVE Q, 3 (1972) (“While this 

Convention does not explicitly ban the use of biological weapons, no Party to the Convention would be permitted to 

possess such weapons even in wartime. There is no possibility that a Party could use biological or toxin weapons 

without being in violation of Articles I and II of this Convention.”). Refer to § 6.9.2 (Biological Weapons –

Prohibition on Development, Acquisition, or Retention).

201 Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969

PUBLIC PAPERS OF THE PRESIDENTS 968 (“Biological weapons have massive, unpredictable and potentially 

uncontrollable consequences. They may produce global epidemics and impair the health of future generations.”); 

1976 AIR FORCE PAMPHLET 110-31 ¶6-4(b) (“The wholly indiscriminate and uncontrollable nature of biological 

weapons has resulted in the condemnation of biological weapons by the international community, and the practice of 

states in refraining from their use in warfare has confirmed this rule.”); ICRC AP COMMENTARY 623 (¶1965) 

(“There are some weapons which by their very nature have an indiscriminate effect. The example of bacteriological 

means of warfare is an obvious illustration of this point.”).

202 William P. Rogers, Report of the Secretary of State, Jun. 21, 1972, MESSAGE FROM THE PRESIDENT OF THE 

UNITED STATES TRANSMITTING THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, AND 

STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS, AND ON THEIR DESTRUCTION, OPENED 

FOR SIGNATURE AT WASHINGTON, LONDON AND MOSCOW ON APRIL 10, 1972, EXECUTIVE Q, 3 (1972) (“Toxins are 

poisonous chemical substances which are naturally produced by living organisms and which, if present in the body, 

produce effects comparable to those of infection by hostile organisms.”).
375

capable of reproducing themselves and transmissible from one person to another.203

Toxin weapons have been regulated in connection with biological weapons because they 

have been produced in facilities similar to those used for the production of biological agents.204 

However, even toxins that are produced synthetically, and not through biological processes, fall 

within these prohibitions. Substances that are classified as “toxins” for the purpose of applying 

the requirements of the Biological Weapons Convention may also be classified as “chemical 

weapons” that are subject to the requirements of the Chemical Weapons Convention.205

6.9.2 Biological Weapons – Prohibition on Development, Acquisition, or Retention. It is 

also prohibited to develop, produce, stockpile, or otherwise acquire or retain: 

• microbial or other biological agents, or toxins whatever their origin or method of 

production, of types and in quantities that have no justification for prophylactic,

protective, or other peaceful purposes; or 

• weapons, equipment or means of delivery designed to use such agents or toxins for 

hostile purposes or in armed conflict.206

6.9.3 Biological Weapons – Prohibition on Transfer or Assisting, Encouraging, or 

Inducing the Manufacture or Acquisition. It is also prohibited to transfer or to assist, encourage, 

or induce others to acquire biological weapons.207

 203 Office of the White House Press Secretary, The United States renounces offensive preparations for and the use of 

toxins as a method of warfare, Feb. 14, 1970, reprinted in DEPARTMENT OF STATE, FOREIGN RELATIONS OF THE 

UNITED STATES, 1969-1976, VOLUME E-2, DOCUMENTS ON ARMS CONTROL, 1969-1972, Document 189 (2007) 

(“Toxins are chemical substances, not living organisms, and are so regarded by the U.N. Secretary General and the 

World Health Organization. Although the effects of some toxins are commonly described as disease, they are not 

capable of reproducing themselves and are not, transmissible from one person to another.”).

204 Office of the White House Press Secretary, The United States renounces offensive preparations for and the use of 

toxins as a method of warfare, Feb. 14, 1970, reprinted in DEPARTMENT OF STATE, FOREIGN RELATIONS OF THE 

UNITED STATES, 1969-1976, VOLUME E-2, DOCUMENTS ON ARMS CONTROL, 1969-1972, Document 189 (2007) 

(“However, the production of toxins in any significant quantity would require facilities similar to those needed for 

the production of biological agents. If the United States continued to operate such facilities, it would be difficult for 

others to know whether they were being used to produce only toxins but not biological agents. Moreover, though 

toxins of the type useful for military purposes could conceivably be produced by chemical synthesis in the future, 

the end products would be the same and their effects would be indistinguishable from toxins produced by 

bacteriological or other biological processes.”).

205 Refer to § 6.8.3.1 (Definition of Chemical Weapons).

206 BIOLOGICAL WEAPONS CONVENTION art. 1 (“Each State Party to this Convention undertakes never in any 

circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) microbial or other biological agents, 

or toxins whatever their origin or method of production, of types and in quantities that have no justification for 

prophylactic, protective or other peaceful purposes; (2) weapons, equipment or means of delivery designed to use 

such agents or toxins for hostile purposes or in armed conflict.”).

207 BIOLOGICAL WEAPONS CONVENTION art. 3 (“Each State Party to this Convention undertakes not to transfer to 

any recipient whatsover [sic], directly or indirectly, and not in any way to assist, encourage, or induce any State, 

group of States or international organisations to manufacture or otherwise acquire any of the agents, toxins, 

weapons, equipment or means of delivery specified in Article I of the Convention.”).
376

The exchange of equipment, materials, and scientific and technological information for 

the use of bacteriological and biological agents and toxins for peaceful purposes, such as the 

prevention of disease, however, is not restricted.

208

6.10 CERTAIN ENVIRONMENTAL MODIFICATION TECHNIQUES

It is prohibited to use environmental modification techniques having widespread, longlasting, or severe effects as a means of destruction, damage, or injury to another Party to the 

ENMOD Convention.209 In addition, it is prohibited to assist, encourage, or induce others to use 

such environmental modification techniques against a Party to the ENMOD Convention.210

6.10.1 Environmental Modification Techniques. “Environmental modification 

techniques” refers to any technique for changing through the deliberate manipulation of natural 

processes the dynamics, composition, or structure of the earth, including its biota, lithosphere, 

hydrosphere and atmosphere, or of outer space.211 

6.10.2 Having Widespread, Long-Lasting, or Severe Effects. The techniques must have 

widespread, long-lasting, or severe effects. These terms are interpreted as follows:

(a) “widespread”: encompassing an area on the scale of several hundred square 

kilometers; 

(b) “long-lasting”: lasting for a period of months, or approximately a season;

(c) “severe”: involving serious or significant disruption or harm to human life, 

 208 BIOLOGICAL WEAPONS CONVENTION art. 10(1) (“The States Parties to this Convention undertake to facilitate, and 

have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological 

information for the use of bacteriological (biological) agents and toxins for peaceful purposes. Parties to the 

Convention in a position to do so shall also co-operate in contributing individually or together with other States or 

international organisations to the further development and application of scientific discoveries in the field of 

bacteriology (biology) for the prevention of disease, or for other peaceful purposes.”); BIOLOGICAL WEAPONS 

CONVENTION art. 10(2) (“This Convention shall be implemented in a manner designed to avoid hampering the 

economic or technological development of States Parties to the Convention or international co-operation in the field 

of peaceful bacteriological (biological) activities, including the international exchange of bacteriological (biological) 

agents and toxins and equipment for the processing, use or production of bacteriological (biological) agents and 

toxins for peaceful purposes in accordance with the provisions of the Convention.”).

209 ENMOD CONVENTION art. 1(1) (“Each State Party to this Convention undertakes not to engage in military or any 

other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the 

means of destruction, damage or injury to any other State Party.”).

210 ENMOD CONVENTION art. 1(2) (“Each State Party to this Convention undertakes not to assist, encourage or 

induce any State, group of States or international organization to engage in activities contrary to the provisions of 

paragraph 1 of this article.”).

211 ENMOD CONVENTION art. 2 (“The term ‘Environmental modification techniques’ refers to any technique for 

changing through the deliberate manipulation of natural processes the dynamics, composition or structure of the 

earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.”).
377

natural and economic resources, or other assets.212

For example, earthquakes, tsunamis, and cyclones are environmental effects likely to be 

widespread, long-lasting, or severe that could be caused by the use of environmental 

modification techniques.213 On the other hand, dispelling fog to facilitate military or combat

operations may involve the use of environmental modification techniques that would not have

widespread, long-lasting, or severe effects.

214

6.10.3 As a Means of Destruction, Damage, or Injury. In order to fall within the 

ENMOD Convention’s prohibitions, the environmental modification techniques must be used as 

a means of destruction, damage, or injury to another Party to the ENMOD Convention. The 

ENMOD Convention does not prohibit damage to the environment, but reflects the idea that the 

environment itself should not be used as an instrument of war.215

Weapons or military operations may incidentally have widespread, long-lasting, or severe 

 212 Cyrus Vance, Letter of Submittal, Aug. 31, 1978, MESSAGE FROM THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING THE CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF 

ENVIRONMENTAL MODIFICATION TECHNIQUES, SIGNED AT GENEVA ON MAY 18, 1977, EXECUTIVE K, 4 (1978) 

(“According to the Understanding related to this Article the terms ‘widespread, long-lasting and severe’, for 

purposes of this Convention only, are to be interpreted as follows: (a) ‘widespread’: encompassing an area on the 

scale of several hundred square kilometers; (b) ‘long-lasting’: lasting for a period of months, or approximately a 

season; (c) ‘severe’: involving serious or significant disruption or harm to human life, natural and economic 

resources or other assets.”). See also U.N. Conference of the Committee on Disarmament, New York, U.S., Dec. 

10, 1976, Report of the Conference of the Committee on Disarmament: Official records: Thirty-first session, 

Supplement No. 27 92 U.N. Doc A/31/27 (Vol I) (1976) (“Referring to suggestions at the previous year’s session 

and at the General Assembly that the phrase ‘having widespread, long-lasting or severe effects’ be eliminated, the 

delegation of the United States held that the phrase was necessary to ensure that the ban could be implemented 

successfully and would not give rise to friction over trivial issues: the phrase served to avoid the risk of unprovable 

claims of violation while eliminating the use of techniques with significant effects.”).

213 See U.N. Conference of the Committee on Disarmament, Report of the Conference of the Committee on 

Disarmament, U.N. Official records: Thirty-First Session, Supplement No. 27, U.N. Doc A/31/27 (Vol I) 92 (Dec. 

10, 1976) (“It is the understanding of the Committee that the following examples are illustrative of phenomena that 

could be caused by the use of environmental modification techniques as defined in article II of the Convention: 

earthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, 

precipitation, cyclones of various types and tornadic storms); changes in climate patterns; changes in ocean currents; 

changes in the state of the ozone layer; and changes in the state of the ionosphere.”).

214 Rear Admiral Edward F. Welch, Jr., Deputy Director for International Negotiations, Plans and Policy Directorate, 

Joint Chiefs of Staff, Environmental Modication Treaty: Hearing Before the Committee on Foreign Relations, U.S. 

Senate, Ninety-Fifth Congress, Second Session, 31 (Oct. 3, 1978) (“I think the Joint Chiefs of Staff prefer to have 

this threshold treaty with these stipulations in it rather than a complete foreclosure of any military options. The 

example I might cite, that was in the testimony given to this committee in 1974 was the case of the situation in 

Belgium during the Battle of the Bulge where they had the opportunity and, had the technique been available for 

cutting and dispelling the fog that attended that battle, it could have been done in 30 to 40 minutes. Dispelling the 

fog that was there preventing the resupply of our units is now within the technology of limiting fog.”).

215 Michael Moodie, United States Arms Control and Disarmament Agency, Statement before the Second Review 

Conference of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental 

Modification Techniques (Sept. 15, 1992) (“The Environmental Modification Convention is not an Environmental 

Protection Treaty; it is not a treaty to prohibit damage to the environment resulting from armed conflict. Rather, the 

Environmental Modification Convention fills a special, but important niche reflecting the international community’s 

consensus that the environment itself should not be used as an instrument of war.”).
378

effects on the environment. Such weapons and military operations are not prohibited by the 

ENMOD Convention because the harm to the environment is incidental and not intended to be 

used as a means of destruction, damage, or injury to another Party to the ENMOD Convention. 

For example, nuclear weapons are not prohibited by the ENMOD Convention because their 

effects on the environment are a by-product of their use rather than intended as a means of 

injuring the enemy.216

6.10.3.1 AP I Provisions on Environmental Protection. In contrast to the 

ENMOD Convention’s prohibition against using certain environmental modification techniques 

as a means of destruction, damage, or injury, two provisions of AP I specifically address the 

protection of the environment. Article 35(3) of AP I provides that “[i]t is prohibited to employ 

methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” Article 55 of AP I provides: 

Protection of the natural environment: (1) Care shall be taken in warfare to 

protect the natural environment against widespread, long-term and severe 

damage. This protection includes a prohibition of the use of methods or means of 

warfare which are intended or may be expected to cause such damage to the 

natural environment and thereby to prejudice the health or survival of the 

population. (2) Attacks against the natural environment by way of reprisals are 

prohibited. 

The United States has not accepted these provisions217 and has repeatedly expressed the 

view that these provisions are “overly broad and ambiguous and ‘not a part of customary 

law.’”218 Articles 35(3) and 55 of AP I “fail to acknowledge that use of such weapons is 

 216 Written Statement of the Government of the United States of America, 29, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 

Weapons (“Although one might imagine a hypothetical use of nuclear weapons to create an environmental 

modification technique (for example, to cause an earthquake or tidal wave), the Convention does not prohibit other 

uses of nuclear weapons (or any other weapon), even if they cause serious damage to the environment. Only the 

‘deliberate manipulation’ of environmental forces to cause destruction is covered.”).

217 See, e.g., Mark Simonoff, Minister Counselor, U.S. Mission to the United Nations, Remarks at the 70th UN 

General Assembly Sixth Committee on Agenda Item 83: Report of the International Law Commission on the Work 

of its 67th Session, Nov. 11, 2015, 2015 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 287 

(“Relatedly, we are troubled by the presence among the principles of rules extracted from certain treaties that we do 

not believe reflect customary law. For example, draft principle II-4 repeats a prohibition in Additional Protocol I, 

AP I, on attacks against the natural environment by way of reprisals that we do not believe exists as a matter of 

customary international law. To the extent the rule is offered to encourage normative development, we remain in 

disagreement with it, consistent with the objections we have stated on other occasions.”); United States, Statement 

on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482, 483 (“The United States 

considers that the fourth paragraph of the preamble to the Convention, which refers to the substance of provisions of 

article 35 (3) and article 55 (1) of additional Protocol I to the Geneva Conventions for the Protection of War Victims 

of August 12, 1949, applies only to States which have accepted those provisions.”).

218 U.S. RESPONSE TO ICRC CIHL STUDY 521 (“France and the United States repeatedly have declared that Articles 

35(3) and 55 of AP I, from which the Study derives the first sentence of rule 45, do not reflect customary 

international law. In their instruments of ratification of the 1980 CCW, both France and the United States asserted 

that the preambular paragraph in the CCW treaty, which refers to the substance of Articles 35(3) and 55, applied 

only to States that have accepted those articles. The U.S. State Department Principal Deputy Legal Adviser stated 
379

prohibited only if their use is clearly excessive in relation to the concrete and direct overall 

military advantage anticipated.”219 

6.10.4 Environmental Modification Techniques for Peaceful Purposes. The ENMOD 

Convention does not hinder the use of environmental modification techniques for peaceful 

purposes.220

6.11 WEAPONS INJURING BY FRAGMENTS NOT DETECTABLE BY X-RAYS

It is prohibited to use any weapon the primary effect of which is to injure by fragments 

that in the human body escape detection by X-rays.

221

6.11.1 Primary Effect. The prohibition requires that the fragments that are intended to 

cause injury be made of materials that are detectable in the human body by X-rays. 

Portions of many munitions, such as the casing, detonator, or timing mechanism, may be 

made of nonmetallic parts or other substances that are not detectable by X-rays in order to reduce 

weight, manufacturing costs, etc. These munitions are not prohibited because their primary 

effect is not to injure by fragments that in the human body escape detection by X-rays.

222 

6.11.2 Fragments That Injure by Penetrating the Human Body. The prohibition applies 

only to weapons that are intended to injure by penetrating the human body. Thus, for example, a 

weapon that employs rubber projectiles that are unlikely to penetrate the skin need not be 

detectable by X-rays.

 

during a conference in 1987 that the United States considered Articles 35 and 55 to be overly broad and ambiguous 

and ‘not a part of customary law.’”).

219 U.S. RESPONSE TO ICRC CIHL STUDY 528 endnote 30 (“An example illustrates why States – particularly those 

not party to AP I – are unlikely to have supported rule 45. Suppose that country A has hidden its chemical and 

biological weapons arsenal in a large rainforest, and plans imminently to launch the arsenal at country B. Under 

such a rule, country B could not launch a strike against that arsenal if it expects that such a strike may cause 

widespread, long-term, and severe damage to the rainforest, even if it has evidence of country A’s imminent launch, 

and knows that such a launch itself would cause environmental devastation.”).

220 ENMOD CONVENTION art. 3(1) (“The provisions of this Convention shall not hinder the use of environmental 

modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles 

and applicable rules of international law concerning such use.”).

221 CCW PROTOCOL I (“It is prohibited to use any weapon the primary effect of which is to injure by fragments 

which in the human body escape detection by X-rays.”).

222 Canada, Statement on Ratification of CCW, Accepting Protocols I, II, & III, Jun. 24, 1994, 1787 UNTS 501 

(“With respect to Protocol I, it is the understanding of the Government of Canada that the use of plastics or similar 

materials for detonators or other weapons parts not designed to cause injury is not prohibited.”). For example, W. 

Hays Parks, Memorandum re: Advanced Combat Rifle; Request for Legal Review, ¶6 (May 21, 1990), reprinted in

THE ARMY LAWYER 18, 20 (Jul. 1990) (“[B]oth the AAI and Steyr-Mannlicher ammunition employ liquid crystal 

polymers in the sabot that holds the flechette in place. It is not necessary to determine whether liquid crystal 

polymers are detectable by x-ray, as the sabot in each round is employed for effects other than injury to combatants. 

(The wounding capability of the sabot is extremely limited, as it separates from the flechette, quickly loses its force, 

and falls to the ground within one hundred feet of the muzzle.) The negotiation history of the UNCCW Protocol I is 

clear that its prohibition would not extend to the polymer sabot in the AAI and Steyr ammunition.”).
380

6.11.3 Fragments Escaping Detection by X-Rays. The fragments must not be such that 

they escape detection by X-rays. For example, a member of the armed forces engaged in the 

authorized construction and/or employment of field-improvised booby-traps may not use glass 

for fragments for the purpose of wounding enemy personnel.223

In some cases, the fragments that otherwise would not be detectable by X-rays may be 

modified in order to ensure that they would be detectable by X-rays. For example, projectiles 

may be modified with a substance, such as barium sulfate, so that they are readily detectable by 

X-rays if they happen to penetrate the skin.224

6.12 LANDMINES, BOOBY-TRAPS, AND OTHER DEVICES

As a class of weapons, landmines, booby-traps, and other devices are not specifically 

prohibited under the law of war. However, certain landmines, booby-traps, and other devices are 

prohibited. In addition, the use of landmines, booby-traps, and other devices is subject to certain 

restrictions that the United States has accepted in the CCW Amended Mines Protocol.

6.12.1 Definition of Mine. The CCW Amended Mines Protocol defines a “mine” as “a 

munition placed under, on, or near the ground or other surface area and designed to be exploded 

by the presence, proximity or contact of a person or vehicle.”225 The term “mine” thus includes 

both anti-personnel and anti-vehicle mines, including anti-tank mines. 

The mines to which the CCW Amended Mines Protocol relate are those used on land, 

including those laid to interdict beaches, waterway crossings, or river crossings, but do not 

include the use of anti-ship mines at sea or in inland waterways.226 The rules on naval mines are 

addressed in § 13.11 (Naval Mines).

The term “mine” does not include hand grenades.227 A trip-wired hand grenade is not 

 223 Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

224 W. Hays Parks, Means and Methods of Warfare, 38 THE GEORGE WASHINGTON INTERNATIONAL LAW REVIEW

511, 524 note 53 (2006) (“In 1998, the author conducted the legal review of the Modular Crowd Control Munition, a 

less-lethal version of the M18 Claymore mine containing rubber instead of steel projectiles. While the chance of the 

rubber projectiles penetrating the skin was negligible, the rubber projectiles were implanted with 5 percent Barium 

Sulfate to make them detectable by x-ray and compliant with Protocol I of the UNCCW. See Office of The Judge 

Advocate General of the Army, Memorandum of Law: Legal Review of Modular Crowd Control Munition 

(MCCM) (Oct. 13, 1998) [hereinafter DAJA-IO: Modular Crowd Control Munition].”) (insertion in original).

225 CCW AMENDED MINES PROTOCOL art. 2(1) (“‘Mine’ means a munition placed under, on or near the ground or 

other surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle.”).

226 CCW AMENDED MINES PROTOCOL art. 1(1) (“This Protocol relates to the use on land of the mines, booby-traps 

and other devices, defined herein, including mines laid to interdict beaches, waterway crossings or river crossings, 

but does not apply to the use of anti-ship mines at sea or in inland waterways.”).

227 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - ... (C) 

none of the provisions of the Amended Mines Protocol, including Article 2 (5), applies to hand grenades other than 

trip-wired hand grenades.”).
381

considered a mine, but is considered a booby-trap under the CCW Amended Mines Protocol.228

6.12.1.1 Notes on Terminology - “Landmines” Versus “Mines”. The CCW 

Amended Mines Protocol uses the term “mines,” but does not address naval mines. This section 

uses the term “mines” to refer to landmines, including both anti-personnel and anti-vehicle 

mines. 

6.12.1.2 Designed to Be Exploded by the Presence, Proximity, or Contact of a 

Person or Vehicle. An important characteristic of a mine is its designed function of being 

exploded by the presence, proximity, or contact of a person or vehicle.229 Command-detonated 

munitions (i.e., munitions whose explosion is triggered by a decision of an operator) are not 

“mines” under the CCW Amended Mines Protocol, but may be regulated under the CCW 

Amended Mines Protocol as “other devices.”230

Some munitions, such as the Claymore, may be configured for detonation by command, 

or by trip-wire. When used in trip-wire mode, they are mines and subject to corresponding 

restrictions. When used in command-detonated mode, they are subject to the restrictions 

applicable to “other devices.”231

The design function of being activated by the target also distinguishes a mine from 

unexploded ordnance that results from the malfunction of a munition.232 Other rules address 

 228 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - ... (B) a 

trip-wired hand grenade shall be considered a ‘booby-trap’ under Article 2(4) of the Amended Mines Protocol and 

shall not be considered a ‘mine’ or an ‘anti-personnel mine’ under Article 2(1) or 2(3), respectively;”). Refer to

§ 6.12.2 (Definition of Booby-Trap).

229 Article-by-Article Analysis of CCW Amended Mines Protocol, 5, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 5 (“The definition also 

contemplates that mines can be emplaced in a variety of ways -- under, on or near the ground or other surface area. 

This makes clear that the critical defining characteristic of a mine is not its relationship to the ground or other 

surface area but rather its design function of being exploded by the presence, proximity or contact of a target, be that 

target a person or a vehicle. (This applies whether a munition is designed for this purpose in the factory, or adapted 

for this purpose in the field.)”).

230 Refer to § 6.12.10 (Rule for Using Booby-Traps and Other Devices).

231 Article-by-Article Analysis of CCW Amended Mines Protocol, 7, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7 (“With respect to 

anti-personnel mines which have the potential to be either trip-wired or command-detonated, the definition applies 

when such mines are used with a trip-wire or are otherwise target-activated. When such mines are commanddetonated, that is, exploded not by the target itself, but by an operator, they do not meet the definition of 

antipersonnel mine and are therefore not subject to the restrictions imposed on anti-personnel mines. They do, 

however, fall within the definition of ‘other devices’ in paragraph 7.”).

232 Article-by-Article Analysis of CCW Amended Mines Protocol, 5, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 5 (“It is also this 

characteristic, i.e. that the munition is designed to be activated by the target, that distinguishes a mine from so-called 

unexploded ordinance [sic] or UXO. UXO is not covered by the Protocol, either the 1980 or the amended version. 

Unexploded ordinance [sic] is a result of a malfunction of a munition; UXO is not ‘designed’ in any sense, and, in 
382

unexploded ordnance.233

6.12.1.3 Anti-Personnel Mines. Under the CCW Amended Mines Protocol, an 

“anti-personnel mine” is a mine primarily designed to be exploded by the presence, proximity, or 

contact of a person and that will incapacitate, injure, or kill one or more persons.234 

“Primarily” was added to ensure that anti-vehicle mines equipped with anti-handling 

devices (which often cause the mine to detonate by contact of a person) are not treated as antipersonnel mines under the CCW Amended Mines Protocol.235

Another element in the definition of “anti-personnel mine” is its effect of incapacitating, 

injuring, or killing one or more persons. This description was understood to be broad enough to 

cover the range of hazards posed by anti-personnel mines, but the term “incapacitating” means 

permanent incapacity.236 Thus, the definition of “mine” for the purposes of the CCW Amended 

Mines Protocol does not include non-lethal weapon technology that is designed temporarily to 

disable, stun, or signal the presence of a person, but not to cause permanent incapacity.237

 

particular, is not designed to be detonated by the presence, proximity or contact of person. Although UXO presents 

a serious problem that requires concerted attention, it is a problem outside the scope of Protocol II.”).

233 Refer to § 6.20 (Explosive Remnants of War).

234 CCW AMENDED MINES PROTOCOL art. 2(3) (“‘Anti-personnel mine’ means a mine primarily designed to be 

exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more 

persons.”).

235 Article-by-Article Analysis of CCW Amended Mines Protocol, 6-7, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 6-7 (“The first is the 

word ‘primarily’ in the phrase ‘primarily designed’. This element was added to ensure that anti-tank mines 

equipped with anti-handling devices are not treated as anti-personnel mines. This was an important consideration 

for U.S. military operations. Anti-personnel mines are frequently used in conjunction with anti-tank mines to 

protect anti-tank mines against enemy removal during military operations. With increasing restrictions on the use of 

anti-personnel mines, it was clear, from a military perspective, that alternative means of protecting anti-tank mines 

against enemy removal during combat operations would be increasingly important. One such common alternative is 

to equip anti-tank mines with anti-handling devices. But since such devices are, as a practical matter, intended to 

cause an anti-tank mine to detonate if handled by a person, there was concern that an anti-tank mine equipped with 

an anti-handling device would inadvertently fall within the definition of an anti-personnel mine, and be subject, 

therefore, to the additional constraints imposed on anti-personnel mines. Adding the word ‘primarily’ before 

‘designed’ clarified that anti-tank mines that are equipped with anti-handling devices are not considered antipersonnel mines as a result of being so equipped. This language was not intended to exclude from the restrictions on 

anti-personnel mines any munition designed to perform the function of an anti-personnel mine.”).

236 Article-by-Article Analysis of CCW Amended Mines Protocol, 7, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7 (“The second 

additional element in the anti-personnel mine definition is the reference to incapacitating, injuring or killing one or 

more persons. This description was understood to be broad enough to cover the range of hazards posed by antipersonnel mines. Additionally, the term ‘incapacitating’ does not restrict non-lethal weapon technology that may 

temporarily disable, stun or signal the presence of person but not cause permanent incapacity.”).

237 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“The United States understands that nothing in the Amended Mines Protocol may be construed as 
383

6.12.1.4 Mines Other Than Anti-Personnel Mines. The CCW Amended Mines 

Protocol uses the term “mines other than anti-personnel mines” to refer to anti-vehicle mines. 

“Anti-vehicle mines” or “mines other than anti-personnel mines” are also sometimes referred to 

as anti-tank mines.238

The CCW Amended Mines Protocol defines “mine” in terms of a munition that is 

designed to be exploded by a person or vehicle.239 Thus, “mines other than anti-personnel 

mines” are anti-vehicle mines.240

6.12.1.5 Remotely Delivered Mines. “Remotely-delivered mine” means a mine 

that is not directly emplaced, but is instead delivered by artillery, missile, rocket, mortar, or 

similar means, or dropped from an aircraft.

241

Mines delivered from a land-based system from less than 500 meters, however, are not 

considered to be remotely delivered, provided that they are used in accordance with Article 5 and 

other relevant articles of the CCW Amended Mines Protocol.

242 These mines were excluded

from the definition of remotely delivered mines because, when delivered in the prescribed 

manner, they can be accurately marked and precautions to protect civilians can be reliably 

maintained.

6.12.1.6 Mines With Compliant Self-Destruction and Self-Deactivation (SD/SDA)

Mechanisms. Certain types of mines may be equipped with self-destruction or self-neutralization 

mechanisms, or be self-deactivating.

“Self-destruction [SD] mechanism” means an incorporated or externally attached 

automatically functioning mechanism that secures the destruction of the munition into which it is 

 restricting or affecting in any way non-lethal weapon technology that is designed to temporarily disable, stun, signal 

the presence of a person, or operate in any other fashion, but not to cause permanent incapacity.”).

238 Article-by-Article Analysis of CCW Amended Mines Protocol, 8, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 8 (“Finally, the term 

‘anti-tank mine’ is not used or defined in the amended Protocol; such mines are referred to by the use of the phrase 

‘mines other than anti-personnel mines,’ which includes all mines designed to be exploded by the presence, 

proximity or contact of a vehicle. This formulation flows from the definitions for ‘mine’ and ‘anti-personnel mine’ 

when read in light of each other. Throughout this analysis mines other than anti-personnel mines are also referred to 

as anti-tank mines.”).

239 CCW AMENDED MINES PROTOCOL art. 2(1) (“‘Mine’ means a munition placed under, on or near the ground or 

other surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle.”).

240 See CCW AMENDED MINES PROTOCOL art. 2(3) (“‘Anti-personnel mine’ means a mine primarily designed to be 

exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more 

persons.”).

241 CCW AMENDED MINES PROTOCOL art. 2(2) (“‘Remotely-delivered mine’ means a mine not directly emplaced but 

delivered by artillery, missile, rocket, mortar, or similar means, or dropped from an aircraft.”).

242 CCW AMENDED MINES PROTOCOL art. 2(2) (“Mines delivered from a land-based system from less than 500 

metres are not considered to be ‘remotely delivered’, provided that they are used in accordance with Article 5 and 

other relevant Articles of this Protocol.”).
384

incorporated or to which it is attached.243

“Self-neutralization mechanism” means an incorporated automatically functioning 

mechanism that renders inoperable the munition into which it is incorporated.244 The term is 

used in Article 6 of the CCW Amended Mines Protocol in relation to remotely delivered mines 

other than anti-personnel mines. There are no technical specifications for self-neutralization 

mechanisms in the Technical Annex to the CCW Amended Mines Protocol.

245

“Self-deactivating” (SDA) means automatically rendering a munition inoperable by 

means of the irreversible exhaustion of a component; for example, a battery that is essential to 

the operation of the munition could be exhausted as part of a self-deactivating mine.

246 

6.12.2 Definition of Booby-Trap. Under the CCW Amended Mines Protocol, a “boobytrap” means any device or material that is designed, constructed, or adapted to kill or injure, and 

that functions when a person disturbs or approaches an apparently harmless object or performs 

an apparently safe act.247

This includes field-expedient devices, e.g., a hand grenade attached to a door and rigged 

to explode when the door is opened (as opening a door is an apparently safe act), as well as 

devices designed in advance to function as booby-traps (such as explosive devices designed to 

resemble civilian objects).248

6.12.3 Definition of “Other Devices” Similar to Mines. “Other devices” in the CCW 

Amended Mines Protocol means manually emplaced munitions and devices, including 

improvised explosive devices, designed to kill, injure, or damage, and which are actuated 

 243 CCW AMENDED MINES PROTOCOL art. 2(10) (“‘Self-destruction mechanism’ means an incorporated or externally 

attached automatically-functioning mechanism which secures the destruction of the munition into which it is 

incorporated or to which it is attached.”).

244 CCW AMENDED MINES PROTOCOL art. 2(11) (“‘Self-neutralization mechanism’ means an incorporated 

automatically-functioning mechanism which renders inoperable the munition into which it is incorporated.”).

245 Article-by-Article Analysis of CCW Amended Mines Protocol, 9, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 9 (“The term is used in 

Article 6 in relation to remotely-delivered mines other than anti-personnel mines. There are no technical 

specifications for self-neutralization mechanisms in the Technical Annex.”).

246 CCW AMENDED MINES PROTOCOL art. 2(12) (“‘Self-deactivating’ means automatically rendering a munition 

inoperable by means of the irreversible exhaustion of a component, for example, a battery, that is essential to the 

operation of the munition.”).

247 CCW AMENDED MINES PROTOCOL art. 2(4) (“‘Booby-trap’ means any device or material which is designed, 

constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an 

apparently harmless object or performs an apparently safe act.”).

248 Article-by-Article Analysis of CCW Amended Mines Protocol, 8, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 8 (“[Paragraph 4 of 

Article 2 of the CCW Amended Mines Protocol] is understood to include, for example, a hand-grenade when 

attached to a door and rigged to explode when the door opens, as well as devices designed in advance to function as 

booby-traps.”).
385

manually, by remote control, or automatically after a lapse of time.249

“Other devices” do not include munitions and devices that are not manually emplaced, 

such as munitions that are remotely delivered. 

“Other devices” do not include hand grenades.250 However, trip-wired hand grenades are 

regulated as booby traps.251

6.12.4 Prohibited Classes of Mines, Booby-Traps, and Other Devices. Certain types of 

mines, booby-traps, and other devices are prohibited. These types include:

• mines, booby-traps, and other devices calculated to cause superfluous injury;252

• mines, booby-traps, and other devices specifically designed to detonate during detection 

operations;253

• self-deactivating mines with anti-handling devices designed to function after the mine’s 

operation;

254

• non-detectable anti-personnel mines;255

• remotely delivered mines without compliant self-destruction and self-deactivation 

mechanisms;256

• remotely delivered mines other than anti-personnel mines without a feasible SD/SDA 

mechanism;

257

 249 CCW AMENDED MINES PROTOCOL art. 2(5) (“‘Other devices’ means manually-emplaced munitions and devices 

including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by 

remote control or automatically after a lapse of time.”).

250 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - ... (C) 

none of the provisions of the Amended Mines Protocol, including Article 2 (5), applies to hand grenades other than 

trip-wired hand grenades.”).

251 Refer to § 6.12.2 (Definition of Booby-Trap).

252 Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

253 Refer to § 6.12.4.2 (Mines, Booby-Traps, and Other Devices Specifically Designed to Detonate During Detection 

Operations).

254 Refer to § 6.12.4.3 (Self-Deactivating Mines With Anti-Handling Devices Designed to Function After the Mine’s 

Operation).

255 Refer to § 6.12.4.4 (Non-Detectable Anti-Personnel Mines).

256 Refer to § 6.12.4.5 (Remotely Delivered Anti-Personnel Mines Not in Compliance With Self-Destruction and 

Self-Deactivation Requirements).

257 Refer to § 6.12.4.6 (Remotely Delivered Mines Other Than Anti-Personnel Mines Without a Feasible SD/SDA 

Mechanism).
386

• mines produced after December 3, 1998, without identifying information;258

• booby-traps and other devices in the form of apparently harmless portable objects 

specifically designed to explode;259 and

• certain types of prohibited booby-traps and other devices.260

6.12.4.1 Mines, Booby-Traps, and Other Devices Calculated to Cause 

Superfluous Injury. As with other weapons, it is prohibited in all circumstances to use any mine, 

booby trap, or other device that is designed or of a nature to cause superfluous injury or 

unnecessary suffering.

261

For example, mines and booby-traps filled with shards of glass as their primary wounding 

mechanism would violate this prohibition. Such a weapon would be regarded as calculated to 

cause superfluous injury because the shards would be undetectable by X-rays and would hinder 

the medical treatment of the wound without offering any corresponding military advantage.262 In 

addition, such a weapon would be prohibited on the grounds that it used fragments nondetectable by X-rays.

263

6.12.4.2 Mines, Booby-Traps, and Other Devices Specifically Designed to 

Detonate During Detection Operations. It is prohibited to use mines, booby-traps, and other 

devices that employ a mechanism or device specifically designed to detonate the munition by the 

presence of commonly available mine detectors as a result of their magnetic or other non-contact 

influence during normal use in detection operations.264

This rule only applies to mines, booby-traps, and other devices that are specifically 

 258 Refer to § 6.12.4.7 (Mines Produced After December 3, 1998, Without Identifying Information).

259 Refer to § 6.12.4.8 (Booby-Traps and Other Devices in the Form of Apparently Harmless Portable Objects 

Specifically Designed to Explode).

260 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

261 CCW AMENDED MINES PROTOCOL art. 3(3) (“It is prohibited in all circumstances to use any mine, booby-trap or 

other device which is designed or of a nature to cause superfluous injury or unnecessary suffering.”). Refer to § 6.6

(Weapons Calculated to Cause Superfluous Injury).

262 Article-by-Article Analysis of CCW Amended Mines Protocol, 11, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 11 (“Which types of 

such weapons might cause ‘unnecessary suffering’ can only be determined on a case-by-case basis, weighing the 

suffering caused against the military necessity for its use. One example of a prohibited device might be a mine or 

booby-trap that is filled with shards of glass. Such a weapon would likely be regarded as unnecessarily injurious 

because the shards would be undetectable by X-ray in the victim’s body, and this would cause suffering that would 

be wholly unnecessary for its military purpose. (In any case, the device would be prohibited by Protocol I of the 

Convention on non-detectable fragments).”).

263 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

264 CCW AMENDED MINES PROTOCOL art. 3(5) (“It is prohibited to use mines, booby-traps or other devices which 

employ a mechanism or device specifically designed to detonate the munition by the presence of commonly 

available mine detectors as a result of their magnetic or other non-contact influence during normal use in detection 

operations.”).
387

designed to detonate through the normal use of non-contact mine detectors during mine detection 

operations. Thus, mines, booby-traps, and other devices specifically designed to detonate upon 

actual physical contact are permissible.

265 Similarly, anti-handling devices that are designed to 

detonate a mine upon attempts to defuse or deactivate the mine are not prohibited by this rule.

6.12.4.3 Self-Deactivating Mines With Anti-Handling Devices Designed to 

Function After the Mine’s Operation. It is prohibited to use a self-deactivating mine equipped 

with an anti-handling device that is designed in such a manner that the anti-handling device is 

capable of functioning after the mine has ceased to be capable of functioning.266

The intent is to avoid situations where a self-deactivating mine, the “life” of which is 

normally limited by the life of its battery, remains dangerous indefinitely as a result of a longlived anti-handling device. This would defeat the purpose of the self-deactivation function by 

leaving a hazardous mine in place.267

6.12.4.4 Non-Detectable Anti-Personnel Mines. It is prohibited to use antipersonnel mines that are not detectable as specified in paragraph 2 of the Technical Annex to the 

CCW Amended Mines Protocol.268 Paragraph 2 of the Technical Annex specifies that:

(a) With respect to anti-personnel mines produced after 1 January 1997, such 

mines shall incorporate in their construction a material or device that enables the 

mine to be detected by commonly-available technical mine detection equipment 

and provides a response signal equivalent to a signal from 8 grammes or more of 

iron in a single coherent mass.

(b) With respect to anti-personnel mines produced before 1 January 1997, such 

mines shall either incorporate in their construction, or have attached prior to their 

emplacement, in a manner not easily removable, a material or device that enables 

the mine to be detected by commonly-available technical mine detection 

 265 Article-by-Article Analysis of CCW Amended Mines Protocol, 12, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 12 (“The provision 

clearly excludes situations where actual physical contact with mine detectors or abnormal use of mine detectors is 

required to detonate the mine. For example, a mine’s trip-wire or tilt-rod (a type of vertical trip-wire) may be pulled 

or pushed in a sweep of a mine detector, setting off the mine. This would not constitute the use of a mine in 

contravention of this provision.”).

266 CCW AMENDED MINES PROTOCOL art. 3(6) (“It is prohibited to use a self-deactivating mine equipped with an 

anti-handling device that is designed in such a manner that the anti-handling device is capable of functioning after 

the mine has ceased to be capable of functioning.”).

267 Article-by-Article Analysis of CCW Amended Mines Protocol, 15, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 15 (“The intent is to 

avoid situations where a self-deactivating mine, the ‘life’ of which is normally limited by the life of its battery, is 

dangerous indefinitely as a result of a long-lived anti-handling device. This would defeat the purpose of the selfdeactivation function by leaving a hazardous mine in place.”).

268 CCW AMENDED MINES PROTOCOL art. 4 (“It is prohibited to use anti-personnel mines which are not detectable, 

as specified in paragraph 2 of the Technical Annex.”).
388

equipment and provides a response signal equivalent to a signal from 8 grammes 

or more of iron in a single coherent mass.

(c) In the event that a High Contracting Party determines that it cannot 

immediately comply with sub-paragraph (b), it may declare at the time of its 

notification of consent to be bound by this Protocol that it will defer compliance 

with sub-paragraph (b) for a period not to exceed 9 years from the entry into force 

of this Protocol. In the meantime it shall, to the extent feasible, minimize the use 

of anti-personnel mines that do not so comply.269

6.12.4.5 Remotely Delivered Anti-Personnel Mines Not in Compliance With SelfDestruction and Self-Deactivation Requirements. It is prohibited to use remotely delivered antipersonnel mines that are not in compliance with the provisions on self-destruction and selfdeactivation in the Technical Annex to the CCW Amended Mines Protocol.270

All remotely delivered anti-personnel mines shall be designed and constructed so that no 

more than 10% of activated mines will fail to self-destruct within 30 days after emplacement, 

and each mine shall have a back-up self-deactivation feature designed and constructed so that, in 

combination with the self-destruction mechanism, no more than one in one thousand activated 

mines will function as a mine 120 days after emplacement.271

6.12.4.6 Remotely Delivered Mines Other Than Anti-Personnel Mines Without a 

Feasible SD/SDA Mechanism. It is prohibited to use remotely delivered mines other than antipersonnel mines, unless, to the extent feasible, they are equipped with an effective selfdestruction or self-neutralization mechanism and have a back-up self-deactivation feature, which 

is designed so that the mine will no longer function as a mine when the mine no longer serves the 

military purpose for which it was placed in position.272

6.12.4.7 Mines Produced After December 3, 1998, Without Identifying 

Information. Subparagraph 1(d) of the Technical Annex to the CCW Amended Mines Protocol 

provides: 

The use of mines produced after the entry into force of this Protocol is prohibited 

unless they are marked in English or in the respective national language or 

languages with the following information:

 269 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶2.

270 CCW AMENDED MINES PROTOCOL art. 6(2) (“It is prohibited to use remotely-delivered anti-personnel mines 

which are not in compliance with the provisions on self-destruction and self-deactivation in the Technical Annex.”).

271 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶3(a) (“All remotely-delivered anti-personnel mines 

shall be designed and constructed so that no more than 10% of activated mines will fail to self-destruct within 30 

days after emplacement, and each mine shall have a back-up self-deactivation feature designed and constructed so 

that, in combination with the self-destruction mechanism, no more than one in one thousand activated mines will 

function as a mine 120 days after emplacement.”).

272 CCW AMENDED MINES PROTOCOL art. 6(3) (“It is prohibited to use remotely-delivered mines other than antipersonnel mines, unless, to the extent feasible, they are equipped with an effective self-destruction or selfneutralization mechanism and have a back-up self-deactivation feature, which is designed so that the mine will no 

longer function as a mine when the mine no longer serves the military purpose for which it was placed in position.”).
389

(i) name of the country of origin;

(ii) month and year of production; and

(iii) serial number or lot number.

The marking should be visible, legible, durable and resistant to environmental 

effects, as far as possible.

The CCW Amended Mines Protocol entered into force on December 3, 1998.273

6.12.4.8 Booby-Traps and Other Devices in the Form of Apparently Harmless 

Portable Objects Specifically Designed to Explode. It is prohibited in all circumstances to use

booby-traps or other devices in the form of apparently harmless portable objects that are

specifically designed and constructed to contain explosive material.

274 This prohibition relates to 

booby-traps manufactured to resemble items, such as watches, personal audio players, cameras, 

toys, and the like. This prohibition is intended to prevent the production of large quantities of 

dangerous objects that can be scattered around and are likely to be attractive to civilians, 

especially children.275

This rule does not prohibit the use of booby-traps in connection with non-portable 

objects, such as a door or gate.

This rule does not prohibit field-expedient adaptation, or adaptation in advance, of 

objects for use as booby-traps or other devices that are not designed or constructed for such 

use.276 For example, it would not be prohibited to improvise a booby-trap using a trip-wired 

hand grenade in the form of an apparently harmless portable object. Such improvisation of 

booby-traps, for example, to retard an enemy advance, does not pose the same sort of danger to 

the civilian population as the mass production of objects specifically designed as booby-traps.277

 273 Refer to § 19.21.3 (CCW Amended Mines Protocol).

274 CCW AMENDED MINES PROTOCOL art. 7(2) (“It is prohibited to use booby-traps or other devices in the form of 

apparently harmless portable objects which are specifically designed and constructed to contain explosive 

material.”).

275 During World War II, such devices were manufactured and intended to be used by guerilla forces operating in 

denied areas or forces withdrawing from territory about to be occupied by enemy forces. See DEPARTMENT OF THE 

ARMY FIELD MANUAL 5-31, Land Mines and Booby Traps, ¶1(d) (1943) (“Factory-produced booby-traps (dirty trick 

devices) are described. Most of these have been developed and used in the field by foreign armies.”); id. at. 

¶50(d)(4-5) (1943) (“The Japanese manufactured a [tobacco] pipe boobytrap with a charge, detonator, and springloaded striker. The Italians had a booby-trapped headset containing an electric detonator connected to the terminals 

on the back. The connection of the headset into the line communication line initiated detonation.”).

276 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - ... (A) the 

prohibition contained in Article 7(2) of the Amended Mines Protocol does not preclude the expedient adaptation or 

adaptation in advance of other objects for use as booby-traps or other devices;”).

277 Article-by-Article Analysis of CCW Amended Mines Protocol, 27, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 27 (“Such 
390

6.12.4.9 Certain Types of Prohibited Booby-Traps and Other Devices. It is 

prohibited to use booby-traps and other devices that are in any way attached to or associated 

with:278

• internationally recognized protective emblems, signs, or signals;

o This includes the distinctive emblem of the red cross and red crescent and the 

distinctive emblem for cultural property.279

• sick, wounded, or dead persons;

• burial or cremation sites or graves;

• medical facilities, equipment, supplies, or transportation;

• children’s toys or other portable objects or products specially designed for the feeding, 

health, hygiene, clothing, or education of children;

• food or drink;

o The United States has reserved the right to use other devices to destroy any stock 

of food or drink that is judged likely to be used by an enemy military force, if due 

precautions are taken for the safety of the civilian population.280

• kitchen utensils or appliances, except in military establishments, military locations, or 

military supply depots;

o This does not authorize kitchen utensils or appliances in military hospitals, POW 

 

improvisation of booby-traps, for example to retard an enemy advance, does not pose the same sort of danger to the 

civilian population as the mass production of objects specifically designed as booby-traps toward which the 

provision was directed.”).

278 CCW AMENDED MINES PROTOCOL art. 7(1) (“Without prejudice to the rules of international law applicable in 

armed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use booby-traps and other 

devices which are in any way attached to or associated with: (a) internationally recognized protective emblems, 

signs or signals; (b) sick, wounded or dead persons; (c) burial or cremation sites or graves; (d) medical facilities, 

medical equipment, medical supplies or medical transportation; (e) children’s toys or other portable objects or 

products specially designed for the feeding, health, hygiene, clothing or education of children; (f) food or drink; (g) 

kitchen utensils or appliances except in military establishments, military locations or military supply depots; (h) 

objects clearly of a religious nature; (i) historic monuments, works of art or places of worship which constitute the 

cultural or spiritual heritage of peoples; or (j) animals or their carcasses.”).

279 Refer to § 7.15.1 (The Distinctive Emblems: Red Cross, Crescent, and Crystal); § 5.18.7 (Marking of Cultural 

Property With the Distinctive Emblem).

280 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of the 

Amended Mines Protocol) to destroy any stock of food or drink that is judged likely to be used by an enemy military 

force, if due precautions are taken for the safety of the civilian population.”).
391

camps, or military chapelsto be booby-trapped.281

• objects clearly of a religious nature;

• historic monuments, works of art, or places of worship that constitute the cultural or 

spiritual heritage of peoples;282 or

• animals or their carcasses.

6.12.5 General Rules for Using Mines, Booby-Traps, and Other Devices. The use of 

mines, booby traps, and other devices is subject to the same rules and principles that govern the 

use of other weapons to conduct attacks.

283 However, because mines, booby-traps, and other 

devices explode only after their emplacement, there have been different views as to when the use 

of a mine constitutes an “attack.”284 Thus, the CCW Amended Mines Protocol seeks to clarify 

how these principles apply to the use of mines, booby-traps, and other devices. These rules 

include:

• a prohibition against directing mines, booby-traps, and other devices against the civilian 

population;

• a prohibition against the indiscriminate use of mines, booby-traps, and other devices;

• an obligation to take feasible precautions to protect civilians from the effects of mines, 

booby-traps, and other devices;

• an obligation to give effective advance warning of the emplacement of mines, booby-

 281 Article-by-Article Analysis of CCW Amended Mines Protocol, 26, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 26 (“The exception in 

paragraph 1(g) of Article 7 does not, however, authorize kitchen utensils or appliances in military hospitals, military 

POW camps or military chapels to be booby-trapped.”).

282 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 129 (“The United states [sic] understands that Article 7(1)(i) of the Amended Mines Protocol refers only 

to a limited class of objects that, because of their clearly recognizable characteristics and because of their widely 

recognized importance, constitute a part of the cultural or spiritual heritage of peoples.”). Refer to § 5.18.1

(Definition of Cultural Property).

283 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

284 See, e.g., A.P.V. Rogers, Mines, Booby-traps and Other Devices, 30 INTERNATIONAL REVIEW OF THE RED CROSS

521, 524-25 (Nov.-Dec. 1990) (“One of the difficulties of the conference [that negotiated the Original Mines 

Protocol] was to apply to mine warfare the provisions of Additional Protocol I dealing with attacks. Agreement 

could not be reached as to what stage in the mine-laying process amounts to an attack: when the mine is laid, when 

it is armed, when somebody is endangered by it or when it actually explodes. To avoid these difficulties it was 

necessary to draw up special rules relating to the use of mines.”); ICRC AP COMMENTARY 622 (¶1960) (“However, 

the question may arise at what point the use of mines constitutes an attack in the sense of this provision [AP I art. 

51(4)(b)]. Is it when the mine is laid, when it is armed, when a person is endangered by it, or when it finally 

explodes? The participants at the meeting of the International Society of Military Law and the Law of War 

(Lausanne, 1982) conceded that from the legal point of view the use of mines constituted an attack in the sense of 

the Protocol when a person was directly endangered by such a mine.”).
392

traps, and other devices, unless circumstances do not permit; and

• obligations with respect to the recording of the placement of mines, booby-traps, and 

other devices.

6.12.5.1 Prohibition Against Directing Mines, Booby-Traps, and Other Devices 

Against Civilians. As with other weapons, mines, booby-traps, and other devices may not be 

directed against the civilian population, individual civilians, or civilian objects.285

6.12.5.2 Prohibition Against Indiscriminate Use of Mines, Booby-Traps, or Other 

Devices. Indiscriminate use of mines, booby-traps, or other devices is prohibited.286

This prohibition on indiscriminate use of mines, booby-traps, or other devices prohibits 

any placement of mines, booby-traps, or other devices that is not on, or directed against, a 

military objective.287 On the other hand, it would be permissible to direct mines against enemy 

forces that are expected to pass through an area. Similarly, it would be permissible to direct 

mines against a piece of land that is a military objective.288 In addition, it would be permissible 

to place mines on land or objects that belong to friendly forces and that the adversary would 

regard as a military objective, in order to protect such land or objects from interference or attack.

This prohibition on indiscriminate use of mines, booby-traps, or other devices also 

prohibits placing mines, booby-traps, or other devices using a method or means of delivery that 

cannot be directed at a specific military objective.289 For example, it would be prohibited to 

deliver mines using unguided long-distance balloons.290

This prohibition on indiscriminate use of mines, booby-traps, or other devices also 

prohibits placing mines, booby-traps, or other devices that may be expected to cause incidental 

loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, 

which would be excessive in relation to the concrete and direct military advantage anticipated.291

 285 CCW AMENDED MINES PROTOCOL art. 3(7) (“It is prohibited in all circumstances to direct weapons to which this 

Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against 

individual civilians or civilian objects.”). Refer to § 5.5 (Discrimination in Conducting Attacks).

286 CCW AMENDED MINES PROTOCOL art. 3(8) (“The indiscriminate use of weapons to which this Article applies is 

prohibited.”).

287 CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: (a) which is 

not on, or directed against, a military objective. In case of doubt as to whether an object which is normally 

dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to 

make an effective contribution to military action, it shall be presumed not to be so used;”).

288 Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

289 CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: ... (b) 

which employs a method or means of delivery which cannot be directed at a specific military objective;”).

290 Refer to § 6.7 (Inherently Indiscriminate Weapons).

291 CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: ... (c) which 

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a 

combination thereof, which would be excessive in relation to the concrete and direct military advantage 
393

6.12.5.3 Obligation to Take Feasible Precautions to Protect Civilians From the 

Effects of Mines, Booby-Traps, and Other Devices. All feasible precautions shall be taken to 

protect civilians from the effects of mines, booby-traps, and other devices.

292 This obligation 

corresponds to a more general obligation to take feasible precautions.

293 Feasible precautions are 

those precautions that are practicable or practically possible, taking into account all 

circumstances ruling at the time, including humanitarian and military considerations.294 These 

circumstances include, but are not limited to:

• the short- and long-term effect of mines, booby-traps, and other devices upon the local 

civilian population for the duration of their use; 

• possible measures to protect civilians (e.g., fencing, signs, warning, and monitoring);

• the availability and feasibility of using alternatives; and

• the short- and long-term military requirements for a minefield, or for the use of boobytraps or other devices.295

6.12.5.4 Effective Advance Warning of Any Emplacement. Effective advanced 

warning shall be given of any emplacement of mines, booby-traps, and other devices that may 

affect the civilian population, unless circumstances do not permit doing so.

296

6.12.5.5 Recording of Minefields, Mined Areas, Mines, Booby-Traps, and Other 

Devices. All information concerning minefields, mined areas, mines, booby-traps, and other 

devices shall be recorded in accordance with the provisions of the Technical Annex to the CCW 

 

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

Harm).

292 CCW AMENDED MINES PROTOCOL art. 3(10) (“All feasible precautions shall be taken to protect civilians from the 

effects of weapons to which this Article applies.”).

293 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

294 CCW AMENDED MINES PROTOCOL art. 3(10) (“Feasible precautions are those precautions which are practicable 

or practically possible taking into account all circumstances ruling at the time, including humanitarian and military 

considerations.”). Refer to § 5.2.3.2 (What Precautions Are Feasible).

295 CCW AMENDED MINES PROTOCOL art. 3(10) (“These circumstances include, but are not limited to: (a) the shortand long-term effect of mines upon the local civilian population for the duration of the minefield; (b) possible 

measures to protect civilians (for example, fencing, signs, warning and monitoring); (c) the availability and 

feasibility of using alternatives; and (d) the short- and long-term military requirements for a minefield.”). See also

Article-by-Article Analysis of CCW Amended Mines Protocol, 14, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 14 (“These general 

considerations [described in CCW Amended Mines Protocol art. 3(10)] are relevant to all mines, both anti-personnel 

and anti-tank, as well as the other weapons to which the amended Protocol applies.”).

296 CCW AMENDED MINES PROTOCOL art. 3(11) (“Effective advance warning shall be given of any emplacement of 

mines, booby-traps and other devices which may affect the civilian population, unless circumstances do not 

permit.”). Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian 

Population).
394

Amended Mines Protocol.

297 

“Minefield” is a defined area in which mines have been emplaced (including areas free of 

mines that simulate a minefield), and a “mined area” is an area that is dangerous due to the 

presence of mines.298 “Recording” means a physical, administrative, and technical operation 

designed to obtain, for the purpose of registration in official records, all available information 

facilitating the location of minefields, mined areas, booby-traps, and other devices.299 

Subparagraph 1(a) of the Technical Annex to the CCW Amended Mines Protocol 

specifies that the recording of the location of non-remotely delivered mines, minefields, mined 

areas, booby-traps, and other devices shall be carried out in accordance with the following 

provisions:

(i) the location of the minefields, mined areas and areas of booby-traps and other 

devices shall be specified accurately by relation to the coordinates of at least two 

reference points and the estimated dimensions of the area containing these 

weapons in relation to those reference points;

(ii) maps, diagrams or other records shall be made in such a way as to indicate the 

location of minefields, mined areas, booby-traps and other devices in relation to 

reference points, and these records shall also indicate their perimeters and extent; 

(iii) for purposes of detection and clearance of mines, booby-traps and other 

devices, maps, diagrams or other records shall contain complete information on 

the type, number, emplacing method, type of fuse and life time, date and time of 

laying, antihandling devices (if any) and other relevant information on all these 

weapons laid. Whenever feasible the minefield record shall show the exact 

location of every mine, except in row minefields where the row location is 

sufficient. The precise location and operating mechanism of each booby-trap laid 

shall be individually recorded.300

Records shall be retained by the parties to the conflict.301 Copies of records shall be held 

 297 CCW AMENDED MINES PROTOCOL art. 9(1) (“All information concerning minefields, mined areas, mines, boobytraps and other devices shall be recorded in accordance with the provisions of the Technical Annex.”).

298 CCW AMENDED MINES PROTOCOL art. 2(8) (“‘Minefield’ is a defined area in which mines have been emplaced 

and ‘mined area’ is an area which is dangerous due to the presence of mines. ‘Phoney minefield’ means an area free 

of mines that simulates a minefield. The term ‘minefield’ includes phoney minefields.”).

299 CCW AMENDED MINES PROTOCOL art. 2(9) (“‘Recording’ means a physical, administrative and technical 

operation designed to obtain, for the purpose of registration in official records, all available information facilitating 

the location of minefields, mined areas, mines, booby-traps and other devices.”).

300 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(c).

301 CCW AMENDED MINES PROTOCOL art. 9(2) (providing that “[a]ll such records [mentioned in paragraph 1 of 

Article 9] shall be retained by the parties to a conflict”).
395

at a level of command sufficient to guarantee their safety as far as possible.302

6.12.6 Rules for Using Non-Remotely Delivered Anti-Personnel Mines With Compliant 

SD/SDA Mechanisms. Non-remotely delivered anti-personnel mines that comply with the 

requirements for self-destruction and self-deactivation in the Technical Annex to the CCW 

Amended Mines Protocol may be used outside of marked areas.303

6.12.7 Rules for Using Non-Remotely Delivered Anti-Personnel Mines Without 

Compliant SD/SDA Mechanisms. Anti-personnel mines other than remotely delivered mines

that are not in compliance with the provisions on self-destruction and self-deactivation in the 

Technical Annex to the CCW Amended Mines Protocol may be used subject to certain 

requirements. For a number of years, U.S. forces maintained minefields that met these 

standards.304 The United States, however, no longer maintains any minefields.305

First, such weapons are to be placed within a perimeter-marked area that is monitored by 

military personnel and protected by fencing or other means, to ensure the effective exclusion of 

civilians from the area. The marking must be of a distinct and durable character, and must be 

visible to a person who is about to enter the perimeter-marked area.

306 The State Party 

controlling a minefield is obligated to take all feasible measures to prevent the unauthorized 

removal, defacement, destruction, or concealment of any device, system, or material used to 

establish the perimeter of a permanently marked area.307

Second, such weapons are to be cleared before the area is abandoned, unless the area is 

turned over to the forces of another State that accepts responsibility for the maintenance of the 

 302 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(c) (“Copies of records shall be held at a level of 

command sufficient to guarantee their safety as far as possible.”).

303 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶3(b) (“All non-remotely delivered anti-personnel 

mines, used outside marked areas, as defined in Article 5 of this Protocol, shall comply with the requirements for 

self-destruction and self-deactivation stated in sub-paragraph (a).”).

304 Article-by-Article Analysis of CCW Amended Mines Protocol, 16-17, Enclosure A to Warren Christopher, Letter 

of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 16-17 (“The U.S. 

military has maintained minefields for a number of years in Guantanamo and Korea that meet these standards, and is 

confident that these requirements are feasible and realistic.”).

305 Department of State, Bureau of Political-Military Affairs, Fact Sheet: Frequently Asked Questions on the New 

United States Landmine Policy (Feb. 27, 2004) (“The United States ... currently maintains no minefields anywhere 

in the world, including Korea.”).

306 CCW AMENDED MINES PROTOCOL art. 5(2)(a) (“It is prohibited to use weapons to which this Article applies 

which are not in compliance with the provisions on self-destruction and self-deactivation in the Technical Annex, 

unless: ... such weapons are placed within a perimeter-marked area which is monitored by military personnel and 

protected by fencing or other means, to ensure the effective exclusion of civilians from the area. The marking must 

be of a distinct and durable character and must at least be visible to a person who is about to enter the perimetermarked area;”).

307 CCW AMENDED MINES PROTOCOL art. 5(5) (“All feasible measures shall be taken to prevent the unauthorized 

removal, defacement, destruction or concealment of any device, system or material used to establish the perimeter of 

a perimeter-marked area.”).
396

protections stated above, and the subsequent clearance of those weapons.308 This requirement 

does not preclude agreement, in connection with peace treaties or similar arrangements, to 

allocate responsibilities under Article 5 of the CCW Amended Mines Protocol in a manner that 

respects the essential spirit and purpose of Article 5.309

A party to a conflict is relieved from compliance with these obligations if compliance is 

not feasible due to forcible loss of control of the area as a result of enemy military action, 

including situations where direct enemy military action makes it impossible to comply. If the 

party that laid the minefield regains control of the area, it must re-assume its responsibilities.310 

The forces of a party to the conflict gaining control of an area assume the responsibilities, to the 

maximum extent feasible, until the mines have been cleared.311

6.12.8 Rules for Using Non-Remotely Delivered Anti-Personnel Mines That Propel 

Fragments in a Horizontal Arc of Less Than 90 Degrees (e.g., Claymores). Anti-personnel 

mines other than remotely delivered mines that propel fragments in a horizontal arc of less than 

90 degrees may be used on or above the ground outside of marked areas for up to 72 hours if:

• they are located in immediate proximity to the military unit that emplaced them; and

• the area is monitored by military personnel to ensure the effective exclusion of 

civilians.312

The maintenance of observation over avenues of approach where such mines are deployed 

constitutes one acceptable form of monitoring to ensure the effective exclusion of civilians.313

 308 CCW AMENDED MINES PROTOCOL art. 5(2)(b) (“such weapons are cleared before the area is abandoned, unless 

the area is turned over to the forces of another State which accept responsibility for the maintenance of the 

protections required by this Article and the subsequent clearance of those weapons.”).

309 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“The United States understands that the allocation of responsibilities for landmines in Article 

5(2)(b) of the Amended Mines Protocol does not preclude agreement, in connection with peace treaties or similar 

arrangements, to allocate responsibilities under that Article in a manner that respects the essential spirit and purpose 

of the Article.”).

310 CCW AMENDED MINES PROTOCOL art. 5(3) (“A party to a conflict is relieved from further compliance with the 

provisions of subparagraphs 2 (a) and 2 (b) of this Article only if such compliance is not feasible due to forcible loss 

of control of the area as a result of enemy military action, including situations where direct enemy military action 

makes it impossible to comply. If that party regains control of the area, it shall resume compliance with the 

provisions of sub-paragraphs 2 (a) and 2 (b) of this Article.”).

311 CCW AMENDED MINES PROTOCOL art. 5(4) (“If the forces of a party to a conflict gain control of an area in which 

weapons to which this Article applies have been laid, such forces shall, to the maximum extent feasible, maintain 

and, if necessary, establish the protections required by this Article until such weapons have been cleared.”).

312 CCW AMENDED MINES PROTOCOL art. 5(6) (“Weapons to which this Article applies which propel fragments in a 

horizontal arc of less than 90 degrees and which are placed on or above the ground may be used without the 

measures provided for in sub-paragraph 2 (a) of this Article for a maximum period of 72 hours, if: (a) they are 

located in immediate proximity to the military unit that emplaced them; and (b) the area is monitored by military 

personnel to ensure the effective exclusion of civilians.”).

313 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 129 (“The United States understands that, for the purposes of Article 5(6)(b) of the Amended Mines 
397

A Claymore munition used in trip-wire mode is an example of this type of mine.314 A 

Claymore used in command-detonated mode is regulated as an “other device.”315

6.12.9 Rules for Using Remotely Delivered Mines. Remotely delivered mines are subject 

to special, additional restrictions because their location cannot be marked as accurately as mines 

placed by hand or by mechanical mine layers. In addition, because remotely delivered mines are 

often emplaced by long-range means, it may be difficult to ensure that civilians are absent or 

excluded from areas containing such mines. Remotely delivered mines may not be used unless 

they have compliant self-destruction and self-deactivation mechanisms.316

6.12.9.1 Effective Advance Warning of the Delivery of Mines Unless 

Circumstances Do Not Permit. As with other weapons, effective advance warning shall be given 

of any delivery or dropping of remotely delivered mines that may affect the civilian population, 

unless circumstances do not permit doing so.

317

6.12.9.2 Recording of Remotely Delivered Mines. It is prohibited to use remotely

delivered mines unless they are recorded in accordance with subparagraph 1(b) of the Technical 

Annex to the CCW Amended Mines Protocol.

318 Subparagraph 1(b) of the Technical Annex

requires that the estimated location and area of remotely delivered mines be specified by 

coordinates of reference points (normally corner points) and shall be ascertained and, when 

feasible, marked on the ground at the earliest opportunity. In addition, the total number and type 

of mines laid, the date and time of laying, and the self-destruction time periods shall also be 

recorded.319

6.12.10 Rule for Using Booby-Traps and Other Devices. Booby-traps may not be of the 

 

Protocol, the maintenance of observation over avenues of approach where mines subject to that Article are deployed 

constitutes one acceptable form of monitoring to ensure the effective exclusion of civilians.”).

314 Article-by-Article Analysis of CCW Amended Mines Protocol, 7-8, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7-8 (“In a trip-wired 

mode, the Claymore is not excluded from the restrictions applicable to anti-personnel mines by reason of the 

definition in paragraph 3. Specifically, such mines, when used in a trip-wired mode, are covered by the definition 

but special, less restrictive rules in Article 5 apply to their use for a limited time -- 72 hours -- from their 

emplacement.”).

315 Refer to § 6.12.10 (Rule for Using Booby-Traps and Other Devices).

316 Refer to § 6.12.4.5 (Remotely Delivered Anti-Personnel Mines Not in Compliance With Self-Destruction and 

Self-Deactivation Requirements).

317 CCW AMENDED MINES PROTOCOL art. 6(4) (“Effective advance warning shall be given of any delivery or 

dropping of remotely-delivered mines which may affect the civilian population, unless circumstances do not 

permit.”). Refer to § 5.11.1 (Warning Before Attack).

318 CCW AMENDED MINES PROTOCOL art. 6(1) (“It is prohibited to use remotely-delivered mines unless they are 

recorded in accordance with sub-paragraph I (b) of the Technical Annex.”).

319 TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(b) (“The estimated location and area of remotelydelivered mines shall be specified by coordinates of reference points (normally corner points) and shall be 

ascertained and when feasible marked on the ground at the earliest opportunity. The total number and types of 

mines laid, the date and time of laying and the self-destruction time periods shall also be recorded.”).
398

prohibited type discussed in § 6.12.4.8 (Booby-Traps and Other Devices in the Form of 

Apparently Harmless Portable Objects Specifically Designed to Explode) and § 6.12.4.9 (Certain 

Types of Prohibited Booby-Traps and Other Devices).

In addition, as with mines, there are recording obligations with respect to the use of 

booby-traps and other devices, including the obligation to record the precise location and 

operating mechanism of each booby-trap laid.320

6.12.10.1 Use of Booby-Traps and Other Devices in Populated Areas When 

Combat Between Ground Forces Is Not Taking Place or Does Not Appear Imminent. In 

addition, booby-traps and other devices may not be used in any city, town, village, or other area 

containing a similar concentration of civilians in which combat between ground forces is not 

taking place or does not appear to be imminent, unless either:

• “they are placed on or in the close vicinity of a military objective;”321 or

• “measures are taken to protect civilians from their effects, for example, the posting of 

warning [signs, the posting of] sentries, the issue of warnings or the provision of 

fences.”322 

6.12.11 Obligation to Seek to Protect Certain Groups From the Effects of Minefields, 

Mined Areas, Mines, Booby-Traps, and Other Devices. Article 12 of the CCW Amended Mines 

Protocol creates certain obligations to take measures to help protect certain groups from the 

effects of minefields, mined areas, mines, booby-traps, and other devices. Such obligations may 

apply with respect to:

• Any United Nations force or mission performing peace-keeping, observation, or similar 

functions in any area in accordance with the Charter of the United Nations; or

• Any of the following, if they have the consent of the State in whose territory they are 

operating:323 

o missions established pursuant to Chapter VIII of the Charter of the United Nations 

and performing its functions in the area of a conflict;

 320 Refer to § 6.12.5.5 (Recording of Minefields, Mined Areas, Mines, Booby-Traps, and Other Devices).

321 CCW AMENDED MINES PROTOCOL art. 7(3)(a).

322 CCW AMENDED MINES PROTOCOL art. 7(3) (“Without prejudice to the provisions of Article 3, it is prohibited to 

use weapons to which this Article applies in any city, town, village or other area containing a similar concentration 

of civilians in which combat between ground forces is not taking place or does not appear to be imminent, unless 

either: (a) they are placed on or in the close vicinity of a military objective; or (b) measures are taken to protect 

civilians from their effects, for example, the posting of warning sentries, the issuing of warnings or the provision of 

fences.”). The words in square brackets appeared in Original CCW Protocol II Article 4(2)(b). Their omission in 

the CCW Amended Mines Protocol is an apparent error overlooked by the Drafting Committee.

323 CCW AMENDED MINES PROTOCOL art. 12(a) (“With the exception of the forces and missions referred to in subparagraph 2(a) (i) of this Article, this Article applies only to missions which are performing functions in an area with 

the consent of the High Contracting Party on whose territory the functions are performed.”).
399

o humanitarian or fact-finding missions of the United Nations System; 

o missions of the ICRC;

o humanitarian missions of a national Red Cross or Red Crescent Society or of their 

International Federation; and

o missions of inquiry established pursuant to the provisions of the Geneva

Conventions of 12 August 1949 and, where applicable, their Additional Protocols.

The obligations to take affirmative measures under Article 12 are subject to practical 

considerations.

324 In addition, the forces and missions that are afforded protection under Article 

12 have corresponding obligations to keep information confidential, to respect applicable laws 

and regulations, and to refrain from activities that are incompatible with the impartial and 

international nature of their duties.

325

6.12.12 Obligations Arising After the Cessation of Active Hostilities. Certain obligations 

with respect to mines, booby-traps, and other devices are triggered after the cessation of active 

hostilities.

6.12.12.1 Take Measures to Protect Civilians From the Effects of Minefields, 

Mined Areas, Mines, Booby-Traps, and Other Devices in Areas Under Their Control After 

Hostilities. Without delay after the cessation of active hostilities, a party to a conflict is to take 

 324 CCW AMENDED MINES PROTOCOL art. 12(2)(b) (“Each High Contracting Party or party to a conflict, if so 

requested by the head of a force or mission to which this paragraph applies, shall: (i) so far as it is able, take such 

measures as are necessary to protect the force or mission from the effects of mines, booby-traps and other devices in 

any area under its control; (ii) if necessary in order effectively to protect such personnel, remove or render harmless, 

so far as it is able, all mines, booby-traps and other devices in that area; and (iii) inform the head of the force or 

mission of the location of all known minefields, mined areas, mines, booby-traps and other devices in the area in 

which the force or mission is performing its functions and, so far as is feasible, make available to the head of the 

force or mission all information in its possession concerning such minefields, mined areas, mines, booby-traps and 

other devices.”) (emphasis added); CCW AMENDED MINES PROTOCOL art. 12(3)(b) (“Each High Contracting Party 

or party to a conflict, if so requested by the head of a mission to which this paragraph applies, shall: (i) provide the 

personnel of the mission with the protections set out in sub-paragraph 2(b) (i) of this Article; and (ii) if access to or 

through any place under its control is necessary for the performance of the mission’s functions and in order to 

provide the personnel of the mission with safe passage to or through that place: (aa) unless on-going hostilities 

prevent, inform the head of the mission of a safe route to that place if such information is available; or (bb) if 

information identifying a safe route is not provided in accordance with sub-paragraph (aa), so far as is necessary and 

feasible, clear a lane through minefields.”) (emphasis added); CCW Amended Mines Protocol art. 12(5)(b) (“Each 

High Contracting Party or party to a conflict, if so requested by the head of a mission to which this paragraph 

applies, shall, so far as is feasible: (i) provide the personnel of the mission with the protections set out in subparagraph 2(b) (i) of this Article, and (ii) take the measures set out in sub-paragraph 3(b) (ii) of this Article.”) 

(emphasis added).

325 CCW AMENDED MINES PROTOCOL art. 12 (“6. Confidentiality All information provided in confidence pursuant 

to this Article shall be treated by the recipient in strict confidence and shall not be released outside the force or 

mission concerned without the express authorization of the provider of the information. 7. Respect for laws and 

regulations Without prejudice to such privileges and immunities as they may enjoy or to the requirements of their 

duties, personnel participating in the forces and missions referred to in this Article shall: (a) respect the laws and 

regulations of the host State; and (b) refrain from any action or activity incompatible with the impartial and 

international nature of their duties.”).
400

all necessary and appropriate measures, including the use of records kept in accordance with the 

CCW Amended Mines Protocol, to protect civilians from the effects of minefields, mined areas, 

mines, booby-traps, and other devices in areas under their control.326 Information is to be shared 

with the other party or parties to the conflict and with the Secretary-General of the United 

Nations regarding mines laid by the party’s forces in areas no longer under their control, subject 

to reciprocity and security requirements.327

6.12.12.2 Clearance of Minefields, Mined Areas, Mines, Booby-Traps, and Other 

Devices After Hostilities. Each Party to the CCW Amended Mines Protocol or party to a conflict 

is, in accordance with the provisions of the CCW Amended Mines Protocol, responsible for all 

mines, booby-traps, and other devices employed by it and undertakes to clear, remove, destroy,

or maintain them as specified in Article 10 of the CCW Amended Mines Protocol.

328

Without delay after the cessation of active hostilities, a Party to the CCW Amended 

Mines Protocol or a party to a conflict has an obligation to ensure that all minefields, mined 

areas, mines, booby-traps, and other devices in areas under its control are cleared, removed, 

destroyed, or maintained in accordance with Article 3 and Paragraph 2 of Article 5 of the CCW 

Amended Mines Protocol.329

With respect to mines laid by a Party to the CCW Amended Mines Protocol or a party to 

a conflict in areas over which the party no longer exercises control, the party is to provide to the 

party that is now in control of the area, to the extent permitted by such party, technical and 

material assistance necessary to fulfill its responsibility to ensure that all minefields are cleared, 

removed, destroyed, or maintained.330 For example, such assistance may include maps and other 

 326 CCW AMENDED MINES PROTOCOL art. 9(2) (“All such records shall be retained by the parties to a conflict, who 

shall, without delay after the cessation of active hostilities, take all necessary and appropriate measures, including 

the use of such information, to protect civilians from the effects of minefields, mined areas, mines, booby-traps and 

other devices in areas under their control.”).

327 CCW AMENDED MINES PROTOCOL art. 9(2) (“At the same time, they shall also make available to the other party 

or parties to the conflict and to the Secretary-General of the United Nations all such information in their possession 

concerning minefields, mined areas, mines, booby-traps and other devices laid by them in areas no longer under 

their control; provided, however, subject to reciprocity, where the forces of a party to a conflict are in the territory of 

an adverse party, either party may withhold such information from the Secretary-General and the other party, to the 

extent that security interests require such withholding, until neither party is in the territory of the other. In the latter 

case, the information withheld shall be disclosed as soon as those security interests permit. Wherever possible, the 

parties to the conflict shall seek, by mutual agreement, to provide for the release of such information at the earliest 

possible time in a manner consistent with the security interests of each party.”).

328 CCW AMENDED MINES PROTOCOL art. 3(2) (“Each High Contracting Party or party to a conflict is, in accordance 

with the provisions of this Protocol, responsible for all mines, booby-traps, and other devices employed by it and 

undertakes to clear, remove, destroy or maintain them as specified in Article 10 of this Protocol.”).

329 CCW AMENDED MINES PROTOCOL art. 10(1) (“Without delay after the cessation of active hostilities, all 

minefields, mined areas, mines, booby-traps and other devices shall be cleared, removed, destroyed or maintained in 

accordance with Article 3 and paragraph 2 of Article 5 of this Protocol.”); CCW AMENDED MINES PROTOCOL art. 

10(2) (“High Contracting Parties and parties to a conflict bear such responsibility with respect to minefields, mined 

areas, mines, booby-traps and other devices in areas under their control.”).

330 CCW AMENDED MINES PROTOCOL art. 10(3) (“With respect to minefields, mined areas, mines, booby-traps and 

other devices laid by a party in areas over which it no longer exercises control, such party shall provide to the party 
401

information regarding the mines and minefields.

In addition, the parties have an obligation to endeavor to reach agreement among 

themselves and, where appropriate, with other States and with international organizations, on the 

provision of technical and material assistance, including, in appropriate circumstances, the 

undertaking of joint operations necessary to fulfill such responsibilities.331 There are additional

provisions of the CCW Amended Mines Protocol addressing international exchanges of 

information and cooperation in this respect.332 However, no provision of the CCW Amended 

Mines Protocol is to be construed as affecting the discretion of the United States to refuse 

assistance or to restrict or deny permission for the export of equipment, material, or scientific or 

technological information for any reason, and the CCW Amended Mines Protocol may not be 

used as a pretext for the transfer of weapons technology or the provision of assistance to the 

military mining or military counter-mining capabilities of a State Party to the CCW Amended 

Mines Protocol.333

6.12.13 U.S. Policy on Landmines. Landmines have been addressed by U.S. national 

policy. The United States has announced a policy: (1) not to use anti-personnel landmines

outside the Korean Peninsula; (2) not to assist, encourage, or induce anyone outside the Korean 

Peninsula to engage in activity prohibited by the Ottawa Convention; (3) to undertake to destroy 

anti-personnel landmine stockpiles not required for the defense of the Republic of Korea; and (4) 

not to produce or otherwise acquire any anti-personnel munitions that are not compliant with the 

Ottawa Convention.

334 The United States has also previously committed not to emplace new 

persistent anti-personnel or anti-vehicle landmines (i.e., landmines without self-destruction 

mechanisms and self-deactivation features).335 U.S. landmines will continue to meet or exceed 

 

in control of the area pursuant to paragraph 2 of this Article, to the extent permitted by such party, technical and 

material assistance necessary to fulfil such responsibility.”).

331 CCW AMENDED MINES PROTOCOL art. 10(4) (“At all times necessary, the parties shall endeavour to reach 

agreement, both among themselves and, where appropriate, with other States and with international organizations, 

on the provision of technical and material assistance, including, in appropriate circumstances, the undertaking of 

joint operations necessary to fulfil such responsibilities.”).

332 CCW AMENDED MINES PROTOCOL art. 11.

333 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 130 (“The United States understands that - (A) no provision of the Protocol may be construed as 

affecting the discretion of the United States to refuse assistance or to restrict or deny permission for the export of 

equipment, material, or scientific or technological information for any reason; and (B) the Amended Mines Protocol 

may not be used as a pretext for the transfer of weapons technology or the provision of assistance to the military 

mining or military counter-mining capabilities of a State Party to the Protocol.”).

334 Department of State, Bureau of Political-Military Affairs, Fact Sheet: Changes to U.S. Anti-Personnel Landmine 

Policy (Sept. 23, 2014) (“This means that [the] United States will: not use APL outside the Korean Peninsula; not 

assist, encourage, or induce anyone outside the Korean Peninsula to engage in activity prohibited by the Ottawa 

Convention; and undertake to destroy APL stockpiles not required for the defense of the Republic of Korea. This 

change to U.S. APL policy builds on the announcement that the U.S. delegation made in June at the Third Review 

Conference of the Ottawa Convention in Maputo, Mozambique, that the United States will not produce or otherwise 

acquire any anti-personnel munitions that are not compliant with the Ottawa Convention, including to replace such 

munitions as they expire in the coming years.”).

335 Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines: 

Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“The United States has 

committed to eliminate persistent landmines of all types from its arsenal.”).
402

international standards for self-destruction and self-deactivation.336 In addition, the United 

States no longer has any non-detectable mine of any type in its arsenal.337

The United States has a long practice of contributing significantly to humanitarian 

demining efforts and other conventional weapons destruction programs.338

6.12.14 Ottawa Convention on Anti-Personnel Landmines. The United States is not a 

Party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of 

Anti-Personnel Mines and on Their Destruction.

339 This Convention is commonly called the 

Ottawa Convention.

The United States has announced policy changes that align U.S. anti-personnel landmine 

policy outside the Korean Peninsula with the key requirements of the Ottawa Convention.340 

Among other reasons, because the practice of the United States and other States remains 

inconsistent with the prohibitions of the Ottawa Convention, its prohibitions do not reflect 

customary international law.341

 336 Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines: 

Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“The United States will 

continue to develop non-persistent anti-personnel and anti-tank landmines. As with the current United States 

inventory of non-persistent landmines, these mines will continue to meet or exceed international standards for selfdestruction and self-deactivation. This ensures that, after they are no longer needed for the battlefield, these 

landmines will detonate or turn themselves off, eliminating the threat to civilians.”).

337 Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines: 

Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“Within one year, the 

United States will no longer have any non-detectable mine of any type in its arsenal.”).

338 Department of State, Bureau of Political-Military Affairs, To Walk the Earth in Safety: Documenting the United 

States’ 20 Year Commitment to Conventional Weapons Destruction, 6 (August 2013) (“In 1993, the United States 

established the Demining Assistance Program and the Interagency Working Group (IWG) on Demining and 

Landmine Control, initiating a coordinated interagency aid effort to support international humanitarian mine action 

(HMA). Though the United States first provided HMA assistance in 1988, a coordinated and sustained U.S. 

Government effort began with this IWG. Over the past two decades, the U.S. approach to mine action has expanded 

to meet related needs in post-conflict environments, such as threats from ERW and at-risk SA/LW [small arms and 

light weapons], including manportable air-defense systems (MANPADS). ... Since 1993, the United States has 

invested more than $2 billion in CWD programs in over 90 countries.”).

339 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on 

their Destruction, Sept. 18, 1997, 2056 UNTS 211.

340 Department of State, Bureau of Political-Military Affairs, Fact Sheet: Changes to U.S. Anti-Personnel Landmine 

Policy (Sept. 23, 2014) (“President Clinton, in his 1994 address to the United Nations General Assembly, called for 

the eventual elimination of anti-personnel landmines (APL). Today, the Obama Administration is announcing new 

policy changes that bring the United States closer to that goal. Specifically, the United States is aligning our APL 

policy outside the Korean Peninsula with the key requirements of the Ottawa Convention, the international treaty 

prohibiting the use, stockpiling, production, and transfer of APL, which more than 160 countries have joined, 

including all of our NATO Allies.”).

341 See, e.g., Eritrea Ethiopia Claims Commission, Partial Award: Central Front, Ethiopia’s Claim 2, ¶95 (Apr. 28, 

2004) (“Landmines. As with other weredas [i.e., geographic districts], the evidence indicates that Eritrea made 

extensive use of anti-personnel landmines, but it does not demonstrate a pattern of their unlawful use. For liability, 

the Commission would have to conclude that landmines were used in ways that intentionally targeted civilians or 

were indiscriminate. However, the available evidence suggests that landmines were extensively used as part of the 
403

Many U.S. allies and coalition partners, including Australia, Canada, and the United 

Kingdom, are parties to the Ottawa Convention. Article 1 of the Ottawa Convention prohibits 

States Parties from using, developing, producing, otherwise acquiring, stockpiling, retaining, or 

transferring to anyone, directly or indirectly, anti-personnel landmines, or to assist, encourage, or 

induce, in any way, anyone to engage in any activity prohibited to a State Party under the 

Convention. Australia, Canada, and the United Kingdom have taken the position that its armed 

forces would not violate the Ottawa Convention merely by reason of taking part in joint 

operations with forces of an ally that is not bound by the Ottawa Convention and that uses antipersonnel mines.342

6.13 CLUSTER MUNITIONS

Cluster munitions are not specifically prohibited or restricted by the law of war. DoD has 

policies on cluster munitions. The use of cluster munitions, in certain circumstances, is likely to 

reduce the risk of incidental harm as compared to other weapons.

6.13.1 Description of Cluster Munitions. Cluster munitions may be described as 

munitions composed of a non-reusable canister or delivery body containing multiple, 

conventional explosive submunitions.343 Some munitions that may contain submunitions are not 

considered cluster munitions. For example, nuclear, chemical, and biological weapons, as well 

as obscurants, pyrotechnics, non-lethal systems (e.g., leaflets), non-explosive kinetic effect 

submunitions (e.g., flechettes or rods), and landmines, generally are not considered cluster 

munitions.

 

defenses of Eritrea’s trenches and field fortifications. Thus, the declarations citing landmine use also frequently 

refer to the presence of Eritrean trenches in the area/kushet concerned. In principle, the defensive use of minefields 

to protect trenches would be a lawful use under customary international law.”).

342 Australia, Statement on Ratification of the Convention on the Prohibition of the Use, Stockpiling, Production and 

Transfer of Anti-Personnel Mines and on Their Destruction, Jan. 14, 1999, 2057 UNTS 214, 218 (“It is the 

understanding of Australia that, in the context of operations, exercises or other military activity authorized by the 

United Nations or otherwise conducted in accordance with international law, the participation by the ADF, or 

individual Australian citizens or residents, in such operations, exercises or other military activity conducted in 

combination with the armed forces of States not party to the Convention which engage in activity prohibited under 

the Convention would not, by itself, be considered to be in violation of the Convention.”); Canada, Statement on 

Signature of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel 

Mines and on Their Destruction, Dec. 3, 1997, 2056 UNTS 211, 310 (“It is the understanding of the Government of 

Canada that, in the context of operations, exercises or other military activity sanctioned by the United Nations or 

otherwise conducted in accordance with international law, the mere participation by the Canadian Forces, or 

individual Canadians, in operations, exercises or other military activity conducted in combination with the armed 

forces of States not party to the Convention which engage in activity prohibited under the Convention would not, by 

itself, be considered to be assistance, encouragement or inducement in accordance with the meaning of those terms 

in article 1, paragraph 1 (c).”); 2004 UK MANUAL ¶6.13 (“Members of the United Kingdom armed forces, will not, 

however, be guilty of an offence merely by reason of taking part in joint operations with forces of an ally not bound 

by the Ottawa Convention which deploy landmines.”).

343 Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harm 

to Civilians, Jun. 19, 2008 (“For the purposes of this policy, cluster munitions are defined as munitions composed of 

a non-reusable canister or delivery body containing multiple, conventional explosive submunitions. Excluded from 

the definition are nuclear, chemical, and biological weapons as well as obscurants, pyrotechnics, non-lethal systems 

(e.g., leaflets), non-explosive kinetic effect submunitions (e.g., flechettes or rods), or electronic effects. Landmine 

submunitions are also excluded since they are covered by existing policy and international agreements.”).
404

6.13.2 Use of Cluster Munitions to Reduce the Risk of Incidental Harm. As with 

incendiary weapons, the use of cluster munitions, in certain circumstances, is likely to result in 

less incidental harm than the use of other weapons.344 For example, cluster munitions have been 

used against military objectives containing dangerous forces, such as dams, in order to reduce the 

risk that bombardment of these objectives would release such forces and cause incidental harm to 

the civilian population.345

6.13.3 DoD Policy on Cluster Munitions. DoD has developed policies to minimize the 

negative humanitarian consequences that can sometimes be associated with cluster munitions.346 

Under a 2008 policy, the U.S. armed forces will, after 2018, only employ cluster munitions 

containing submunitions that, after arming, do not result in more than 1% unexploded ordnance 

(UXO) across the range of intended operational environments.

347 Until the end of 2018, cluster 

munitions that exceed the 1% UXO rate may not be used unless approved by the Combatant 

Commander.348 

6.13.4 Convention on Cluster Munitions. The United States is not a Party to the 

Convention on Cluster Munitions.

349 The United States has determined that its national security 

interests cannot be fully ensured consistent with the terms of the Convention on Cluster 

 344 Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harm 

to Civilians, Jun. 19, 2008 (“DoD recognizes that blanket elimination of cluster munitions is unacceptable due not 

only to negative military consequences but also due to potential negative consequences for civilians. Large-scale 

use of unitary weapons, as the only alternative to achieve military objectives, could result, in some cases, in 

unacceptable collateral damage and explosive remnants of war (ERW) issues.”). Refer to § 5.11.6 (Weaponeering 

(E.g., Selecting Appropriate Weapons, Aim Points)).

345 For example, W. Hays Parks, Linebacker and the Law of War, AIR UNIVERSITY REVIEW (Jan.-Feb. 1983) 

(During the Vietnam War, the North Vietnamese placed “AAA gun positions, ground-controlled intercept (GCI) 

radar, and surface-to-air missile (SAM) sites atop or adjacent to dikes, and storing POL [petroleum, oil, and 

lubricants] alongside or on top of dikes as a shield against attack. All were legitimate targets. ... When [the air 

defenses] were finally authorized for attack during Linebacker I, it was with the stipulation that the targets were to 

be attacked with weapons that would minimize the risk of structural damage to the dikes. This was accomplished 

through the use of napalm, strafing, cluster munitions, and other antipersonnel weapons.”).

346 Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harm 

to Civilians, Jun. 19, 2008 (“The DoD policy above is intended to minimize the potential unintended harm to 

civilians and civilian infrastructure of U.S. cluster munitions employment to the extent possible.”); William Cohen, 

Memorandum re: DoD Policy on Submunition Reliability, Jan. 10, 2001 (“Submunition weapons employment in 

Southwest Asia and Kosovo, and major theater war modeling, have revealed a significant unexploded ordnance 

(UXO) concern. ... It is the policy of the DoD to reduce overall UXO through a process of improvement in 

submunition system reliability-the desire is to field future submunitions with a 99% or higher functioning rate. 

Submunition functioning rates may be lower under operational conditions due to environmental factors such as 

terrain and weather.”).

347 Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harm 

to Civilians, Jun. 19, 2008 (“After 2018, the Military Departments and Combatant Commands will only employ 

cluster munitions containing submunitions that, after arming, do not result in more than 1% unexploded ordnance 

(UXO) across the range of intended operational environments.”).

348 Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harm 

to Civilians, Jun. 19, 2008 (“Until the end of 2018, use of cluster munitions that exceed the 1% UXO rate must be 

approved by the Combatant Commander.”).

349 Convention on Cluster Munitions, May 30, 2008, 2688 UNTS 39.
405

Munitions.350 The United States has expressed the view that the Convention on Cluster 

Munitions does not represent an emerging norm or reflect customary international law that 

would prohibit the use of cluster munitions in armed conflict.351

The Convention on Cluster Munitions establishes for its States Parties a number of 

prohibitions and restrictions on certain types of cluster munitions.352 These rules include 

prohibitions on assisting, encouraging, or inducing anyone to engage in any activity prohibited to 

a State Party.353 Despite these restrictions, States Parties and their military personnel and 

nationals may engage in military cooperation and operations with States that are not Parties to 

the Convention on Cluster Munitions that might engage in activities prohibited to a State 

Party.354 Yet, even during such military operations, the Convention on Cluster Munitions does 

not authorize a State Party:

(a) To develop, produce or otherwise acquire cluster munitions; 

(b) To itself stockpile or transfer cluster munitions; 

(c) To itself use cluster munitions; or 

(d) To expressly request the use of cluster munitions in cases where the choice of 

 350 Harold Hongju Koh, Legal Adviser, Department of State, Opening Statement for the United States Delegation to 

the Third Conference of the High Contracting Parties to CCW Protocol V on Explosive Remnants of War, Nov. 9, 

2009 (“We realize many delegations here are parties to the Convention on Cluster Munitions (CCM). However, 

many States, including the United States, have determined that their national security interests cannot be fully 

ensured consistent with the terms of the CCM.”).

351 Ambassador Robert Wood, U.S. Permanent Representative to the Conference on Disarmament, Explanation of 

Vote at the 70th UN General Assembly First Committee on Draft Resolution L.49/Rev.1, “Implementation of the 

Convention on Cluster Munitions,” Nov. 4, 2015, 2015 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL 

LAW 763, 764 (“In general, the lawfulness of the use of a type of weapon under international law does not depend 

on an absence of authorization, but instead depends upon whether the weapon is prohibited. The United States does 

not accept by this or any other standard that the Convention on Cluster Munitions represents an emerging norm or 

reflects customary international law that would prohibit the use of cluster munitions in armed conflict.”).

352 Convention on Cluster Munitions, art. 2(2), May 30, 2008, 2688 UNTS 39, 95 (“‘Cluster munition’ means a 

conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 

kilograms, and includes those explosive submunitions. It does not mean the following: ... (c) A munition that, in 

order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following 

characteristics: (i) Each munition contains fewer than ten explosive submunitions; (ii) Each explosive submunition 

weighs more than four kilograms; (iii) Each explosive submunition is designed to detect and engage a single target 

object; (iv) Each explosive submunition is equipped with an electronic self-destruction mechanism; (v) Each 

explosive submunition is equipped with an electronic self-deactivating feature;”).

353 See, e.g., Convention on Cluster Munitions, art. 1(1), May 30, 2008, 2688 UNTS 39, 94 (“Each State Party 

undertakes never under any circumstances to: (a) Use cluster munitions; (b) Develop, produce, otherwise acquire, 

stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; (c) Assist, encourage or induce 

anyone to engage in any activity prohibited to a State Party under this Convention.”).

354 Convention on Cluster Munitions, art. 21(3), May 30, 2008, 2688 UNTS 39, 113 (“Notwithstanding the 

provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military 

personnel or nationals, may engage in military cooperation and operations with States not party to this Convention 

that might engage in activities prohibited to a State Party.”).
406

munitions used is within its exclusive control.355

6.14 INCENDIARY WEAPONS

The use of incendiary weapons is permissible, but subject to certain restrictions in order 

to reduce the risk of incidental harm to civilians.

6.14.1 Definition of an Incendiary Weapon. An “incendiary weapon” is any weapon or 

munition that is primarily designed to set fire to objects or to cause burn injury to persons 

through the action of flame, heat, or combination thereof, produced by a chemical reaction of a 

substance on the target.356 Only “pure” incendiaries, such as napalm or the type of incendiary 

bombs used in World War II and Korea, are regulated as incendiary weapons.357

6.14.1.1 Fire or Burn Injury Produced by Chemical Reaction of a Substance on 

the Target. Incendiary weapons use a chemical reaction of a substance on the target to create 

flame or heat that destroys or injures.

On the other hand, laser weapons, even if their primary effect is to set fire to objects or 

cause burn injuries, do not constitute “incendiary weapons” under CCW Protocol III on 

Incendiary Weapons because the fire or burn injuries are not produced by a chemical reaction of 

a substance that is delivered to the target.

358 Similarly, chemical weapons cause death or other 

harm through the toxic properties of chemicals themselves, rather than the chemicals causing a 

fire or burn injury.

359

6.14.1.2 Examples of Incendiary Weapons. Examples of incendiary weapons 

include:360

 355 Convention on Cluster Munitions, art. 21(4), May 30, 2008, 2688 UNTS 39, 113.

356 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(1) (defining incendiary weapon as “any weapon or 

munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of 

flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.”).

357 Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 2, Enclosure B to Warren Christopher, 

Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES 

PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 38 (“As a 

result, the Protocol only covers ‘pure’ incendiaries, such as napalm or the type of incendiary bombs used in World 

War II and Korea.”).

358 Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 2, Enclosure B to Warren Christopher, 

Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES 

PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 38 

(“Similarly, laser weapons are not covered even if their primary effect is to set fire to objects or cause burn injuries, 

since they do not deliver burning substances on the target.”).

359 Refer to § 6.8.3.1 (Definition of Chemical Weapons).

360 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(a) (“Incendiary weapons can take the form of, for example, 

flame throwers, fougasses, shells, rockets, grenades, mines, bombs and other containers of incendiary substances.”).
407

• flame throwers;

361

• fougasse;

362 and

• shells, rockets, grenades, mines, bombs, and other containers of incendiary substances, 

such as napalm and thermite.

363

6.14.1.3 Excluded From the Definition of Incendiary Weapons – Weapons With

Incidental Incendiary Effects. Incendiary weapons do not include munitions that may have 

incidental incendiary effects, such as illuminants, tracers, or smoke or signaling systems.

364

For example, white phosphorous is a munition that contains fragments of white 

phosphorous. It is intended primarily for marking or illuminating a target or masking friendly 

force movement by creating smoke. 

Similarly, tracer rounds are not incendiary weapons as they are designed to enable a 

gunner to direct his or her rounds onto a target rather than to set fire to objects. 

6.14.1.4 Excluded From the Definition of Incendiary Weapons – Certain 

Combined-Effects Munitions. Certain combined-effects munitions are excluded from the 

definition of incendiary weapons. These munitions are designed to combine penetration, blast, 

or fragmentation effects with an additional incendiary effect, in which the incendiary effect is not 

specifically designed to cause burn injury to persons, but to be used against objects that are 

military objectives, such as armored vehicles, aircraft, and installations or facilities. Such 

 361 See also International Committee of the Red Cross, Conference of Government Experts on the Use of Certain 

Conventional Weapons (Lucerne, 24.9—18.10.1974): Report, ¶¶69-70 (1975) (“Experts referred to three different 

types of flamethrower: portable, mechanized and emplaced. Emplaced flamethrowers, and such things as flame 

fougasses and incendiary landmines, find their principal application in perimeter defence, both of fixed and of 

temporary positions. ... Portable and mechanized flamethrowers were seen to have several applications of which the 

two most important were the attack on pillboxes, and other such strongpoints, and the burning away of vegetation 

from positions suspected of concealing enemy units.”).

362 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-11 / MARINE CORPS WARFIGHTING PUBLICATION 3-

3.7.2, Flame, Riot Control Agents and Herbicide Operations (Aug. 19, 1996) (“The flame fougasse is a variation of 

an exploding FFE [flame field expedient] in which the flame is projected by explosive means over a preselected 

area. An excellent defensive weapon, the fougasse can also provide illumination as well as produce casualties. On 

Defensive Line Wyoming, during the Korean Conflict, elements of the 1st Cavalry Division emplaced 1,000 drums 

of FFEs in front of fighting positions. The drums were set in the ground at a 45-degree angle with the opening 

toward the enemy. Two examples of flame fougasses are the propellant charge container and the 55-gallon 

container.”).

363 W. Hays Parks, The Protocol on Incendiary Weapons, 30 INTERNATIONAL REVIEW OF THE RED CROSS 543-44 

(Nov.-Dec. 1990) (“Thermite weapons, which contain a mixture of powdered ferric oxide and powdered or granular 

aluminium, are antimateriel and fire-sustaining. Thermite bombs, which burn at temperatures of about 2,400 

degrees Centigrade, were the primary antimateriel incendiaries used by air forces of both sides in World Wars I and 

II. A later version contained barium nitrate and is called thermate, while a more recent variant is triethylaluminium 

(TEA). There has been little use of thermite-type bombs since 1945, in part because there have been few air 

campaigns directed against industrial targets.”).

364 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(b) (“Incendiary weapons do not include: (i) Munitions 

which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems;”).
408

weapons may include armor-piercing projectiles, fragmentation shells, explosive bombs, and 

similar combined-effects munitions.365

6.14.2 Use of Incendiary Weapons Is Permissible. Although subject to certain specific 

restrictions described in § 6.14.3 (Restrictions on the Use of Incendiary Weapons), the use of 

incendiary weapons, including anti-personnel use, is not prohibited. 

6.14.2.1 Use of Non-Incendiary Weapons to Set Fire to Objects or Cause Burn 

Injury to Persons. The use of non-incendiary weapons to set fire to objects or to cause burn 

injury is technically not subject to the additional restrictions described in § 6.14.3 (Restrictions 

on the Use of Incendiary Weapons). For example, white phosphorus may be used as an antipersonnel weapon.366 However, such use must comply with the general rules for the conduct of 

hostilities, including the principles of discrimination and proportionality.367 In addition, feasible 

precautions to reduce the risk of harm to civilians must be taken.368

As a practical matter, however, it may be more effective to attack enemy combatants 

through other means, rather than seeking to cause them burn injury.

369

6.14.3 Restrictions on the Use of Incendiary Weapons. As with other weapons, it is 

prohibited to make the civilian population as such, individual civilians, or civilian objects the 

object of attack by incendiary weapons.370 In addition, it is specifically prohibited to make 

forests or other kinds of plant cover the object of attack by incendiary weapons, except when 

such natural elements are used to cover, conceal, or camouflage combatants or other military 

 365 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(b) (“Incendiary weapons do not include: ... (ii) Munitions 

designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armourpiercing projectiles, fragmentation shells, explosive bombs and similar combined-effects munitions in which the 

incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military 

objectives, such as armoured vehicles, aircraft and installations or facilities.”).

366 For example, Captain James T. Cobb, First Lieutenant Christopher A. LaCour, and Sergeant First Class William 

H. Hight, After-Action Review (AAR) for the Battle of Fallujah, ¶9b, reprinted in FIELD ARTILLERY 23, 26 (Mar.-

Apr. 2005) (“White Phosphorous [WP]. WP proved to be an effective and versatile munition. We used it for 

screening missions at two breeches and, later in the fight, as a potent psychological weapon against the insurgents in 

trench lines and spider holes when we could not get effects on them with HE [High Explosive]. We fired ‘shake and 

bake’ missions at the insurgents, using WP to flush them out and HE to take them out.”).

367 Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected 

to Cause Excessive Incidental Harm).

368 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

369 For example, Peter Pace, Chairman of the Joint Chiefs of Staff, News Briefing with Secretary of Defense Donald 

Rumsfeld and Gen. Peter Pace, Nov. 29, 2005 (“No armed force in the world goes to greater effort than your armed 

force to protect civilians and to be very precise in the way we apply our power. A bullet goes through skin even 

faster than white phosphorus does. So I would rather have the proper instrument applied at the proper time as 

precisely as possible to get the job done in a way that kills as many of the bad guys as possible and does as little 

collateral damage as possible. That is just the nature of warfare.”).

370 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(1) (“It is prohibited in all circumstances to make the 

civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.”).
409

objectives, or are themselves military objectives.371

Similarly, the risks that the use of an incendiary weapon may pose to the civilian 

population should be considered in a proportionality analysis.372

As with the use of other weapons, commanders must take feasible precautions to reduce 

the risk of incidental harm to civilians when using incendiary weapons.

373 

6.14.3.1 Use Against Military Objectives Located in Concentrations of Civilians. 

Subject to a reservation by the United States discussed below, two additional rules apply to the 

use of incendiary weapons against military objectives that are located within a concentration of 

civilians. A “concentration of civilians” means any concentration of civilians, be it permanent or 

temporary, such as in inhabited parts of cities, in inhabited towns or villages, or in camps or 

columns of refugees or evacuees, or groups of nomads.374

First, subject to the U.S. reservation discussed below, it is prohibited to use air-delivered 

incendiary weapons to make any military objective located within a concentration of civilians the 

object of attack.

375

Second, subject to the U.S. reservation discussed below, it is also prohibited to use 

incendiary weapons other than air-delivered incendiary weapons (e.g., ground artillery) to make 

any military objective located within a concentration of civilians the object of attack. However, 

it is not prohibited to use such incendiary weapons against a military objective located within a 

concentration of civilians, when such military objective is clearly separated from the 

concentration of civilians and all feasible precautions are taken with a view to limiting the 

incendiary effects to the military objective and to avoiding, and in any event to minimizing, 

incidental loss of civilian life, injury to civilians, and damage to civilian objects.376

6.14.3.2 U.S. Reservation to CCW Protocol III on Incendiary Weapons. The 

 371 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (“It is prohibited to make forests or other kinds of plant 

cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or 

camouflage combatants or other military objectives, or are themselves military objectives.”).

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

373 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

374 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(2) (“A ‘concentration of civilians’ means any concentration 

of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in 

camps or columns of refugees or evacuees, or groups of nomads.”).

375 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(2) (“It is prohibited in all circumstances to make any 

military objective located within a concentration of civilians the object of attack by air-delivered incendiary 

weapons.”).

376 CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(3) (prohibiting making “any military objective located 

within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered 

incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and 

all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to 

avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian 

objects.”).
410

United States has taken a reservation to CCW Protocol III on Incendiary Weapons for the 

purpose of improving the protection of the civilian population.377 Thus, for the U.S. armed 

forces, incendiary weapons may be used against military objectives located in concentrations of 

civilians where it is judged that such use would cause fewer casualties and/or less collateral 

damage than alternative weapons. However, in such cases, all feasible precautions should be 

taken with a view to limiting the incendiary effects to the military objective and to avoiding, and 

in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to 

civilian objects.378 

For example, the use of incendiary weapons might be the means of attacking enemy 

biological weapons facilities that poses the least risk of incidental harm to the civilian 

population.379 Similarly, the use of incendiary weapons might reduce the number of sorties or 

attacks, and thereby further reduce the risk of incidental harm to the civilian population.

380

6.15 LASER WEAPONS

In general, laser weapons are permissible. They may be used against enemy combatants, 

including to kill and injure them. However, the use of “blinding laser” weapons is prohibited. In 

addition, feasible precautions shall be taken in the employment of laser systems to avoid causing 

permanent blindness. 

 377 Harold Koh, Legal Adviser, Department of State, Letter to Paul Seger, Legal Adviser of Switzerland regarding 

Switzerland’s Position on the U.S. Reservation to Protocol III of the Convention on Certain Conventional Weapons, 

Dec. 30, 2009 (“In our view, this reservation is compatible with the object and purpose of Protocol III. We take the 

view that the object and purpose of Protocol III is to protect civilians from the collateral damage associated with the 

use of incendiary weapons. The narrow reservation taken by the United States is not incompatible with this object 

and purpose. In fact, this reservation ensures that the United States has the ability to provide for even greater 

protection of the civilian population, consistent with Protocol III.”).

378 United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009, 

2562 UNTS 36 (“The United States of America, with reference to Article 2, paragraphs 2 and 3, reserves the right to 

use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such 

use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all 

feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in 

any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”). Refer 

to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of Harm to 

Protected Persons and Objects).

379 Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 3, Enclosure B to Warren Christopher, 

Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES 

PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 39

(“Incendiaries are the only weapons which can effectively destroy certain counter-proliferation targets such as 

biological weapons facilities which require high heat to eliminate bio-toxins. To use only high explosives would 

risk the widespread release of dangerous contaminants with potentially disastrous consequences for the civilian 

population.”).

380 Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 3-4, Enclosure B to Warren 

Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED 

MINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 39-

40 (“Certain flammable military targets are also more readily destroyed by incendiaries. For example, a fuel depot 

could require up to eight times the bombs and sorties to destroy using only high explosives rather than incendiaries. 

Such an increase means a significantly greater humanitarian risk of collateral damage.”).
411

6.15.1 Prohibition on “Blinding Laser” Weapons. It is prohibited to employ laser 

weapons specifically designed, as their sole combat function or as one of their combat functions, 

to cause permanent blindness to unenhanced vision, that is, to the naked eye or to the eye with 

corrective eyesight devices.381 

Any use of such weapons is prohibited, including uses that are not intended to blind.

Although the U.S. armed forces and other militaries use lasers in a variety of roles, such 

as range-finding or causing temporary loss of sight, the United States has not developed or 

fielded a “blinding laser” weapon.

6.15.1.1 Laser Weapon Specifically Designed, as Its Sole Combat Function or 

One of Its Combat Functions. To fall under the above prohibition, the laser device must be 

specifically designed, as a combat function, to cause permanent blindness to unenhanced vision.

On the other hand, blinding as an incidental or collateral effect of the legitimate military 

employment of laser systems, including laser systems used against optical equipment, is not 

prohibited.382 Thus, laser systems and devices used for rangefinding, target designation, 

jamming, dazzling, communications, and weapons guidance do not fall under this prohibition,

even if serious eye injury or permanent blindness may incidentally occur through their use.383 

Similarly, incidental blinding from the use of lasers that are designed to attack or destroy 

material or injure persons as a combat function (but are not specifically designed to blind) would 

be permissible.

6.15.1.2 Permanent Blindness to Unenhanced Vision. “Permanent blindness” is 

defined as irreversible and uncorrectable loss of vision that is seriously disabling with no 

prospect of recovery. Serious disability is equivalent to visual acuity of less than 20/200 Snellen 

measured using both eyes.384

Lasers that are designed to cause a temporary loss of sight, such as laser “dazzlers,”

 381 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 1 (“It is prohibited to employ laser weapons specifically 

designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to 

unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.”).

382 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 3 (“Blinding as an incidental or collateral effect of the 

legitimate military employment of laser systems, including laser systems used against optical equipment, is not 

covered by the prohibition of this Protocol.”).

383 W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, 

Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in

THE ARMY LAWYER 33, 36 (Jun. 1997) (“Choice of the term weapon was intentional to distinguish the prohibited 

system from lasers which are used for rangefinding, jamming, dazzling, communications, weapons guidance, and 

similar purposes.”).

384 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 4 (“For the purpose of this protocol ‘permanent 

blindness’ means irreversible and uncorrectable loss of vision which is seriously disabling with no prospect of 

recovery. Serious disability is equivalent to visual acuity of less than 20/200 Snellen measured using both eyes.”).
412

would not fall under this prohibition.385

Unenhanced vision means the naked eye or the eye with corrective eyesight devices, such 

as ordinary glasses or contact lenses.

386 For example, unenhanced vision does not mean vision 

through direct-view optics, such as binoculars, a telescopic sight, night-vision goggles, or similar 

devices used to increase vision beyond that of an ordinary person without such enhancement. 

Persons using direct-view optics may have an increased risk of eye injury from lasers. 

6.15.2 Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of 

Permanent Blindness. In the employment of laser systems, all feasible precautions shall be taken 

to avoid the incidence of permanent blindness to unenhanced vision.387 Feasible precautions 

may be understood to include those that are practicable or practically possible taking into 

account all circumstances ruling at the time, including humanitarian and military 

considerations.388 Such precautions include training of the armed forces and other practical 

measures, such as promulgating doctrine and rules of engagement.

389

6.15.2.1 Use of Non-Prohibited Laser Systems to Blind Is Not Absolutely 

Prohibited. Although feasible precautions should be taken to avoid blinding, the use of laser 

systems (that are not prohibited as blinding laser weapons) to blind enemy combatants is not 

prohibited if avoiding such harm is not feasible, i.e., if such harm is militarily necessary. For 

example, it would not be prohibited for a soldier to use a non-prohibited laser system to blind an 

enemy combatant to save the user’s life.390

 385 For example, Defense Science Board, Defense Science Board Task Force on Directed Energy Weapons, 13 (Dec. 

2007) (“Laser-based optical incapacitation devices have been deployed to Iraq in response to urgent fielding 

requirements for a non-lethal means to warn or temporarily incapacitate individuals. Marines employing these 

devices have reported that ‘they consistently defuse potential escalation of force incidents.’ Laser devices currently 

employed by the Marine Corps are green laser (532 nm) systems emitting a strong beam that can temporarily reduce 

visual acuity at a distance of 300m or more. It has a nominal ocular hazard minimum distance that the operator must 

avoid to preclude risk of eye injury. The lasers have been successfully used in convoy operations, mounted and 

dismounted patrols, vehicle check points, and entry control points. Army units have also purchased laser optical 

incapacitation devices of various types, principally for use in escalation of force situations and to warn or deter 

drivers of cars approaching checkpoints, U.S. convoys, or fixed-site installations.”).

386 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 1 (defining “unenhanced vision” as “the naked eye or ... 

the eye with corrective eyesight devices.”).

387 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 2 (“In the employment of laser systems, the High 

Contracting Parties shall take all feasible precautions to avoid the incidence of permanent blindness to unenhanced 

vision.”).

388 Refer to § 5.2.3.2 (What Precautions Are Feasible).

389 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 2 (“Such precautions shall include training of their armed 

forces and other practical measures.”).

390 W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, 

Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in

THE ARMY LAWYER 33, 36 (Jun. 1997) (“Finally, although Article 2 requires use of a laser device in a manner 

consistent with the spirit and intent of the Protocol, the delegations could not agree that a soldier should be 

criminally responsible if, in an in extremis situation, he employs a laser device against an enemy combatant to save 

the user’s life.”).
413

6.16 RIOT CONTROL AGENTS

The use of riot control agents is subject to certain prohibitions and restrictions. Riot 

control agents are widely used by governments for law enforcement purposes (such as crowd 

control), but are prohibited as a method of warfare.

6.16.1 Definition of Riot Control Agents. Riot control agents mean any chemical not 

listed in a Schedule Annexed to the Chemical Weapons Convention, which can produce rapidly 

in humans sensory irritation or disabling physical effects that disappear within a short time 

following termination of exposure.391 Riot control agents include, for example, tear gas and 

pepper spray, but generally are understood to exclude the broader class of non-lethal weapons 

that may sometimes be used for riot control or other similar purposes, such as foams, water 

cannons, bean bags, or rubber bullets.

392

The United States does not consider riot control agents to be “chemical weapons,”393 or 

otherwise to fall under the prohibition against asphyxiating, poisonous, or other gases, and all 

analogous liquids, materials, or devices.394

6.16.2 Prohibition on Use of Riot Control Agents as a Method of Warfare. It is 

prohibited to use riot control agents as a method of warfare.395 The United States has understood 

this prohibition not to prohibit the use of riot control agents in war in defensive military modes to 

save lives, such as use of riot control agents:

• in riot control situations in areas under direct and distinct U.S. military control, including 

 391 CHEMICAL WEAPONS CONVENTION art. 2(7) (“‘Riot Control Agent’ means: Any chemical not listed in a 

Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear 

within a short time following termination of exposure.”).

392 Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on 

U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate 

Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST 

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1224 (“[W]hen I refer to ‘riot control agents’ in my testimony 

today I am referring to chemicals not listed in a Chemical Weapons Convention schedule which can produce rapidly 

in humans sensory irritation or disabling physical effects which disappear within a short time following termination 

of exposure. This includes for example, tear gas and pepper spray. I am not referring to the broader class of nonchemical non-lethal weapons that may sometimes be used for riot control or other similar purposes such as foams, 

water cannons, bean bags, or rubber bullets.”).

393 Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on 

U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate 

Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST 

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1223-24 (“The Administration agrees with the policy 

statement in the National Defense Authorization Act for FY2006, section 1232 (the ‘Ensign Amendment’); namely, 

‘It is the policy of the United States that riot control agents are not chemical weapons ... .’”).

394 See Statement by Secretary Rusk, Mar. 24, 1965, 52 DEPARTMENT OF STATE BULLETIN 528 (Apr. 12, 1965) 

(explaining that tear gas used by U.S. forces in Vietnam is not “gas that is prohibited by the Geneva convention of 

1925 or any other understandings about the use of gas”). Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, 

and All Analogous Liquids, Materials, or Devices).

395 CHEMICAL WEAPONS CONVENTION art. 1(5) (“Each State Party undertakes not to use riot control agents as a 

method of warfare.”).
414

controlling rioting POWs;

396

• in situations in which civilians are used to mask or screen attacks and civilian casualties 

can be reduced or avoided;397

• in rescue missions in remotely isolated areas, of downed aircrews and passengers, and 

escaping prisoners; and

• in rear echelon areas outside the zone of immediate combat to protect convoys from civil 

disturbances, terrorists, and paramilitary organizations.

These uses are as articulated in Executive Order 11850.398 Even though Executive Order 

11850 predated the Chemical Weapons Convention (which could have created legal obligations 

that were inconsistent with Executive Order 11850), interpreting the Chemical Weapons 

Convention consistent with Executive Order 11850 was a condition of the Senate giving its 

advice and consent to ratification of the Chemical Weapons Convention.

399 Thus, Executive 

Order 11850 has remained an important part of U.S. policy on the use of riot control agents.400

 396 For example, WALTER G. HERMES, UNITED STATES ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTING 

FRONT 256-57 (1992) (“Armed with stones, flails, sharpened tent poles, steel pipes, and knives, the defiant prisoners 

[held during the Korean War] screamed insults and challenges. The infantry maintained excellent discipline, using 

tear gas and concussion grenades to break up the prisoners’ opposition. Herding the prisoners into a corner, the 

U.N. troops forced them into their new compound. Only one prisoner was killed and twenty-nine were wounded as 

against one U.S. injury.”).

397 For example, JACK SHULIMSON & MAJOR CHARLES M. JOHNSON, U.S. MARINES IN VIETNAM: THE LANDING AND 

THE BUILDUP 1965, 91 (1978) (“Operation STOMP unfolded according to plan. Company H made its LVT assault 

through the mud flats of Qui Nhon bay while Company F landed by helicopter to cut off the VC avenues of retreat. 

The two companies closed their cordon around the Viet Cong, killing 26 and capturing three. With escape denied, 

the enemy went underground, taking many local peasants with them for use as human shields. During the mop-up 

of the area, a much-publicized action occurred. As the Marines slowly and methodically searched out a complex of 

tunnels, they threw in tear gas grenades to flush out the occupants. Seventeen VC were forced from hiding in this 

fashion, as well as more than 300 women, children, and old men, not one of whom was harmed.”).

398 Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents, 

40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The United States renounces, as a matter of national policy, ... first 

use of riot control agents in war except in defensive military modes to save lives such as: (a) Use of riot control 

agents in riot control situations in areas under direct and distinct U.S. military control, to include controlling rioting 

prisoners of war. (b) Use of riot control agents in situations in which civilians are used to mask or screen attacks 

and civilian casualties can be reduced or avoided. (c) Use of riot control agents in rescue missions in remotely 

isolated areas, of downed aircrews and passengers, and escaping prisoners. (d) Use of riot control agents in rear 

echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and 

paramilitary organizations.”).

399 Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress 

143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“The President shall take no measure, and prescribe no rule or 

regulation, which would alter or eliminate Executive Order 11850 of April 8, 1975.”).

400 Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on 

U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate 

Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST 

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1223-24 (“The policy governing the use of riot control agents 

by the U.S. Armed Forces is expressed principally in the Chemical Weapons Convention, the resolution of 

ratification of the Chemical Weapons Convention, and Executive Order 11850 [Renunciation of Certain Uses in 
415

In addition to being permitted in war in defensive military modes to save lives, it is not 

prohibited to use riot control agents in military operations outside of war or armed conflict. 

Specifically, the United States has taken the position that riot control agents may be used in the 

conduct of:

• peacetime military operations within an area of ongoing armed conflict when the United 

States is not a party to the conflict;

• consensual peacekeeping operations when the use of force is authorized by the receiving 

state, including operations pursuant to Chapter VI of the United Nations Charter; and

• peacekeeping operations when force is authorized by the Security Council under Chapter 

VII of the United Nations Charter.401 

6.17 HERBICIDES

The United States has renounced, as a matter of national policy, first use of herbicides in 

war except use, under regulations applicable to their domestic use, for control of vegetation 

within U.S. bases and installations or around their immediate defensive perimeters.402

6.17.1 Definition of Herbicide. An herbicide is a chemical compound that will kill or 

damage plants. Herbicides that are harmless to human beings are not prohibited under the rule 

 

War of Chemical Herbicides and Riot Control Agents (1975)]. The Administration agrees with the policy statement 

in the National Defense Authorization Act for FY2006, section 1232 (the ‘Ensign Amendment’); namely, ‘It is the 

policy of the United States that riot control agents are not chemical weapons and that the President may authorize 

their use as legitimate, legal, and nonlethal alternatives to the use of force that, as provided in Executive Order 

11850 (40 Fed. Reg. 16187) and consistent with the resolution of ratification of the Chemical Weapons Convention, 

may be employed by members of the Armed Forces in war in defensive military modes to save lives, including the 

illustrative purposes cited in Executive Order 11850.’”) (insertions in original).

401 Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress 

143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“Prior to the deposit of the United States instrument of 

ratification, the President shall certify to Congress that the United States is not restricted by the Convention in its use 

of riot control agents, including the use against combatants who are parties to a conflict, in any of the following 

cases: (i) UNITED STATES NOT A PARTY. — The conduct of peacetime military operations within an area of ongoing 

armed conflict when the United States is not a party to the conflict (such as recent use of the United States Armed 

Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUAL PEACEKEEPING. — Consensual peacekeeping operations 

when the use of force is authorized by the receiving state, including operations pursuant to Chapter VI of the United 

Nations Charter. (iii) CHAPTER VII PEACEKEEPING. — Peacekeeping operations when force is authorized by the 

Security Council under Chapter VII of the United Nations Charter.”); William J. Clinton, Message to the Senate on 

the Chemical Weapons Convention, Apr. 25, 1997, 1997-I PUBLIC PAPERS OF THE PRESIDENTS 495, 497 (“In 

accordance with Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by 

the Convention in its use of riot control agents in various peacetime and peacekeeping operations. These are 

situations in which the United States is not engaged in a use of force of a scope, duration and intensity that would 

trigger the laws of war with respect to U.S. forces.”).

402 Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents, 

40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The United States renounces, as a matter of national policy, first use 

of herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within 

U.S. bases and installations or around their immediate defensive perimeters.”).
416

against the use of poison or poisoned weapons.403

6.17.2 Chemical Weapons Convention and Herbicides. The Chemical Weapons 

Convention does not add any new constraints on the use of herbicides.

404 The Chemical 

Weapons Convention addresses toxic chemicals that cause death, temporary incapacitation, or 

permanent harm to humans or animals, rather than plants.405 Moreover, even if an herbicide 

were such a toxic chemical, its use would likely be for a purpose not prohibited by the Chemical 

Weapons Convention.406

6.17.3 ENMOD Convention and Herbicides. Under certain circumstances, the use of 

herbicides could be prohibited by the ENMOD Convention.407 However, the use of herbicides to 

control vegetation within U.S. bases and installations or around their immediate defensive 

perimeters has been understood by the United States to be permitted under international law.

408 

6.17.4 Authority Under Domestic Law to Employ Herbicides in War. Use of herbicides 

in war by the U.S. armed forces requires advance Presidential approval.409 Additional 

regulations govern the use of herbicides.

6.18 NUCLEAR WEAPONS

There is no general prohibition in treaty or customary international law on the use of 

nuclear weapons.410 The United States has not accepted a treaty rule that prohibits the use of 

 403 Refer to § 6.8.1.2 (Death or Permanent Disability to Persons).

404 Article-by-Article Analysis of the Chemical Weapons Convention, 2-3, Attachment to Peter Tarnoff, Acting, 

Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS 

CONVENTION 2-3 (“The seventh preambular paragraph, although not legally binding, nevertheless recognizes the 

prohibition, embodied in the pertinent agreements and relevant principles of international law, of the use of 

herbicides as a method of warfare. Thus, the Convention does not add any new constraints on the use of 

herbicides.”).

405 Refer to § 6.8.3.1 (Definition of Chemical Weapons).

406 Refer to § 6.8.3.4 (Certain Uses of Toxic Chemicals Not Prohibited).

407 Second Review Conference of the Parties to the ENMOD Convention in September 1992, Final Declaration, 

(“The Conference confirms that the military or any other hostile use of herbicides as an environmental modification 

technique in the meaning of Article II [of the ENMOD Convention] is a method of warfare prohibited by Article I 

[of the ENMOD Convention] if such use of herbicides upsets the ecological balance of a region, thus causing 

widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party [to 

the ENMOD Convention].”).

408 Article-by-Article Analysis of the Chemical Weapons Convention, 3, Attachment to Peter Tarnoff, Acting, Letter 

of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION

3 (“It is the understanding of the United States that the uses of herbicides proscribed [sic] in Executive Order 11850 

do not cause such effects [that would violate the ENMOD Convention] and are allowed under international law.”).

409 Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents, 

40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The Secretary of Defense shall take all necessary measures to ensure 

that the use by the Armed Forces of the United States of any ... chemical herbicides in war is prohibited unless such 

use has Presidential approval, in advance.”).

410 Written Statement of the Government of the United States of America, 21, Jun. 20, 1995, I.C.J., Request by the 

United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear 
417

nuclear weapons per se, and thus nuclear weapons are lawful weapons for the United States. 

The law of war governs the use of nuclear weapons, just as it governs the use of 

conventional weapons.411 For example, nuclear weapons must be directed against military 

objectives.412 In addition, attacks using nuclear weapons must not be conducted when the 

expected incidental harm to civilians is excessive compared to the military advantage expected to 

be gained.413

6.18.1 U.S. Policy on the Use of Nuclear Weapons. The United States has developed 

national policy on the use of nuclear weapons. For example, the United States has stated that it 

would only consider the use of nuclear weapons in extreme circumstances to defend the vital 

interests of the United States or its allies and partners.414 In addition, the United States has stated

that it will not use or threaten to use nuclear weapons against non-nuclear weapons States that 

are party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear nonproliferation obligations.415

6.18.2 Nuclear Weapons and Arms Control Obligations. Nuclear weapons are regulated 

by a number of arms control agreements restricting their development, testing, production, 

proliferation, deployment, use, and, with respect to specific types, possession. Some of these 

agreements may not apply in times of war. Guidance on nuclear arms control agreements is 

beyond the scope of this manual. 

6.18.3 AP I Provisions and Nuclear Weapons. Parties to AP I have expressed the 

 

Weapons (noting that “there is no general prohibition in conventional or customary international law on the use of 

nuclear weapons,”).

411 See, e.g., Secretary of Defense, Report on Nuclear Employment Strategy of the United States Specified in Section 

491 of 10 U.S.C., 4-5 (Jun. 2013) (“The new guidance makes clear that all plans must also be consistent with the 

fundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of 

distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects. 

The United States will not intentionally target civilian populations or civilian objects.”); Written Statement of the 

Government of the United States of America, 21, Jun. 20, 1995, I.C.J., Request by the United Nations General 

Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“The United States 

has long taken the position that various principles of the international law of armed conflict would apply to the use 

of nuclear weapons as well as to other means and methods of warfare. This in no way means, however, that the use 

of nuclear weapons is precluded by the law of war.”); Edward R. Cummings, The Role of Humanitarian Law, Sept. 

25, 1982, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3421, 3422 (As 

far back as 1965 the U.S. supported a UN Resolution that essentially stated “that all governments and other 

authorities responsible for action in armed conflicts should conform at least to the following principle[] ... that the 

general principles of the Law of War apply to nuclear and similar weapons.”).

412 Refer to § 5.5 (Discrimination in Conducting Attacks).

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

414 Department of Defense, Nuclear Posture Review Report 17 (Apr. 2010) (“The United States would only consider 

the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its allies 

and partners.”).

415 Department of Defense, Nuclear Posture Review Report 17 (Apr. 2010) (“The United States will not use or 

threaten to use nuclear weapons against non-nuclear weapons states that are party to the NPT and in compliance 

with their nuclear non-proliferation obligations.”).
418

understanding that the rules relating the use of weapons introduced by AP I were intended to 

apply exclusively to conventional weapons.416 Thus, Parties to AP I have understood AP I 

provisions not to regulate or prohibit the use of nuclear weapons.417 Although the United States 

is not a Party to AP I, the United States participated in the diplomatic conference that negotiated 

AP I based upon this understanding.418

6.18.4 Authority to Launch Nuclear Weapons. The authority to launch nuclear weapons 

generally is restricted to the highest levels of government. The domestic law and procedures 

concerning nuclear weapons employment are beyond the scope of this manual.

 416 Belgium, Statement on Ratification of AP I, May 20, 1986, 1435 UNTS 367 (“The Belgian Government, bearing 

in mind the preparatory work on the international instrument which is hereby ratified, wishes to stress that the 

Protocol was drawn up in order to expand the protection conferred by humanitarian law exclusively when 

conventional weapons are used in armed conflicts, without prejudice to the provisions of international law relating to 

the use of other types of weapons.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 

529 (“It is the understanding of the Federal Republic of Germany that the rules relating to the use of weapons 

introduced by Additional Protocol I were intended to apply exclusively to conventional weapons without prejudice 

to any other rules of international law applicable to other types of weapons.”); Italy, Statement on Ratification of AP 

I, Feb. 27, 1986, 1425 UNTS 438 (“It is the understanding of the Government of Italy that the rules relating to the 

use of weapons introduced by Additional Protocol I were intended to apply exclusively to conventional weapons. 

They do not prejudice any other rule of international law applicable to other types of weapons.”); Netherlands, 

Statement on Ratification of AP I, Jun. 26, 1987, 1477 UNTS 300 (“With regard to Protocol I as a whole: It is the 

understanding of the Government of the Kingdom of the Netherlands that the rules introduced by Protocol I relating 

to the use of weapons were intended to apply and consequently do apply solely to conventional weapons, without 

prejudice to any other rules of international law applicable to other types of weapons;”); Spain, Statement on 

Ratification of AP I, Apr. 21, 1989, 1537 UNTS 390, 391 (“This Protocol shall be understood to apply in its 

particular field, exclusively to conventional weapons and without prejudice to the norms of international law 

applicable to weapons of any other type.”).

417 See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“It continues to 

be the understanding of the United Kingdom that the rules introduced by the Protocol apply exclusively to 

conventional weapons without prejudice to any other rules of international law applicable to other types of weapons. 

In particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear 

weapons.”); France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED 

CONLFICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800 (2004) (“Referring to 

the draft protocol drawn up by the International Committee of the Red Cross which constituted the basis of 1974-

1977 Diplomatic Conference, the Government of the French Republic continues to consider that the Protocol’s 

provisions concern exclusively conventional weapons and do not regulate or prohibit the use of nuclear weapons, 

nor should they constitute a prejudice to any other rules of international law applicable to other activities necessary 

for the exercise by France of its inherent right of self-defense.”); Canada, Statement on Ratification of AP I, Nov. 20, 

1990, 1591 UNTS 462, 463 (“It is the understanding of the Government of Canada that the rules introduced by 

Protocol I were intended to apply exclusively to conventional weapons. In particular, the rules so introduced do not 

have any effect on and do not regulate or prohibit the use of nuclear weapons.”).

418 APPENDIX TO 1985 CJCS MEMO ON AP I 89 (“The United States participated in the negotiation of the Protocol on 

the assumption that its rules on the conduct of combat operations would not apply to the use of nuclear weapons, a 

position based on statements in the introduction to the original draft of the Protocol tabled by the Red Cross.”); 

United States, Statement on Signature of AP I, 1125 UNTS 434 (“1. It is the understanding of the United States of 

America that the rules established by this Protocol were not intended to have any effect on and do not regulate or 

prohibit the use of nuclear weapons.”). See also International Committee of the Red Cross, Introduction, Draft 

Additional Protocols to the Geneva Conventions of August 12, 1949, June 1973, 2, reprinted in I OFFICIAL RECORDS 

OF THE CDDH Part Three (“Problems relating to atomic, bacteriological and chemical warfare are subjects of 

international agreements or negotiations by governments, and in submitting these draft Additional Protocols, the 

ICRC does not intend to broach those problems.”).
419

6.19 EXPLOSIVE ORDNANCE

Information should be kept on the use of explosive ordnance in order to reduce the risk 

posed by explosive remnants of war once the conflict has ended.419 If possible, explosive 

ordnance that must be abandoned should be left in a safe and secure manner, and information

should be recorded and retained on its abandonment.420 In addition, generic preventive measures

should be taken during the life-cycle of explosive ordnance in order to minimize the occurrence 

of explosive remnants of war.421

6.19.1 Definitions of Explosive Ordnance, Unexploded Ordnance, and Abandoned 

Ordnance. 

6.19.1.1 Definition of Explosive Ordnance. “Explosive ordnance” means 

conventional munitions containing explosives, with the exception of mines, booby-traps, and 

other devices as defined in the CCW Amended Mines Protocol.422 

As a factual matter, mines, booby-traps, and other devices may constitute explosive 

ordnance, but the legal definition of explosive ordnance in the CCW Protocol V on Explosive 

Remnants of War excludes these items because they are addressed by the CCW Amended Mines 

Protocol.423

The reference to conventional munitions in the definition of “explosive ordnance” means 

that chemical, biological, and nuclear weapons are not covered by the CCW Protocol V on 

Explosive Remnants of War.424 

6.19.1.2 Definition of Unexploded Ordnance (UXO). “Unexploded ordnance”

means explosive ordnance that has been primed, fused, armed, or otherwise prepared for use and 

used in an armed conflict.425 “Explosive ordnance” is defined in § 6.19.1.1 (Definition of 

Explosive Ordnance). UXO may have been fired, dropped, launched, or projected, and should 

have exploded, but failed to do so.426 For example, UXO does not include weapons that have 

 419 Refer to § 6.19.2 (Using Explosive Ordnance).

420 Refer to § 6.19.3 (Abandoning Explosive Ordnance).

421 Refer to § 6.19.5 (Generic Preventive Measures During the Life-Cycle of Explosive Ordnance Aimed at 

Minimizing the Occurrence of Explosive Remnants of War).

422 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(1) (“Explosive ordnance means conventional 

munitions containing explosives, with the exception of mines, booby traps and other devices as defined in Protocol 

II of this Convention as amended on 3 May 1996.”).

423 Refer to § 6.12.1 (Definition of Mine); § 6.12.2 (Definition of Booby-Trap); § 6.12.3 (Definition of “Other 

Devices” Similar to Mines).

424 WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 303 (2009) (“Specifically, the Protocol 

does not apply to chemical, biological, or nuclear weapons.”).

425 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(2) (“Unexploded ordnance means explosive 

ordnance that has been primed, fused, armed, or otherwise prepared for use and used in an armed conflict.”).

426 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(2) (“It may have been fired, dropped, launched or 

projected and should have exploded but failed to do so.”).
420

remained in the armory or arsenal and that have not been prepared for firing.427 UXO are

sometimes called “duds.”

6.19.1.3 Definition of Abandoned Explosive Ordnance (AXO). “Abandoned 

explosive ordnance” means explosive ordnance that has not been used during an armed conflict, 

that has been left behind or dumped by a party to an armed conflict, and that is no longer under 

control of the party that left it behind or dumped it.428 AXO may or may not have been primed, 

fused, armed, or otherwise prepared for use.429 For example, mortar rounds in a supply point 

that is abandoned as a result of a quick departure would constitute AXO. 

6.19.2 Using Explosive Ordnance. To the maximum extent possible and as far as 

practicable, information should be recorded and retained on the use of explosive ordnance during 

armed conflict in order to reduce the risks posed by explosive remnants of war.430 The best 

practice is to record and retain, as accurately as possible, the following information regarding 

explosive ordnance that may have become unexploded ordnance:

• the location of areas targeted using explosive ordnance;

• the approximate number, type, and nature of explosive ordnance used in these areas; and

• the general location of known and probable unexploded ordnance.

431

6.19.3 Abandoning Explosive Ordnance. Where it has been necessary to abandon 

explosive ordnance in the course of operations, the best practice, if possible, is to leave it in a 

safe and secure manner.

432 In addition, to the maximum extent possible and as far as practicable, 

 427 WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 303 (2009) (“[Unexploded ordnance as 

defined the CCW Protocol V on Explosive Remnants of War] also does not include weapons that have remained in 

the armoury or arsenal and that have not been prepared for firing. The definition is quite specific. The ordnance 

must have been prepared for use and must have been actually used in an armed conflict.”).

428 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(3) (“Abandoned explosive ordnance means 

explosive ordnance that has not been used during an armed conflict, that has been left behind or dumped by a party 

to an armed conflict, and which is no longer under control of the party that left it behind or dumped it.”).

429 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(3) (“Abandoned explosive ordnance may or may 

not have been primed, fused, armed or otherwise prepared for use.”).

430 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(1) (“High Contracting Parties and parties to an 

armed conflict shall to the maximum extent possible and as far as practicable record and retain information on the 

use of explosive ordnance ... to facilitate the rapid marking and clearance, removal or destruction of explosive 

remnants of war, risk education and the provision of relevant information to the party in control of the territory and 

to civilian populations in that territory.”).

431 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Recording of 

information: Regarding explosive ordnance which may have become UXO a State should endeavour to record the 

following information as accurately as possible: (i) the location of areas targeted using explosive ordnance; (ii) the 

approximate number of explosive ordnance used in the areas under (i); (iii) the type and nature of explosive 

ordnance used in areas under (i); (iv) the general location of known and probable UXO;”).

432 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Where a State has been 

obliged to abandon explosive ordnance in the course of operations, it should endeavour to leave AXO in a safe and 

secure manner ... .”).
421

information should be recorded and retained on the abandonment of explosive ordnance in order 

to reduce the risks posed by explosive remnants of war.433 The best practice is to record as 

accurately as possible and retain the following information regarding abandoned explosive 

ordnance:

• the location of AXO;

• the approximate amount of AXO at each specific site; and

• the types of AXO at each specific site.434

6.19.4 Storing Records on the Use or Abandonment of Explosive Ordnance. Information 

regarding the use or abandonment of explosive ordnance should be stored in such a manner as to 

allow for its subsequent retrieval in accordance with § 6.20.6 (Making Available Information on 

Used or Abandoned Explosive Ordnance That May Have Become Explosive Remnants of War).

6.19.5 Generic Preventive Measures During the Life-Cycle of Explosive Ordnance 

Aimed at Minimizing the Occurrence of Explosive Remnants of War. Generic preventive 

measures aimed at minimizing the occurrence of explosive remnants of war are described in part 

3 of the Technical Annex to the CCW Protocol V on Explosive Remnants of War.

435 Such 

measures include munitions manufacturing management, munitions management, training, 

transfer, and future production. When producing or procuring explosive ordnance, to the extent 

possible, and as appropriate, these best practice measures should be implemented and respected 

during the life-cycle of explosive ordnance.436

6.19.5.1 Munitions Manufacturing Management. The following best practices 

should be applied during munitions manufacturing management:

• Production processes should be designed to achieve the greatest reliability of munitions.

• Production processes should be subject to certified quality control measures.

 433 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(1) (“High Contracting Parties and parties to an 

armed conflict shall to the maximum extent possible and as far as practicable record and retain information on the 

use of explosive ordnance or abandonment of explosive ordnance, to facilitate the rapid marking and clearance, 

removal or destruction of explosive remnants of war, risk education and the provision of relevant information to the 

party in control of the territory and to civilian populations in that territory.”).

434 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Where a State has been 

obliged to abandon explosive ordnance in the course of operations, it should endeavour to leave AXO in a safe and 

secure manner and record information on this ordnance as follows: (v) the location of AXO; (vi) the approximate 

amount of AXO at each specific site; (vii) the types of AXO at each specific site.”).

435 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 9(1) (“Bearing in mind the different situations and 

capacities, each High Contracting Party is encouraged to take generic preventive measures aimed at minimizing the 

occurrence of explosive remnants of war, including, but not limited to, those referred to in part 3 of the Technical 

Annex.”).

436 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3 (“States producing or 

procuring explosive ordnance should to the extent possible and as appropriate endeavour to ensure that the following 

measures are implemented and respected during the life-cycle of explosive ordnance.”).
422

• During the production of explosive ordnance, certified quality assurance standards that 

are internationally recognized should be applied.

• Acceptance testing should be conducted through live-fire testing over a range of 

conditions or through other validated procedures.

• High reliability standards should be required in the course of explosive ordnance 

transactions and transfers.437

6.19.5.2 Munitions Management. In order to ensure the best possible long-term 

reliability of explosive ordnance, best practice norms and operating procedures with respect to its 

storage, transport, field storage, and handling should be applied in accordance with the following

guidance.438

• Explosive ordnance, where necessary, should be stored in secure facilities or appropriate 

containers that protect the explosive ordnance and its components in a controlled 

atmosphere, if necessary.439

• Explosive ordnance should be transported to and from production facilities, storage 

facilities, and the field in a manner that minimizes the risk of damage to the explosive 

ordnance.440

• Appropriate containers and controlled environments, where necessary, should be used 

when stockpiling and transporting explosive ordnance.441

• The risk of explosions in stockpiles should be minimized by the use of appropriate 

 437 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(a) (“(i) Production 

processes should be designed to achieve the greatest reliability of munitions. (ii) Production processes should be 

subject to certified quality control measures. (iii) During the production of explosive ordnance, certified quality 

assurance standards that are internationally recognised should be applied. (iv) Acceptance testing should be 

conducted through live-fire testing over a range of conditions or through other validated procedures. (v) High 

reliability standards should be required in the course of explosive ordnance transactions and transfers.”).

438 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b) (“In order to ensure the 

best possible long-term reliability of explosive ordnance, States are encouraged to apply best practice norms and 

operating procedures with respect to its storage, transport, field storage, and handling in accordance with the 

following guidance.”).

439 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(i) (“Explosive ordnance, 

where necessary, should be stored in secure facilities or appropriate containers that protect the explosive ordnance 

and its components in a controlled atmosphere, if necessary.”).

440 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(ii) (“A State should 

transport explosive ordnance to and from production facilities, storage facilities and the field in a manner that 

minimizes damage to the explosive ordnance.”).

441 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(iii) (“Appropriate 

containers and controlled environments, where necessary, should be used by a State when stockpiling and 

transporting explosive ordnance.”).
423

stockpile arrangements.442

• Appropriate explosive ordnance logging, tracking, and testing procedures should be 

applied. These procedures should include information on: (1) the date of manufacture of 

each number, lot, or batch of explosive ordnance; (2) where the explosive ordnance has 

been; (3) under what conditions the explosive ordnance has been stored; and (4) to what 

environmental factors the explosive ordnance has been exposed.443

• Periodically, stockpiled explosive ordnance should undergo, where appropriate, live-fire

testing to ensure that munitions function as desired.444

• Sub-assemblies of stockpiled explosive ordnance should, where appropriate, undergo 

laboratory testing to ensure that munitions function as desired.445

• Where necessary, appropriate action (including adjustment to the expected shelf-life of 

ordnance) should be taken as a result of information acquired by logging, tracking, and 

testing procedures, in order to maintain the reliability of stockpiled explosive 

ordnance.446

6.19.5.3 Training. All personnel who are involved in handling, transporting, and 

using explosive ordnance should be properly trained through suitable training programs on the 

munitions that they will be required to handle.447

6.19.5.4 Transfer. When contemplating transfers of explosive ordnance to 

another State that did not previously possess that type of explosive ordnance, reasonable efforts 

should be made to ensure that the receiving State has the capability to store, maintain, and use 

 442 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(iv) (“The risk of 

explosions in stockpiles should be minimised by the use of appropriate stockpile arrangements.”).

443 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(v) (“States should apply

appropriate explosive ordnance logging, tracking and testing procedures, which should include information on the 

date of manufacture of each number, lot or batch of explosive ordnance, and information on where the explosive 

ordnance has been, under what conditions it has been stored, and to what environmental factors it has been 

exposed.”).

444 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(vi) (“Periodically, 

stockpiled explosive ordnance should undergo, where appropriate, live-firing testing to ensure that munitions 

function as desired.”).

445 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(vii) (“Sub-assemblies of 

stockpiled explosive ordnance should, where appropriate, undergo laboratory testing to ensure that munitions 

function as desired.”).

446 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(viii) (“Where necessary, 

appropriate action, including adjustment to the expected shelf-life of ordnance, should be taken as a result of 

information acquired by logging, tracking and testing procedures, in order to maintain the reliability of stockpiled 

explosive ordnance.”).

447 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(c) (“The proper training of 

all personnel involved in the handling, transporting and use of explosive ordnance is an important factor in seeking 

to ensure its reliable operation as intended. States should therefore adopt and maintain suitable training programmes 

to ensure that personnel are properly trained with regard to the munitions with which they will be required to deal.”).
424

that explosive ordnance correctly.448

6.19.5.5 Future Production. When producing, procuring, or developing explosive 

ordnance, ways and means of improving the reliability of explosive ordnance should be 

considered with a view to achieving the highest possible reliability.449

6.20 EXPLOSIVE REMNANTS OF WAR

There are certain obligations with respect to explosive remnants of war on territory under 

U.S. control. Most of these obligations are trigged upon the cessation of active hostilities.

6.20.1 Definition of Explosive Remnants of War. Under the CCW Protocol V on 

Explosive Remnants of War, “explosive remnants of war” means: (1) unexploded ordnance

(UXO); and (2) abandoned explosive ordnance (AXO).

450

“Unexploded ordnance” is defined in § 6.19.1.2 (Definition of Unexploded Ordnance 

(UXO)). “Abandoned explosive ordnance” is defined in § 6.19.1.3 (Definition of Abandoned 

Explosive Ordnance (AXO)).

6.20.2 Scope of the Obligations Created by the CCW Protocol V on Explosive Remnants 

of War. The CCW Protocol V on Explosive Remnants of War applies to explosive remnants of 

war on the land territory, including internal waters, of States that are Parties to the Protocol.

451

The CCW Protocol V on Explosive Remnants of War applies to situations resulting from

armed conflict and occupation.452

Certain obligations in the CCW Protocol V on Explosive Remnants of War only apply to 

explosive remnants of war that were created after the entry into force of the Protocol for the High 

Contracting Party on whose territory the explosive remnants of war exist.

453 These obligations 

 448 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(d) (“A State planning to 

transfer explosive ordnance to another State that did not previously possess that type of explosive ordnance should 

endeavour to ensure that the receiving State has the capability to store, maintain and use that explosive ordnance 

correctly.”).

449 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(e) (“A State should examine 

ways and means of improving the reliability of explosive ordnance that it intends to produce or procure, with a view 

to achieving the highest possible reliability.”).

450 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(4) (“Explosive remnants of war means unexploded 

ordnance and abandoned explosive ordnance.”).

451 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(2) (“This Protocol shall apply to explosive remnants 

of war on the land territory including internal waters of High Contracting Parties.”).

452 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (“This Protocol shall apply to situations resulting 

from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.”).

453 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(4) (“Articles 3, 4, 5 and 8 of this Protocol apply to 

explosive remnants of war other than existing explosive remnants of war as defined in Article 2, paragraph 5 of this 

Protocol.”); CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(5) (“Existing explosive remnants of war

means unexploded ordnance and abandoned explosive ordnance that existed prior to the entry into force of this 

Protocol for the High Contracting Party on whose territory it exists.”).
425

include obligations discussed in:

• § 6.20.3 (Taking Feasible Precautions to Protect Civilians From Explosive Remnants of 

War);

• § 6.20.6 (Making Available Information on Used or Abandoned Explosive Ordnance 

That May Have Become Explosive Remnants of War);

• § 6.20.7 (Clearance, Removal, or Destruction of Explosive Remnants of War From 

Territory Under a Party’s Control); and

• § 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War 

From a Party’s Military Operations in Areas Outside Its Control).

6.20.3 Taking Feasible Precautions to Protect Civilians From Explosive Remnants of 

War. Parties to the CCW Protocol V on Explosive Remnants of War and parties to an armed 

conflict shall take all feasible precautions in the territory under their control affected by 

explosive remnants of war to protect the civilian population, individual civilians, and civilian 

objects from the risks and effects of explosive remnants of war.

454 

Feasible precautions are those precautions that are practicable or practically possible, 

taking into account all circumstances ruling at the time, including humanitarian and military 

considerations.455 

These precautions may include warnings, risk education to the civilian population, and 

marking, fencing, and monitoring of territory affected by explosive remnants of war, as set out in 

Part 2 of the Technical Annex to CCW Protocol V on Explosive Remnants of War.456

6.20.3.1 Best Practice Elements on Warnings and Risk Education. Warnings are 

the punctual provision of cautionary information to the civilian population, intended to minimize 

risks caused by explosive remnants of war in affected territories.457

Risk education to the civilian population should consist of risk education programs to 

facilitate information exchange between affected communities, government authorities, and 

 454 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“High Contracting Parties and parties to an 

armed conflict shall take all feasible precautions in the territory under their control affected by explosive remnants 

of war to protect the civilian population, individual civilians and civilian objects from the risks and effects of 

explosive remnants of war.”).

455 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“Feasible precautions are those precautions 

which are practicable or practicably possible, taking into account all circumstances ruling at the time, including 

humanitarian and military considerations.”). Refer to § 5.2.3.2 (What Precautions Are Feasible).

456 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“These precautions may include warnings, risk 

education to the civilian population, marking, fencing and monitoring of territory affected by explosive remnants of 

war, as set out in Part 2 of the Technical Annex.”).

457 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(a) (“Warnings are the 

punctual provision of cautionary information to the civilian population, intended to minimise risks caused by 

explosive remnants of war in affected territories.”).
426

humanitarian organizations so that affected communities are informed about the threat from 

explosive remnants of war. Risk education programs are usually long-term activities.

458

All programs of warnings and risk education should, where possible, take into account 

prevailing national and international standards, including the International Mine Action 

Standards.

459

Warnings and risk education should be provided to the affected civilian population,

which comprises civilians living in or around areas containing explosive remnants of war and 

civilians who transit such areas.

460

Warnings should be given as soon as possible, depending on the context and the 

information available. A risk education program should replace a warnings program as soon as 

possible. Warnings and risk education always should be provided to the affected communities at 

the earliest possible time.461

Third parties, such as international organizations and non-governmental organizations,

should be used when there are insufficient resources and skills to deliver efficient risk 

education.462

If possible, additional resources for warnings and risk education should be provided. 

Such items might include: provision of logistical support, production of risk education materials, 

financial support, and general cartographic information.

463

6.20.3.2 Best Practices on Marking, Fencing, and Monitoring Areas Containing

Explosive Remnants of War. When possible, at any time during the course of a conflict and at 

 458 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(b) (“Risk education to the 

civilian population should consist of risk education programmes to facilitate information exchange between affected 

communities, government authorities and humanitarian organisations so that affected communities are informed 

about the threat from explosive remnants of war. Risk education programmes are usually a long term activity.”).

459 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(c) (“All programmes of 

warnings and risk education should, where possible, take into account prevailing national and international 

standards, including the International Mine Action Standards.”).

460 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(d) (“Warnings and risk 

education should be provided to the affected civilian population which comprises civilians living in or around areas 

containing explosive remnants of war and civilians who transit such areas.”).

461 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(e) (“Warnings should be 

given, as soon as possible, depending on the context and the information available. A risk education programme 

should replace a warnings programme as soon as possible. Warnings and risk education always should be provided 

to the affected communities at the earliest possible time.”).

462 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(f) (“Parties to a conflict 

should employ third parties such as international organisations and non-governmental organisations when they do 

not have the resources and skills to deliver efficient risk education.”).

463 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(g) (“Parties to a conflict 

should, if possible, provide additional resources for warnings and risk education. Such items might include: 

provision of logistical support, production of risk education materials, financial support and general cartographic 

information.”).
427

the earliest possible time and to the maximum extent possible, the best practice is for areas 

containing explosive remnants of war to be marked, fenced, and monitored so as to ensure the 

effective exclusion of civilians, in accordance with the following provisions.464

Warning signs based on methods of marking recognized by the affected community 

should be used in the marking of suspected hazardous areas. Signs and other hazardous area 

boundary markers should as far as possible be visible, legible, durable, and resistant to 

environmental effects and should clearly identify which side of the marked boundary is 

considered safe and which side is considered to be within the area affected by explosive 

remnants of war.465

An appropriate structure should be put in place with responsibility for the monitoring and 

maintenance of permanent and temporary marking systems, integrated with national and local 

risk education programs.466

6.20.4 Protecting, as Far as Feasible, Humanitarian Missions and Organizations From the 

Effects of Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive 

Remnants of War and party to an armed conflict shall protect, as far as feasible, from the effects 

of explosive remnants of war, humanitarian missions and organizations that are or will be 

operating in the area under the control of the Party to the CCW Protocol V on Explosive 

Remnants of War or party to an armed conflict and with that party’s consent.467

In addition, each Party to the CCW Protocol V on Explosive Remnants of War and party 

to an armed conflict shall, upon request by such a humanitarian mission or organization, provide, 

as far as feasible, information on the location of all explosive remnants of war that it is aware of 

in territory where the requesting humanitarian mission or organization will operate or is 

operating.468 Other treaties or certain U.N. Security Council resolutions may provide a higher 

 464 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(h) (“When possible, at any 

time during the course of a conflict and thereafter, where explosive remnants of war exist the parties to a conflict 

should, at the earliest possible time and to the maximum extent possible, ensure that areas containing explosive 

remnants of war are marked, fenced and monitored so as to ensure the effective exclusion of civilians, in accordance 

with the following provisions.”).

465 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(i) (“Warning signs based on 

methods of marking recognised by the affected community should be utilised in the marking of suspected hazardous 

areas. Signs and other hazardous area boundary markers should as far as possible be visible, legible, durable and 

resistant to environmental effects and should clearly identify which side of the marked boundary is considered to be 

within the explosive remnants of war affected area and which side is considered to be safe.”).

466 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(j) (“An appropriate structure 

should be put in place with responsibility for the monitoring and maintenance of permanent and temporary marking 

systems, integrated with national and local risk education programmes.”).

467 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(1) (“Each High Contracting Party and party to an 

armed conflict shall: (a) Protect, as far as feasible, from the effects of explosive remnants of war, humanitarian 

missions and organizations that are or will be operating in the area under the control of the High Contracting Party 

or party to an armed conflict and with that party’s consent.”).

468 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(1) (“Each High Contracting Party and party to an 

armed conflict shall: ... (b) Upon request by such a humanitarian mission or organization, provide, as far as 

feasible, information on the location of all explosive remnants of war that it is aware of in territory where the 

requesting humanitarian mission or organization will operate or is operating.”).
428

level of additional protection.469

6.20.5 Obligations Under the CCW Protocol V on Explosive Remnants of War That Are 

Triggered by the Cessation of Active Hostilities. Certain obligations under the CCW Protocol V 

on Explosive Remnants of War are triggered by the cessation of active hostilities. These 

obligations include those obligations addressed in:

• § 6.20.6 (Making Available Information on Used or Abandoned Explosive Ordnance 

That May Have Become Explosive Remnants of War);

• § 6.20.7 (Clearance, Removal, or Destruction of Explosive Remnants of War From 

Territory Under a Party’s Control); and

• § 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War

From a Party’s Military Operations in Areas Outside Its Control).

The determination that active hostilities have ceased for the purposes of triggering these 

obligations would be made at the national level.

In addition, peace treaties or similar agreements negotiated in connection with the 

settlement of armed conflicts may also allocate responsibilities with respect to explosive 

remnants of war.470 Nothing in the CCW Protocol V on Explosive Remnants of War precludes 

future arrangements in connection with the settlement of armed conflicts, or assistance connected 

thereto, to allocate responsibilities with respect to explosive remnants of war in a manner that 

respects the essential spirit and purpose of the CCW Protocol V on Explosive Remnants of 

War.

471

 469 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(2) (“The provisions of this Article are without 

prejudice to existing International Humanitarian Law or other international instruments as applicable or decisions by 

the Security Council of the United Nations which provide for a higher level of protection.”).

470 For example, Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam Concerning the 

Cease-fire in South Viet-Nam and the Joint Military Commissions, art. 5(a), Jan. 27, 1972, 935 UNTS 251, 253 

(“Within fifteen days after the cease-fire comes into effect, each party shall do its utmost to complete the removal or 

deactivation of all demolition objects, mine-fields, traps, obstacles or other dangerous objects placed previously, so 

as not to hamper the population’s movement and work, in the first place on waterways, roads and railroads in South 

Viet-Nam. Those mines which cannot be removed or deactivated within that time shall be clearly marked and must 

be removed or deactivated as soon as possible.”); Protocol to the Agreement on Ending the War and Restoring Peace 

in Viet-Nam Concerning the Removal, Permanent Deactivation, or Destruction of Mines in the Territorial Waters, 

Ports, Harbors, and Waterways of the Democratic Republic of Viet-Nam, art. 5, Jan. 27, 1973, 935 UNTS 393, 395 

(“The United States shall be responsible for the mine clearance on inland waterways of the Democratic Republic of 

Viet-Nam. The Democratic Republic of Viet-Nam shall, to the full extent of its capabilities, actively participate in 

the mine clearance with the means of surveying, removal and destruction and technical advice supplied by the 

United States.”).

471 United States, Statement on Consent to Be Bound by CCW Protocol V on Explosive Remnants of War, Jan. 21, 

2009, 2562 UNTS 39, 40 (“It is the understanding of the United States of America that nothing in Protocol V would 

preclude future arrangements in connection with the settlement of armed conflicts, or assistance connected thereto, 

to allocate responsibilities under Article 3 in a manner that respects the essential spirit and purpose of Protocol V”). 

See also Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 3-4, MESSAGE 

FROM THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE 
429

6.20.6 Making Available Information on Used or Abandoned Explosive Ordnance That 

May Have Become Explosive Remnants of War. Without delay after the cessation of active 

hostilities and as far as practicable, Parties to the CCW Protocol V on Explosive Remnants of

War and parties to an armed conflict have an obligation, subject to their legitimate security 

interests, to make available certain information on used or abandoned explosive ordnance, which 

may have become explosive remnants of war, to certain recipients.

472

6.20.6.1 Timing of the Release of Information. The best practice is for the 

information to be released as soon as possible, taking into account such matters as any ongoing 

military and humanitarian operations in the affected areas, the availability and reliability of 

information, and relevant security issues.473

6.20.6.2 Recipients of the Released Information. The information shall be made 

available to the party or parties in control of the affected territory and, upon request, to other 

relevant organizations that the party providing the information believes are, or will be,

undertaking risk education and the marking and clearance, removal, or destruction of explosive 

remnants of war in the affected area.474 

The best practice is to release this information to the party or parties in control of the 

affected territory and to those persons or institutions that the releasing State is satisfied are, or 

will be, involved in UXO or AXO clearance in the affected area, or in the education of the 

civilian population on the risks of UXO or AXO.475

 

REMNANTS OF WAR 13-14 (“During the negotiations, the United States and other delegations raised the need to 

reconcile this Protocol with other international agreements or arrangements related to the settlement of armed 

conflict, in order to avoid unintended consequences in connection with peace treaties or similar arrangements. In the 

context of armed conflict, the parties to the conflict themselves will be in the best position to determine how the 

responsibilities for ERW should fit into an overall settlement.”).

472 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (“High Contracting Parties and parties to an 

armed conflict which have used or abandoned explosive ordnance which may have become explosive remnants of 

war shall, without delay after the cessation of active hostilities and as far as practicable, subject to these parties’ 

legitimate security interests, make available such information to the party or parties in control of the affected area, 

bilaterally or through a mutually agreed third party including inter alia the United Nations or, upon request, to other 

relevant organizations which the party providing the information is satisfied are or will be undertaking risk 

education and the marking and clearance, removal or destruction of explosive remnants of war in the affected 

area.”).

473 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(iv) (“Timing: The 

information should be released as soon as possible, taking into account such matters as any ongoing military and 

humanitarian operations in the affected areas, the availability and reliability of information and relevant security 

issues.”).

474 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (information shall be made available “to the 

party or parties in control of the affected area, ... or, upon request, to other relevant organizations which the party 

providing the information is satisfied are or will be undertaking risk education and the marking and clearance, 

removal or destruction of explosive remnants of war in the affected area.”).

475 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(ii) (“Recipient: The 

information should be released to the party or parties in control of the affected territory and to those persons or 

institutions that the releasing State is satisfied are, or will be, involved in UXO or AXO clearance in the affected 

area, in the education of the civilian population on the risks of UXO or AXO.”).
430

6.20.6.3 Mechanism for the Release of Information. This information may be 

made available bilaterally (e.g., directly from the United States to the recipient) or through a 

mutually agreed third party (e.g., the United Nations).476 In addition, a best practice would be to 

make use of those mechanisms established internationally or locally for the release of such 

information, such as through the United Nations Mine Action Service (UNMAS), the 

Information Management System for Mine Action (IMSMA), and other expert agencies, as 

considered appropriate by the releasing State.477

6.20.6.4 Best Practices for the Content of Released Information on UXO. The 

best practice is for the released information on UXO to contain details on:

• the general location of known and probable UXO;

• the types and approximate number of explosive ordnance used in the targeted areas;

• the method of identifying the explosive ordnance including color, size, and shape, and 

other relevant markings; and

• the method for safe disposal of the explosive ordnance.478

This information may be drawn from the information recorded and retained when using 

explosive ordnance.479

6.20.6.5 Best Practices for the Content of Released Information on AXO. The 

best practice is for the released information on AXO to contain details on:

• the location of the AXO;

• the approximate number of AXO at each specific site;

• the types of AXO at each specific site;

• the method of identifying the AXO, including color, size, and shape;

 476 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (information shall be made available “bilaterally 

or through a mutually agreed third party including inter alia the United Nations”).

477 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(iii) (“Mechanism: A 

State should, where feasible, make use of those mechanisms established internationally or locally for the release of 

information, such as through UNMAS, IMSMA, and other expert agencies, as considered appropriate by the 

releasing State.”).

478 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(i) (“On UXO the released 

information should contain details on: (1) the general location of known and probable UXO; (2) the types and 

approximate number of explosive ordnance used in the targeted areas; (3) the method of identifying the explosive 

ordnance including colour, size and shape and other relevant markings; (4) the method for safe disposal of the 

explosive ordnance.”).

479 Refer to § 6.19.2 (Using Explosive Ordnance); § 6.19.4 (Storing Records on the Use or Abandonment of 

Explosive Ordnance).
431

• information on type and methods of packing for AXO;

• the state of readiness; and

• the location and nature of any booby traps known to be present in the area of AXO.480

This information may be drawn from the information recorded and retained when 

abandoning explosive ordnance.481

6.20.7 Clearance, Removal, or Destruction of Explosive Remnants of War From

Territory Under a Party’s Control. After the cessation of active hostilities and as soon as 

feasible, each Party to the CCW Protocol V on Explosive Remnants of War and party to an 

armed conflict shall mark and clear, remove, or destroy explosive remnants of war in affected 

territories under its control.482 This obligation is consistent with long-established customary 

international law principles of sovereignty and responsibility.483 In particular, the following 

measures are to be taken in such territories: 

• surveying and assessing the threat posed by explosive remnants of war; 

• assessing and prioritizing the needs and practicability in terms of marking and clearance, 

removal, or destruction;

• marking and clearing, removing, or destroying explosive remnants of war; and

• taking steps to mobilize resources to carry out these activities.484

 480 TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(i) (“On AXO the released 

information should contain details on: (5) the location of the AXO; (6) the approximate number of AXO at each 

specific site; (7) the types of AXO at each specific site; (8) the method of identifying the AXO, including colour, 

size and shape; (9) information on type and methods of packing for AXO; (10) state of readiness; (11) the location 

and nature of any booby traps known to be present in the area of AXO.”).

481 Refer to § 6.19.3 (Abandoning Explosive Ordnance); § 6.19.4 (Storing Records on the Use or Abandonment of 

Explosive Ordnance).

482 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(2) (“After the cessation of active hostilities and as 

soon as feasible, each High Contracting Party and party to an armed conflict shall mark and clear, remove or destroy 

explosive remnants of war in affected territories under its control.”).

483 Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 3, MESSAGE FROM 

THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE 

REMNANTS OF WAR 13 (“During the negotiations [about CCW Protocol V on Explosive Remnants of War], some 

delegations proposed that the responsibility to clear unexploded munitions should be shifted to the party that used 

the munitions. Such a provision would have been contrary to the long-established customary principle of the rights 

and responsibilities of a sovereign state over its territory; responsibility should be assigned to the entity in the best 

position to exercise it.”).

484 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(3) (“After the cessation of active hostilities and as 

soon as feasible, each High Contracting Party and party to an armed conflict shall take the following measures in 

affected territories under its control, to reduce the risks posed by explosive remnants of war: (a) survey and assess 

the threat posed by explosive remnants of war; (b) assess and prioritize needs and practicability in terms of marking 
432

In conducting these activities, international standards, including the International Mine 

Action Standards, should be taken into account.485 Areas affected by explosive remnants of war 

that are assessed to pose a serious humanitarian risk are to be accorded priority status for 

clearance, removal, or destruction.486

Territories under its control include territory over which the State is an Occupying Power.

An Occupying Power assumes responsibility for the safety of the civilian population, including 

responsibilities associated with explosive remnants of war.

487

6.20.8 Providing Assistance to Facilitate the Removal of Explosive Remnants of War

From a Party’s Military Operations in Areas Outside Its Control. In cases where a user of 

explosive ordnance that has become explosive remnants of war does not exercise control of the 

territory, the user shall, after the cessation of active hostilities, provide where feasible, inter alia,

technical, financial, material or human resources assistance, bilaterally or through a mutually 

agreed third party, including, inter alia, through the United Nations system or other relevant 

organizations, to facilitate the marking and clearance, removal, or destruction of such explosive 

remnants of war.

488

 

and clearance, removal or destruction; (c) mark and clear, remove or destroy explosive remnants of war; (d) take 

steps to mobilize resources to carry out these activities.”).

485 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(4) (“In conducting the above activities High 

Contracting Parties and parties to an armed conflict shall take into account international standards, including the 

International Mine Action Standards.”).

486 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(2) (“Areas affected by explosive remnants of war 

which are assessed pursuant to paragraph 3 of this Article as posing a serious humanitarian risk shall be accorded 

priority status for clearance, removal or destruction.”).

487 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

488 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(1) (“Each High Contracting Party and party to an 

armed conflict shall bear the responsibilities set out in this Article with respect to all explosive remnants of war in 

territory under its control. In cases where a user of explosive ordnance which has become explosive remnants of 

war, does not exercise control of the territory, the user shall, after the cessation of active hostilities, provide where 

feasible, inter alia technical, financial, material or human resources assistance, bilaterally or through a mutually 

agreed third party, including inter alia through the United Nations system or other relevant organizations, to 

facilitate the marking and clearance, removal or destruction of such explosive remnants of war.”).
433

VII –Wounded, Sick, Shipwrecked, Dead, and the Medical Services

Chapter Contents

7.1 Introduction

7.2 Application of the Protections of the GWS and GWS-Sea

7.3 Respect and Protection of the Wounded, Sick, and Shipwrecked

7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick, 

Shipwrecked, and Dead

7.5 Humane Treatment and Care of Enemy Military Wounded, Sick, and 

Shipwrecked in the Power of a Party to the Conflict

7.6 Accountability Information From the Enemy Military Wounded, Sick, 

Shipwrecked, and Dead

7.7 Treatment and Handling of Enemy Military Dead

7.8 Respect and Protection of Categories of Medical and Religious Personnel

7.9 Captured Medical and Religious Personnel

7.10 Military Medical Units and Facilities

7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment

7.12 Hospital Ships, Sick-Bays in Warships, and Coastal Rescue Craft

7.13 Chartered Medical Transport Ships

7.14 Military Medical Aircraft

7.15 Display of the Distinctive Emblem to Facilitate Identification

7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant 

Mothers

7.17 Civilian Hospitals and Their Personnel

7.18 Land and Sea Civilian Hospital Convoys

7.19 Civilian Medical Aircraft

7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked

7.1 INTRODUCTION

This Chapter addresses the protection of the wounded, sick, shipwrecked, and dead, both 

on the battlefield and after having fallen into the hands of the enemy during international armed 

conflict. It also addresses the rights, duties, and liabilities of military medical and religious 

personnel, and the protection of military medical units, facilities, and transports. Lastly, it 

addresses the protection of civilians who are wounded, sick, infirm, or maternity cases, and 

civilian hospitals.

Hospital and safety zones are addressed in Chapter V.1 Rights and obligations of neutral 

States with respect to the wounded, sick, and shipwrecked are addressed in Chapter XV.

2

 Rules 

for the protection of medical personel and the wounded, sick, and shipwrecked during non-

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

2 Refer to § 15.3.2.4 (Authorized Humanitarian Assistance Is Not a Violation of Neutrality); § 15.5.2.1 (Exception 

for Authorized Medical Personnel); § 15.16.2 (Neutral Reception of the Wounded, Sick, and Shipwrecked); § 15.18

(Authorized Passage of Wounded and Sick Combatants Through Neutral Territory).
434

international armed conflict are addressed in Chapter XVII.3

7.1.1 Interpretation and Application of Provisions Relating to Medical Issues in the 

GWS, GWS-Sea, GPW, and GC. The GWS and GWS-Sea underlie most of the international 

law rules applicable to the United States for: (1) the protection of the wounded, sick, 

shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious 

personnel; and (3) the protection of military medical units, facilities, and transports.

In addition to the rules of the GWS and GWS-Sea, the GPW also has rules on the medical 

treatment of POWs that may apply to persons who are wounded and sick.

4

 The GWS and GWSSea, however, have rules for the protection of the wounded, sick, shipwrecked, and dead who are 

not POWs (e.g., they are on the battlefield and not in the power of the adverse party, they died 

without being captured).

The GC has provisions relating to the protection of civilians who are wounded, sick, 

infirm, or maternity cases, and civilian hospitals.

5 The GC also has rules addressing medical 

care for civilians in occupied territory.

6

7.1.1.1 Interpretation of the GWS and GWS-Sea. As with the GPW and GC, the 

provisions of the GWS and GWS-Sea should be interpreted in light of the principles that underlie 

the treatment of the wounded, sick, shipwrecked, dead, and the medical services, and, in 

particular, in light of the goal of promoting the care of the wounded and sick.7 The subsequent 

practice of States in applying the GWS and GWS-Sea could also assist in interpreting their

provisions because States’ decades of experience in applying the GWS and GWS-Sea may be 

very helpful in understanding their requirements.8

7.1.1.2 Special Agreements Under the GWS and GWS-Sea. Under the GWS and 

GWS-Sea, States may conclude a variety of special agreements during international armed 

conflict to facilitate the protection of the wounded, sick, shipwrecked, and others protected by 

the GWS and GWS-Sea. The GWS and GWS-Sea specifically provide for agreements:

• to entrust to an effective and impartial organization the duties of the Protecting Powers;

9

• to establish an armistice or suspension of fire, or local arrangement to permit the removal, 

 3 Refer to § 17.14 (Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC); § 17.15 (Protection of 

Medical and Religious Personnel and Medical Transports in NIAC).

4 Refer to § 9.14 (Medical Attention for Interned POWs).

5 Refer to § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers); § 7.17 (Civilian 

Hospitals and Their Personnel).

6 Refer to § 11.15 (Public Health and Hygiene).

7 Refer to § 9.1.2 (Interpretation and Application of the GPW); § 10.1.1 (Interpretation and Application of the GC).

8 Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

9 Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties 

Under the 1949 Geneva Conventions).
435

exchange, and transport of the wounded, sick, and shipwrecked;10

• to establish and recognize hospital zones and localities;11

• to establish the corresponding ranks for the medical personnel, including the staff of any 

authorized voluntary aid societies, in order to help determine the senior retained medical 

officer in POW camps;

12

• to put neutral observers on board ships to verify the strict observation of provisions of the 

GWS-Sea or verify the equipment carried on board is exclusively for the treatment of the 

wounded and sick, or for the prevention of disease;13

• to determine the percentage of personnel to be retained, in proportion to the number of 

POWs, and the distribution of the retained personnel in POW camps;14

• to establish flights or additional markings for medical aircraft;15

• to approve chartered medical transport ships;16

• between the belligerent parties and a neutral Power on the wounded, sick, and 

shipwrecked who are disembarked onto the neutral Power’s territory;17

• to use the most modern methods available to facilitate the identification of hospital 

ships;18 and

• on the procedure, or to select an umpire who will decide the procedure, to be followed for 

an inquiry concerning any alleged violation of the GWS or GWS-Sea.19

In addition to these agreements expressly provided for in the GWS and GWS-Sea, Parties 

to the GWS or GWS-Sea may conclude other special agreements for all matters concerning 

 10 Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the 

Wounded).

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

12 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

13 Refer to § 7.13.1 (Agreement to Place Neutral Observers on Chartered Medical Transports); § 7.12.2.6 (Control 

and Search of Hospital Ships and Coastal Rescue Craft).

14 Refer to § 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained).

15 Refer to § 7.14 (Military Medical Aircraft).

16 Refer to § 7.13 (Chartered Medical Transport Ships).

17 Refer to § 7.14.6.2 (Detention of the Wounded, Sick, or Shipwrecked).

18 Refer to § 7.12.3.5 (Agreements to Facilitate the Identification of Hospital Ships).

19 Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).
436

which they may deem it suitable to make separate provision.20 

No special agreement shall adversely affect the situation of wounded, sick, and 

shipwrecked persons, of members of the medical personnel, or of chaplains, as defined by the 

GWS or the GWS-Sea, nor restrict the rights that the GWS or GWS-Sea confer upon them.21

Wounded, sick, and shipwrecked persons, as well as medical personnel and chaplains, 

shall continue to have the benefit of such agreements as long as the GWS or GWS-Sea is 

applicable to them, except where express provisions to the contrary are contained in these or in 

subsequent agreements, or where more favorable measures have been taken with regard to them 

by one or other of the parties to the conflict.22

7.2 APPLICATION OF THE PROTECTIONS OF THE GWS AND GWS-SEA

7.2.1 Circumstances and Duration of Application of the GWS and GWS-Sea. In general, 

the GWS-Sea addresses the protection of persons at sea, while the GWS applies to persons on 

land. In case of hostilities between land and naval forces of parties to the conflict, the provisions 

of the GWS-Sea shall apply only to forces on board ship.23

For the wounded and sick, the GWS and GWS-Sea provide corresponding protections 

until these persons no longer suffer from that condition. For example, the GWS would no longer 

cover a detained member of the armed forces who recovers from his or her wounds, although the 

GPW would continue to apply to that person because he or she is a POW.

24 

 20 GWS art. 6 (“In addition to the agreements expressly provided for in Articles 10, 15, 23, 28, 31, 36, 37 and 52, the 

High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it 

suitable to make separate provision.”); GWS-SEA art. 6 (“In addition to the agreements expressly provided for in 

Articles 10, 18, 31, 38, 39, 40, 43 and 53, the High Contracting Parties may conclude other special agreements for 

all matters concerning which they may deem it suitable to make separate provision.”).

21 GWS art. 6 (“No special agreement shall adversely affect the situation of the wounded and sick, of members of 

the medical personnel or of chaplains, as defined by the present Convention, nor restrict the rights which it confers 

upon them.”); GWS-SEA art. 6 (“No special agreement shall adversely affect the situation of wounded, sick and 

shipwrecked persons, of members of the medical personnel or of chaplains, as defined by the present Convention, 

nor restrict the rights which it confers upon them.”).

22 GWS art. 6 (“Wounded and sick, as well as medical personnel and chaplains, shall continue to have the benefit of 

such agreements as long as the Convention is applicable to them, except where express provisions to the contrary are 

contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with 

regard to them by one or other of the Parties to the conflict.”); GWS-SEA art. 6 (“Wounded, sick and shipwrecked 

persons, as well as medical personnel and chaplains, shall continue to have the benefit of such agreements as long as 

the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid 

or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or 

other of the Parties to the conflict.”).

23 GWS-SEA art. 4 (“In case of hostilities between land and naval forces of Parties to the conflict, the provisions of 

the present Convention shall apply only to forces on board ship.”).

24 GWS COMMENTARY 65 (“It is clear, however, that the Convention will cease to apply to the wounded and sick 

from the moment they are cured. This does not result from the actual Article under review, but from the general 

structure of the Convention. While in enemy hands, the wounded and sick—who are also prisoners of war—enjoy 

protection under both the First and Third Conventions. Once they have regained their health, only the Third 

Convention, relative to the treatment of prisoners of war, applies.”).
437

For protected persons who have fallen into the hands of the enemy, the GWS shall apply 

until their final repatriation.

25 The GWS-Sea does not specify when it ceases to apply, but once 

persons who are covered by its provisions reach land, the GWS applies. Forces put ashore shall 

immediately become subject to the provisions of the GWS.26 If dead persons are landed, the 

provisions of the GWS shall be applicable.27 Retained personnel at sea shall be subject, on 

landing, to the provisions of the GWS.28

7.2.2 Non-Renunciation of Rights Secured by the GWS or GWS-Sea. Wounded, sick,

and shipwrecked persons, as well as military medical and religious personnel, may in no 

circumstances renounce in part or in entirety the rights secured to them by the GWS or the GWSSea, or by special agreements, if any, referred to in Article 6 of the GWS or the GWS-Sea.

29 A 

similar provision of the GPW applies to POWs, and a similar provision of the GC applies to 

protected persons.30

This rule is intended to prevent States from evading their obligations by coercing enemy 

nationals in their power to waive their rights.31 The prohibition on the non-renunciation of rights 

is based on a recognition that: (1) persons in the hands of the enemy are in a vulnerable position; 

(2) it would be difficult to establish whether they had voluntarily renounced their rights; and (3) 

an absolute prohibition would best serve the interests of the majority.32

 25 GWS art. 5 (“For the protected persons who have fallen into the hands of the enemy, the present Convention shall 

apply until their final repatriation.”). Compare § 9.3.6 (Commencement and Duration of POW Status and 

Treatment).

26 GWS-SEA art. 4 (“Forces put ashore shall immediately become subject to the provisions of the Geneva 

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 

12, 1949.”).

27 GWS-SEA art. 20 (“If dead persons are landed, the provisions of the Geneva Convention for the Amelioration of 

the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be applicable.”).

28 GWS-SEA art. 37 (“Retained personnel shall be subject, on landing, to the provisions of the Geneva Convention 

for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949.”).

29 GWS art. 7 (“Wounded and sick, as well as members of the medical personnel and chaplains, may in no 

circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the 

special agreements referred to in the foregoing Article, if such there be.”); GWS-SEA art. 7 (“Wounded, sick and 

shipwrecked persons, as well as members of the medical personnel and chaplains, may in no circumstances 

renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements 

referred to in the foregoing Article, if such there be.”).

30 Refer to § 9.3.7 (Non-Renunciation of Rights Secured by the GPW); § 10.3.6 (Non-Renunciation of Rights 

Secured by the GC).

31 GWS COMMENTARY 78-79 (“When a State offers to persons detained by it the choice of another status, such a 

step is usually dictated by its own interest. Experience has proved that such persons may be subjected to pressure in 

order to influence their choice. The pressure may vary in its intensity and be either more or less apparent; but it 

nevertheless constitutes a violation of their moral and sometimes even of their physical integrity. The inevitable 

result of such practices is to expose the protected persons to a two-fold series of what may on occasion be very 

serious drawbacks, first from the fact that they are under pressure, and secondly, as already indicated, from their 

partial or total renunciation of the protection accorded to them by the Convention.”).

32 See GWS COMMENTARY 79-80 (“But in the end the Diplomatic Conference unanimously adopted the present 

wording—mainly for the reasons given above, that is to say, the danger of allowing the persons concerned the 
438

This rule does not prohibit States from reassigning their own military medical and 

religious personnel to non-medical duties or from transferring their own personnel outside of the 

medical service. Similarly, this rule constitutes an obligation on States and does not directly 

bind individuals.

33

7.2.3 Reprisals Prohibited. Reprisals against the wounded, sick, or shipwrecked persons, 

personnel, buildings, vessels, or equipment protected by the GWS or GWS-Sea are prohibited.34

7.3 RESPECT AND PROTECTION OF THE WOUNDED, SICK, AND SHIPWRECKED

Members of the armed forces and other persons mentioned in Article 13 of the GWS and 

the GWS-Sea, who are wounded, sick, or shipwrecked, shall be respected and protected in all 

circumstances.35 Such persons are among the categories of persons placed hors de combat;

making them the object of attack is strictly prohibited.36

7.3.1 Definitions of Wounded, Sick, and Shipwrecked. 

7.3.1.1 Wounded or Sick. The meanings of “wounded” and “sick” are a matter of 

common sense and good faith.37 They include:

 choice of renouncing their rights, and the difficulty, and even impossibility, of proving the existence of duress or 

pressure. Among the reasons given in favour of the present Article 7, two points call for notice. The Conference 

did not overlook the fact that the absolute character of the rule drafted might entail for some persons what one 

delegate termed ‘unfortunate’ results. It adopted the rule, because it seemed to safeguard the interests of the 

majority. If provision were made for exceptions in the case of certain individuals, would that not at once open a 

breach which others, in much greater numbers, would, perhaps, have cause to regret?”).

33 GWS COMMENTARY 85 (“One last question remains to be considered. Rights entail obligations. With the focus 

on the individual under Article 7, can the rules of the Conventions, or certain of them, be considered as obligations 

which are directly incumbent on the persons protected? There can be no doubt that certain stipulations, such as the 

respect due to the wounded and sick, are also incumbent on persons who can claim protection under the Convention. 

For example, a member of the medical personnel who, profiting by his duties, plundered the wounded or dead on the 

battlefield, would be liable to the punishment which the law of his country or of the enemy stipulates in of the 

obligation by which every contracting State is bound to repress such breaches. This question arises in connection 

with Article 7, which appears to take the form of an obligation on the persons protected, stating, as it does, that the 

latter ‘may in no circumstances renounce ...’. It was for this reason that, in their ‘Remarks and Proposals’ submitted 

to the Diplomatic Conference, the International Committee of the Red Cross pointed out that the general effect of 

the Conventions was to impose obligations on the States parties to the Conventions rather than on individuals, and 

proposed to draft Article 7 in that sense.”).

34 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

35 GWS art. 12 (“Members of the armed forces and other persons mentioned in the following Article, who are 

wounded or sick, shall be respected and protected in all circumstances.”); GWS-SEA art. 12 (“Members of the armed 

forces and other persons mentioned in the following Article, who are at sea and who are wounded, sick or 

shipwrecked, shall be respected and protected in all circumstances, it being understood that the term ‘shipwreck’ 

means shipwreck from any cause and includes forced landings at sea by or from aircraft.”).

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

37 See also GWS COMMENTARY 136 (“No attempt has ever been made in the Geneva Convention to define what is 

meant by a ‘wounded or sick’ combatant; nor has there ever been any definition of the degree of severity of a wound 

or a sickness entitling the wounded or sick combatant to respect. That is as well; for any definition would 

necessarily be restrictive in character, and would thereby open the door to every kind of misinterpretation and abuse. 
439

• combatants who have been rendered unconscious or otherwise have been incapacitated 

because of their wounds or sickness;38 and

• combatants who have surrendered as a consequence of their health.39

To merit respect and protection as “wounded” or “sick” under the law of war, combatants 

must abstain from hostile acts or attempts to evade capture.40

7.3.1.2 Shipwrecked. For the purpose of applying the protections afforded by the 

GWS-Sea, the term “shipwreck” means shipwreck from any cause and includes forced landings 

at sea by or from aircraft.41

The shipwrecked may be understood to include those in distress at sea or stranded on the 

coast who are also helpless.42 To be considered “shipwrecked,” persons must be in need of 

assistance and care, and they must refrain from any hostile act.43 For example, shipwrecked 

persons do not include combatant personnel engaged in amphibious, underwater, or airborne 

attacks who are proceeding ashore.44

7.3.2 Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS 

and GWS-Sea. The GWS and GWS-Sea apply to the wounded, sick, and shipwrecked belonging 

 

The meaning of the words ‘wounded and sick’ is a matter of common sense and good faith. They cover combatants 

who have fallen by reason of a wound or sickness of any kind, or who have ceased to fight and laid down their arms 

as a consequence of what they themselves think about their health. It is the fact of falling or laying down of arms 

which constitutes the claim to protection. It is only the soldier who is himself seeking to kill who may be killed. 

The abandonment of all aggressiveness should put an end to aggression.”).

38 Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck).

39 Refer to § 5.9.3 (Persons Who Have Surrendered).

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

41 GWS-SEA art. 12 (“Members of the armed forces and other persons mentioned in the following Article, who are at 

sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being 

understood that the term ‘shipwreck’ means shipwreck from any cause and includes forced landings at sea by or 

from aircraft.”).

42 GWS-SEA COMMENTARY 89 (“Article 11 of the Brussels Convention of 1910 defines a shipwrecked person as 

being a person found at sea in danger of perishing. That definition, however, does not introduce the concept of 

need, and does not cover a shipwrecked person who manages to reach the coast or an island, or one who is not really 

in danger of losing his life. For our part, we prefer the following definition: ‘a person in distress at sea or stranded 

on the coast’.”).

43 GWS-SEA COMMENTARY 89 (“Another factor is involved here: the shipwrecked persons must be in need of 

assistance and care, and they must naturally refrain from any hostile act.”).

44 2007 NWP 1-14M ¶8.2.3.2 (“Shipwrecked persons do not include combatant personnel engaged in amphibious, 

underwater, or airborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance. 

In the latter case they may qualify as shipwrecked persons only if they cease all active combat activity and the 

enemy has an opportunity to recognize their condition of distress.”). Compare § 5.9.5.2 (Persons Deploying Into 

Combat by Parachute).
440

to the following categories:45

• members of the armed forces of a party to the conflict, as well as members of militias or 

volunteer corps forming part of such armed forces;

46

• members of other militias and members of other volunteer corps meeting certain 

conditions;47

• members of regular armed forces who profess allegiance to a Government or an authority 

not recognized by the Detaining Power;48

• persons who are authorized to accompany the armed forces;49

• members of the crews of the merchant marine and the crews of civil aircraft of the parties

to the conflict;50 and

• participants in a levée en masse.

51

These categories are the same categories of persons to whom the GPW affords POW 

status if they fall into the hands of the enemy during international armed conflict.52 Thus, the 

 45 GWS art. 13 (“The present Convention shall apply to the wounded and sick belonging to the following categories: 

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming 

part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of 

organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, 

even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance 

movements, fulfil the following conditions: a. That of being commanded by a person responsible for his 

subordinates; b. That of having a fixed distinctive sign recognizable at a distance; c. That of carrying arms openly; d. 

That of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed 

forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (4) Persons 

who accompany the armed forces without actually being members thereof, such as civil members of military aircraft 

crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of 

the armed forces, provided that they have received authorization from the armed forces which they accompany. (5) 

Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft 

of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in 

international law. (6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously 

take up arms to resist the invading forces, without having had time to form themselves into regular armed units, 

provided they carry arms openly and respect the laws and customs of war.”); GWS-SEA art. 13 (“The present 

Convention shall apply to the wounded, sick and shipwrecked at sea belonging to the following categories: 

[identical to those covered in GWS].”).

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

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

48 Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not 

Recognized by the Detaining Power).

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

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

51 Refer to § 4.7 (Levée en Masse).

52 Refer to § 9.3.2 (Persons Entitled to POW Status).
441

GWS and GWS-Sea recognize that such persons who fall into enemy hands during international 

armed conflict shall be POWs, and the provisions of international law concerning POWs (such as 

the GPW) shall also apply to them.53

The categories of persons entitled to POW status under the GPW and protection as 

wounded, sick, and shipwrecked under the GWS and GWS-Sea were drafted to be the same, but 

the GWS or GWS-Sea do not refer specifically to Article 4 of the GPW so that the GWS and 

GWS-Sea could operate as stand-alone legal instruments if a State ratified either the GWS or the 

GWS-Sea, but not the GPW.54

Civilians who are wounded and sick are protected under the GC.55

7.3.3 Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked. The 

wounded, sick, and shipwrecked must be respected and protected at all times. This means that 

they should not be knowingly attacked, fired upon, or unnecessarily interfered with.56

7.3.3.1 Incidental Harm Not Prohibited. The respect and protection due to the 

wounded, sick, and shipwrecked do not prohibit incidental damage or casualties due to their 

proximity to military objectives or to a justifiable mistake. Combatants who are wounded, sick, 

or shipwrecked on the battlefield are deemed to have accepted the risk of death or further injury 

due to their proximity to military operations.57 Although the presence of the wounded, sick, or 

shipwrecked on the battlefield does not serve to exempt military objectives from attack due to 

the risk that such personnel would be incidentally harmed, feasible precautions must be taken to 

 53 GWS art. 14 (“Subject to the provisions of Article 12, the wounded and sick of a belligerent who fall into enemy 

hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to 

them.”); GWS-SEA art. 16 (“Subject to the provisions of Article 12, the wounded, sick and shipwrecked of a 

belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning 

prisoners of war shall apply to them.”).

54 GWS COMMENTARY 144-45 (“When the Diplomatic Conference set out to define the categories of persons, to 

whom, on their being wounded or falling sick, the First Geneva Convention was to apply, it noted that the categories 

in question were precisely those which were entitled, on falling into the enemy’s hands, to be treated as prisoners of 

war. The Conference was thus logically led to refer to the contents of Article 4 of the Third Convention. There 

were two ways of doing this in practice. It was possible merely to refer to the Article in question, or alternatively to 

repeat its substance in the First Convention. The second of these solutions was the one adopted, in accordance with 

the general principle, to which the Conference adhered wherever possible, of endeavouring to make each of the four 

Geneva Conventions an independent diplomatic instrument. The course thus adopted also covered the possible case 

of a Power being a party to the First Convention without having ratified the Third.”). Refer to § 19.16.1 (Common 

Provisions in the 1949 Geneva Conventions).

55 Refer to § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers).

56 Cf. APPENDIX TO 1985 CJCS MEMO ON AP I 5-6 (“Articles 10, 12, and 15 [of AP I] then extend the provisions of 

the First and Second Geneva Conventions of 1949 to civilian sick, wounded, and shipwrecked and to civilian 

medical personnel and units and associated civilian religious personnel, all of whom would be ‘respected and 

protected’ by the parties to the conflict, the sick and wounded to receive required care ‘to the fullest extent 

practicable.’ As used in the Protocol [I to the 1949 Geneva Conventions], the term ‘respected and protected’ means 

that an activity should not be knowingly attacked, fired upon, or unnecessarily interfered with; it does not cover 

accidental damage or casualties due to proximity to military objectives or to a justifiable mistake in identifying the 

activity.”). Compare § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

57 Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
442

reduce the risk of harm to the wounded, sick, or shipwrecked.58

7.3.3.2 Search and Other Security Measures Not Prohibited. The wounded, sick, 

and shipwrecked are not immune from search or other necessary security measures by the 

enemy.59 Searches of the wounded, sick, and shipwrecked, and other security measures applied 

to them, should be consistent with those applicable to other POWs.60

7.3.3.3 Capture of Wounded, Sick, and Shipwrecked Not Prohibited. The respect 

and protection afforded the wounded, sick, and shipwrecked do not immunize them from 

detention.61 When they fall into enemy hands, they are POWs.62

It is not prohibited to capture the wounded and sick, even if they are in the care of 

military medical units or facilities, or civilian hospitals.63 However, upon taking custody, the 

Detaining Power is required to ensure that they continue to receive the necessary medical care.64

All warships of a belligerent party shall have the right to demand that the wounded, sick,

or shipwrecked on board military hospital ships, and hospital ships belonging to relief societies 

or to private individuals, as well as merchant vessels, yachts, and other craft shall be surrendered, 

whatever their nationality, provided that the wounded and sick are in a fit state to be moved and 

that the warship can provide adequate facilities for necessary medical treatment.65

In cases of capture at sea, the captor may decide, according to circumstances, whether it 

is expedient to hold the wounded, sick, or shipwrecked, or to convey them to a port in the 

captor’s own country, to a neutral port, or even to a port in enemy territory. In the last case, 

 58 Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

59 Refer to § 7.10.1.2 (Search Not Prohibited).

60 Refer to § 9.6 (Security Measures With Respect to POWs).

61 Refer to § 7.9 (Captured Medical and Religious Personnel).

62 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).

63 For example, J.C. Massop, Hospital Ships in the Second World War, 24 BRITISH YEAR BOOK OF INTERNATIONAL 

LAW 398, 405 (1947) (“In 1944 and 1945 the Germans decided to pass the hospital ships Tübingen and Gradisca 

through the Allied patrol lines in the Adriatic to embark sick and wounded in Salonica. In accordance with the 

requirements of the Convention the ships were allowed to pass on the outward voyage, but they were diverted to 

Allied ports on the homeward trip and some 4,000 prisoners were made: a high percentage were only slightly 

wounded and the great majority were considered likely to be fit for active service within twelve months. This action 

brought forth no protest from the German Government, who considered it justified by the terms of the 

Convention.”).

64 Refer to § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power of 

a Party to the Conflict).

65 GWS-SEA art. 14 (“All warships of a belligerent Party shall have the right to demand that the wounded, sick or 

shipwrecked on board military hospital ships, and hospital ships belonging to relief societies or to private 

individuals, as well as merchant vessels, yachts and other craft shall be surrendered, whatever their nationality, 

provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities 

for necessary medical treatment.”).
443

POWs thus returned to their home country may not serve for the duration of the war.66

7.3.3.4 Prohibition Against Use in Booby-Traps. Booby trapping the wounded or 

sick is expressly prohibited.67

7.4 SEARCH, COLLECTION, AND AFFIRMATIVE PROTECTION OF THE WOUNDED, SICK,

SHIPWRECKED, AND DEAD

At all times, and particularly after an engagement, parties to the conflict shall, without 

delay, take all possible measures to search for and collect the wounded and sick on land, to 

protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the 

dead and prevent their being despoiled.68

The GC provides for the obligation to search for, collect, protect, and care for, civilians 

who are wounded, sick, shipwrecked, and dead.69

7.4.1 GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection 

of the Wounded, Sick, Shipwrecked, and Dead. After each engagement, parties to the conflict 

shall, without delay, take all possible measures to search for and collect the wounded, sick, and 

shipwrecked at sea, to protect them against pillage and ill-treatment, to ensure their adequate 

care, and to search for the dead and prevent their being despoiled.70

The obligation in the GWS-Sea to search for, and collect, certain persons is written 

differently than the comparable obligation in the GWS. Instead of a general obligation to take 

measures “at all times,” in Article 15 of the GWS, in Article 18 of the GWS-Sea, the obligation 

to search for and collect the wounded, sick, and shipwrecked applies only “after each 

engagement.”

7.4.2 Affirmative Measures to Protect Against Pillage and Ill-Treatment. If practicable, 

affirmative measures (including, in some cases, the use of force) must be taken to protect the 

wounded, sick, and shipwrecked, from pillage or ill-treatment by any person, whether military or 

 66 GWS-SEA art. 16 (“The captor may decide, according to circumstances, whether it is expedient to hold them, or to 

convey them to a port in the captor’s own country, to a neutral port or even to a port in enemy territory. In the last 

case, prisoners of war thus returned to their home country may not serve for the duration of the war.”).

67 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

68 GWS art. 15 (“At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take 

all possible measures to search for and collect the wounded and sick, to protect them against pillage and illtreatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”).

69 Refer to § 7.16.1 (Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded, Killed, 

Shipwrecked, or Exposed to Grave Danger).

70 GWS-SEA art. 18 (“After each engagement, Parties to the conflict shall, without delay, take all possible measures 

to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to 

ensure their adequate care, and to search for the dead and prevent their being despoiled.”).
444

civilian, seeking to harm them.71

7.4.3 Range of Measures to Search for, Collect, and Protect the Wounded, Sick, and 

Shipwrecked. A range of measures may be taken to fulfill the obligation to search for, collect, 

and protect the wounded, sick, and shipwrecked. Military forces may directly engage in these 

activities.72 

In addition to searching for, collecting, and protecting the wounded, sick, and

shipwrecked directly, commanders may take other measures to fulfill this obligation. For 

example, commanders may request the help of civilian volunteers.73 As another example, if a 

warship is unable to collect the shipwrecked after an engagement, it might be able to alert a 

hospital ship in the vicinity or provide the shipwrecked with a lifeboat.74

7.4.3.1 Armistices and Local Arrangements to Permit the Removal, Exchange, or 

Transport of the Wounded. Whenever circumstances permit, an armistice or a suspension of fire 

shall be arranged, or local arrangements made, to permit the removal, exchange, and transport of 

the wounded left on the battlefield.75 Such arrangements may take the form of or include a 

protected or neutral zone.76

Likewise, local arrangements may be concluded between parties to the conflict for the 

removal or exchange of wounded and sick by land or sea from a besieged or encircled area, or

for the passage of medical and religious personnel and equipment on their way to that area.77 

For example, parties to a conflict may agree to a temporary cease-fire to permit evacuation of the 

 71 GWS COMMENTARY 152 (“In other words, the wounded and the dead must be guarded and, if necessary, defended 

against all parties, whether military or civilian, who may seek to lay hands on them. Combatants, like medical 

personnel, are called upon to prevent this, going, if necessary, to the length of using their arms for the purpose.”).

72 For example, George W. Bush, Remarks to the Community at Camp Lejeune, North Carolina, Apr. 3, 2003, 2003-

I PUBLIC PAPERS OF THE PRESIDENTS 404, 406 (“American forces and our allies are treating innocent civilians with 

kindness and showing proper respect to soldiers who surrender. Many Americans have seen the picture of Marine 

Lance Corporal Marcco Ware carrying a wounded Iraqi soldier on his shoulders to safety for medical treatment.”).

73 Refer to § 7.4.5.1 (Requests for Civilian Volunteers to Collect and Care for the Wounded, Sick, and 

Shipwrecked).

74 GWS-SEA COMMENTARY 131 (“The ‘possible measures’ which may be taken by the belligerents to collect the 

shipwrecked are, on the other hand, many and varied and in nearly all cases they should enable the purpose of the 

present paragraph to be achieved. Thus, a warship which was unable to collect the victims of an engagement 

should, for instance, alert a hospital ship if there is one in the vicinity, or even a ship of any kind better equipped 

than itself; otherwise, it should resort to the possibility provided in Article 21, and appeal to neutral vessels. It can 

also alert the nearest coastal authorities, or request assistance from the air forces. Generally speaking, if a warship is 

forced to leave shipwrecked persons to their fate, it will endeavour to provide them with the means to enable them to 

await rescue or reach the coast: life-boats, food, water, a compass, charts, etc.”).

75 GWS art. 15 (“Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local 

arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield.”).

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

77 Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular 

Personnel, the Wounded and Sick, and Medical Personnel).
445

wounded from the fighting area.78

7.4.4 Practical Limitations on the Obligation to Search for, Collect, and Take Measures to 

Protect the Wounded, Sick, and Shipwrecked. The obligations to search for, collect, and take 

affirmative steps to protect the wounded, sick, and shipwrecked are subject to practical 

limitations.

Military commanders are to judge what is possible, and to what extent they can commit 

their personnel to these duties.79 In some cases, commanders might designate specific units or 

personnel to engage in such missions.

7.4.4.1 Risk of Harm. For example, personnel performing rescue and recovery 

missions need not place their lives at undue risk in an effort to search for, collect, or protect the 

wounded, sick, shipwrecked, or dead (e.g., recovery of a body from a minefield, or entry into a 

disabled enemy armored vehicle that might contain unexploded ordnance or other hazards). 

Similarly, a commander of a naval ship need not increase the risk to his or her vessel from 

threats (e.g., by slowing his or her transit, or by placing his or her ship dead in the water) in order 

to recover shipwrecked enemy military personnel from a sunken vessel or crashed aircraft.80

7.4.4.2 Military Necessity. Similarly, the requirements of ongoing military 

operations may render rescue efforts impractical. For example, during a fast-tempo operation 

(offensive or defensive), it might not be possible to devote resources to the search and collection 

of the wounded, sick, and shipwrecked. In other cases, the rescue of enemy personnel may 

exceed the abilities of the force and its medical personnel. For example, a small patrol operating 

behind enemy lines or a submarine may not have the capability to receive and care for large 

numbers of injured personnel.

81

 78 For example, MARTIN MIDDLEBROOK, ARNHEM 1944: THE AIRBORNE BATTLE, 17-26 SEPTEMBER 383 (1994) 

(“After consulting Major-General Urquhart, Colonel Warrack decided to ask the Germans if they would allow the 

wounded to be evacuated from the fighting area. He was driven with the Dutch officer, Commander Woters, who 

would act as interpreter, and eventually met General Bittrich, who agreed to a truce and an evacuation. ... The 

evacuation commenced that afternoon, but only in the Main Dressing Stations. ... All went well, much credit being 

given to the Germans for their humane treatment of the wounded.”).

79 GWS COMMENTARY 151 (“But there are times when military operations will make the obligation to search for the 

fallen impracticable. There will be cases which exceed the limits of what the medical personnel can be expected to 

do, however great their courage and devotion. It was not possible, therefore, to make the obligation absolute. It was 

accordingly provided that ‘Parties to the conflict shall, without delay, take all possible measures...’ The obligation 

to act without delay is strict; but the action to be taken is limited to what is possible, and it is left to the military 

command to judge what is possible, and to decide to what extent it can commit its medical personnel.”) (ellipsis in 

original).

80 For example, W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND 

LIMITED WARS 136 (1968) (“It should be mentioned also that there were apparently numerous instances when it was 

not feasible for surface warships to make rescue attempts even though they had adequate passenger facilities. The 

British heavy cruiser Devonshire, operating in the South Atlantic, sank the German raider Atlantis on November 22, 

1941 and the German supply ship Python on November 30, 1941. In neither case was rescue attempted since it was 

thought that U-boats might be in the vicinity.”).

81 See also GWS-SEA COMMENTARY 131 (“Of course, one cannot always require certain fighting ships, such as fast 

torpedo-boats and submarines, to collect in all circumstances the crews of ships which they have sunk, for they will 
446

7.4.5 Collection and Care of the Wounded, Sick, and Shipwrecked by Civilians. 

7.4.5.1 Requests for Civilian Volunteers to Collect and Care for the Wounded, 

Sick, and Shipwrecked. The military authorities may appeal to the charity of the inhabitants 

voluntarily to collect and care for, under their direction, the wounded, sick, and shipwrecked, 

granting persons who have responded to this appeal the necessary protection and facilities.82 

Should the adverse party take or retake control of the area, that party shall likewise grant these 

persons the same protection and the same facilities.83

7.4.5.2 Spontaneous Collection and Care for the Wounded, Sick, and Shipwrecked 

by Inhabitants and Relief Societies. The military authorities shall permit the inhabitants and 

relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded 

or sick of whatever nationality.

84 The civilian population shall respect these wounded and sick, 

and in particular abstain from offering them violence.85

7.4.5.3 Prohibition on Molestation or Conviction for Nursing the Wounded or 

Sick. No one shall ever be molested or convicted for having nursed the wounded or sick.86 For 

example, persons should not be prosecuted for offenses of aiding the enemy because they tended 

to wounded members of enemy military forces.

7.4.6 Collection and Care of the Wounded, Sick, and Shipwrecked by Neutral Vessels. 

The parties to the conflict may appeal to the charity of commanders of neutral merchant vessels, 

yachts, or other craft, to take on board and care for wounded, sick, or shipwrecked persons, and 

to collect the dead.87

Vessels of any kind responding to this appeal, and those having of their own accord 

collected wounded, sick, or shipwrecked persons, shall enjoy special protection and facilities to 

 

often have inadequate equipment and insufficient accommodation. Submarines stay at sea for a long time and 

sometimes they neither wish nor are able to put in at a port where they could land the persons whom they have 

collected. Generally speaking, one cannot lay down an absolute rule that the commander of a warship must engage 

in rescue operations if, by doing so, he would expose his vessel to attack.”). Refer to § 13.7.2 (Different Application 

of Law of War Rules in the Context of Submarine Warfare).

82 GWS art. 18 (“The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care 

for, under their direction, the wounded and sick, granting persons who have responded to this appeal the necessary 

protection and facilities.”).

83 GWS art. 18 (“Should the adverse Party take or retake control of the area, he shall likewise grant these persons the 

same protection and the same facilities.”).

84 GWS art. 18 (“The military authorities shall permit the inhabitants and relief societies, even in invaded or 

occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.”).

85 GWS art. 18 (“The civilian population shall respect these wounded and sick, and in particular abstain from 

offering them violence.”).

86 GWS art. 18 (“No one shall ever be molested or convicted for having nursed the wounded or sick.”).

87 GWS-SEA art. 21 (“The Parties to the conflict may appeal to the charity of commanders of neutral merchant 

vessels, yachts or other craft, to take on board and care for wounded, sick or shipwrecked persons, and to collect the 

dead.”).
447

carry out such assistance.88

They may, in no case, be captured on account of any such transport; but, in the absence of 

any promise to the contrary, they shall remain liable to capture for any violations of neutrality 

they may have committed.89

7.5 HUMANE TREATMENT AND CARE OF ENEMY MILITARY WOUNDED, SICK, AND SHIPWRECKED

IN THE POWER OF A PARTY TO THE CONFLICT

The wounded, sick, and shipwrecked who are protected by the GWS and GWS-Sea 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.90 Any attempts upon their lives, or violence to their persons, shall be

strictly prohibited; in particular, they shall not be murdered or exterminated or subjected to 

torture or to biological experiments; they shall not willfully be left without medical assistance 

and care, nor shall conditions exposing them to contagion or infection be created.91

7.5.1 Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse 

Distinction. The wounded, sick, and shipwrecked who are protected by the GWS or GWS-Sea 

who are in the power of a party to the conflict are also POWs. Thus, their humane treatment is 

required by the GPW as well.

92

For example, the prohibition on subjecting the wounded, sick, or shipwrecked to 

biological experiments is also reflected in the GPW.93 Similarly, the wounded, sick, and 

shipwrecked who are women shall be treated with all consideration due to their sex.94

7.5.2 Medical Care of the Wounded and Sick. Below are general rules for the medical 

care of the wounded and sick, including both those on the battlefield and those who are POWs.

 88 GWS-SEA art. 21 (“Vessels of any kind responding to this appeal, and those having of their own accord collected 

wounded, sick or shipwrecked persons, shall enjoy special protection and facilities to carry out such assistance.”).

89 GWS-SEA art. 21 (“They may, in no case, be captured on account of any such transport; but, in the absence of any 

promise to the contrary, they shall remain liable to capture for any violations of neutrality they may have 

committed.”).

90 GWS art. 12 (“They shall be treated humanely and cared for by the Party to the conflict in whose power they may 

be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar 

criteria.”); GWS-SEA art. 12 (“Such persons shall be treated humanely and cared for by the Parties to the conflict in 

whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political 

opinions, or any other similar criteria.”).

91 GWS art. 12 (“Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, 

they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully 

be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be 

created.”); GWS-SEA art. 12 (same).

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

93 Refer to § 9.5.2.4 (No Physical Mutilation or Medical, Scientific, or Biological Experiments).

94 GWS art. 12 (“Women shall be treated with all consideration due to their sex.”); GWS-SEA art. 12 (same). Refer 

to § 9.5.6 (Due Regard for Women POWs).
448

POWs shall be provided necessary medical attention during evacuation, although they 

may be temporarily kept back in a danger zone if they would face greater risks by being 

evacuated than by remaining where they are.95 Additional rules provide for the medical attention 

and care for POWs who have been interned in POW camps.96

7.5.2.1 Prohibitions Against Willful Medical Neglect or Deliberate 

Endangerment. The wounded, sick, and shipwrecked shall not willfully be left without medical 

assistance and care. In addition, conditions exposing them to contagion or infection shall not be 

willfully created.

7.5.2.2 Affirmative Obligation to Provide Adequate Care. In addition to the

prohibitions against willful neglect or deliberate endangerment, the parties to a conflict shall take 

all possible measures to ensure the adequate care of the wounded, sick, and shipwrecked.97 The 

obligation to care for enemy combatants who are wounded and sick is a longstanding law of war 

obligation.98

The obligation to provide medical care incorporates practical considerations; whether 

resources may be committed to medical care may depend on military necessity, such as the 

requirements of the mission or the immediate tactical situation.

99

7.5.2.3 Priority of Treatment Based on Medical Urgency. Only urgent medical 

reasons will authorize priority in the order of treatment to be administered.100 

For example, in addressing an influx of wounded that include both friends and enemies, 

doctors should attend to those patients for whom delay might be fatal or at any rate prejudicial, 

proceeding afterwards to those whose condition is not such as to necessitate immediate 

attention.101

 95 Refer to § 9.9.2 (Conditions of Evacuation); § 9.9.1 (Delay in Evacuation for Medical Reasons).

96 Refer to § 9.14 (Medical Attention for Interned POWs).

97 Refer to § 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead).

98 See, e.g., LIEBER CODE art. 79 (“Every captured wounded enemy shall be medically treated, according to the 

ability of the medical staff.”); Convention for the Amelioration of the Wounded in Armies in the Field, art. 6, Aug. 

22, 1864, 22 STAT. 940, 944 (“Wounded or sick soldiers shall be entertained and taken care of, to whatever nation 

they may belong.”).

99 For example, OFFICE OF THE SURGEON GENERAL OF THE ARMY, EMERGENCY WAR SURGERY 30 (2014) (“The 

decision to withhold care from a casualty who in another less overwhelming situation might be salvaged is difficult 

for any physician, nurse, or medic. Decisions of this nature are unusual, even in mass casualty situations. 

Nonetheless, the overarching goal of providing the greatest good to the greatest number must guide these difficult 

decisions. Commitment of resources should be decided first based on the mission and immediate tactical situation 

and then by medical necessity, irrespective of a casualty’s national or combatant status.”).

100 GWS art. 12 (“Only urgent medical reasons will authorize priority in the order of treatment to be administered.”); 

GWS-SEA art. 12 (same).

101 GWS COMMENTARY 140 (“Let us suppose that the Medical Service in some place is overwhelmed by an influx of 

wounded, both friends and enemies. The doctors, in such a case, will attend first to those patients for whom delay 

might be fatal or at any rate prejudicial, proceeding afterwards to those whose condition is not such as to necessitate 

immediate attention.”).
449

7.5.2.4 Compulsory Medical Treatment. The wounded, sick, and shipwrecked, 

and other POWs, may be ordered to receive medical treatment or care that is warranted by their 

medical condition.

Because POWs are subject to the laws, regulations, and orders in force in the armed 

forces of the Detaining Power, POWs may be ordered to receive medical treatment just as 

Detaining Power military personnel may be ordered to do so.

102 However, the wounded, sick, 

and shipwrecked, and other POWs, may not be subjected to medical or biological experiments, 

even if Detaining Power military personnel could be ordered to be subjected to such 

procedures.103

The Detaining Power’s authority to order POWs to receive medical treatment also derives 

from the Detaining Power’s duty to ensure the well-being of POWs.104 For example, the 

Detaining Power’s duty to take all sanitary measures necessary to prevent epidemics in the POW 

camp may require the Detaining Power to order POWs to receive certain measures, such as 

vaccinations.

105

AP I, Article 11, paragraph 5 provides for a “right to refuse any surgical operation.”106 

However, this rule could operate in an inhumane manner in some circumstances, and the United 

States has not accepted it.107

7.5.2.5 Medical Attention Free of Charge. The Power detaining POWs shall be 

bound to provide free of charge for the medical attention required by POWs’ state of health.108

7.5.3 Abandonment of the Wounded or Sick on the Battlefield. In an extreme case, 

military forces in an international armed conflict may be compelled to abandon wounded or sick 

 102 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the 

Detaining Power).

103 Refer to § 9.5.2.4 (No Physical Mutilation or Medical, Scientific, or Biological Experiments).

104 For example, 1958 UK MANUAL ¶154 note 3 (“Again, if prisoners in British military custody resort to a hunger 

strike, it would seem that they may under medical direction be forcibly fed if their lives are in danger. This is 

permissible by English law and may in certain cases be a duty. If British military prisoners are allowed to die from 

the effects of a hunger strike, the camp commandant and medical officer are liable to be prosecuted for 

manslaughter, Leigh v. Gladstone and Others, 26 T.L.R. 139.”).

105 Refer to § 9.11.5.1 (Necessary Sanitary Measures).

106 AP I art. 11(5) (“The persons described in paragraph 1 have the right to refuse any surgical operation. In case of 

refusal, medical personnel shall endeavour to obtain a written statement to that effect, signed or acknowledged by 

the patient.”).

107 APPENDIX TO 1985 CJCS MEMO ON AP I 8 (“The provision [in AP I art. 11] specifying an absolute right to refuse 

any surgery could, however, operate in an inhumane manner in some circumstances. A detainee might, for example, 

refuse surgery necessary to save his own life in order to make a political point or because of ignorance or mental 

incompetence.”).

108 GPW art. 15 (“The Power detaining prisoners of war shall be bound to provide free of charge for their 

maintenance and for the medical attention required by their state of health.”).
450

to the enemy.109 The party to the conflict that is compelled to abandon wounded or sick to the 

enemy shall, as far as military considerations permit, leave with them a part of its medical 

personnel and material to assist in their care.110 

Unlike the obligations to provide humane treatment for the wounded and sick who are in 

custody, the obligation to provide medical personnel and material for the care of abandoned 

wounded or sick is a strong recommendation, rather than an absolute requirement.111

The party that encounters and captures the wounded and sick who have been abandoned 

by another party to the conflict is not relieved of its duties because the party that has abandoned 

wounded and sick personnel has not left medical personnel and material to assist in the care of 

those wounded and sick.

112 On the other hand, the party that encounters and captures the 

wounded and sick also is not relieved of its duties when the party that has abandoned wounded 

and sick personnel has left medical personnel and material to assist in the care of those wounded 

and sick.113

In addition to providing for the medical care of wounded and sick abandoned to the 

enemy, other feasible precautions should be taken to ensure their safety.114

7.6 ACCOUNTABILITY INFORMATION FROM THE ENEMY MILITARY WOUNDED, SICK,

SHIPWRECKED, AND DEAD

The GWS and GWS-Sea impose certain obligations to gather and report information in 

order to gain as full an accounting as possible for captured enemy personnel and enemy dead 

recovered from the battlefield. These obligations complement similar obligations in the GPW to 

 109 For example, STEPHEN BADSEY, ARNHEM 1944: OPERATION ‘MARKET GARDEN’ 85 (1993) (“At Arnhem itself, 

10,300 men of 1st British Airborne Division and 1st Polish Parachute Brigade landed from air. Some 2,587 men 

escaped across the Rhine in Operation ‘Berlin’ (1,741 of 1st British Airborne, 422 of the Gilder Pilot Regiment, 160 

Poles and 75 from the Dorsetshire Regiment), and 240 more returned later with the aid of the PAN. About 1,600 

wounded were left behind in the Oosterbeek pocket, together with 204 medical officers and chaplains who 

volunteered to stay. The Germans claimed 6,450 prisoners taken, wounded or not, and 1st British Airborne 

therefore lost about 1,300 killed.”).

110 GWS art. 12 (“The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far

as military considerations permit, leave with them a part of its medical personnel and material to assist in their 

care.”).

111 GWS COMMENTARY 142 (“If this provision [paragraph 5 of Article 12 of the GWS] cannot, therefore, be 

considered imperative, it represents none the less a clear moral obligation which the responsible authority cannot 

evade except in cases of urgent necessity. ... Paragraph 2 [of Article 12 of the GWS] imposes an absolute obligation 

to which there are no exceptions; paragraph 5 is a recommendation, but an urgent and forcible one.”).

112 GWS COMMENTARY 142 (“It should, moreover, be noted that this provision is in no way bound up with the 

obligation, imposed upon the Parties to the conflict by paragraph 2, to care for the wounded. A belligerent can never 

refuse to care for enemy wounded he has picked up, on the pretext that his adversary has abandoned them without 

medical personnel and equipment. On the contrary, he is bound to give to them the same care as he gives the 

wounded of his own army.”).

113 Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

114 Compare § 9.9.3.2 (Feasible Precautions to Ensure Safety).
451

maintain accountability for POWs.115

7.6.1 Recording Identifying Information. Parties to the conflict shall record as soon as 

possible, in respect of each wounded, sick, shipwrecked, or dead person of the adverse party

falling into their hands, any particulars that may assist in his or her identification.116 These 

records should, if possible, include:117 

• designation of the Power on which the person depends;

• surname (i.e., last name) and first name or names (i.e., first and middle names); 

• army, regimental, personal, or serial number; 

• date of birth; 

• any other particulars shown on the person’s identity card or disc;118

• date and place of capture or death; and 

• particulars concerning wounds or illness, or cause of death.

The GPW requires the collection of a similar set of information for all POWs.119

In order to implement these obligations, as part of their initial processing, the recovering 

or capturing unit should endeavor to obtain this information from each living POW.

120 POWs 

who, owing to their physical or mental condition, are unable to state their identity, shall be 

handed over to the medical service.121 

Other sources of information should be used to establish the identity of the wounded, 

sick, shipwrecked, and dead. For example, items associated with the person (e.g., personal 

effects, a life jacket bearing the name of the ship on which that person served) should be 

examined, and other members of the person’s unit should be questioned. 

 115 Refer to § 9.31 (National Accounting of the Detention of POWs).

116 GWS art. 16 (“Parties to the conflict shall record as soon as possible, in respect of each wounded, sick or dead 

person of the adverse Party falling into their hands, any particulars which may assist in his identification.”); GWSSEA art. 19 (“The Parties to the conflict shall record as soon as possible, in respect of each shipwrecked, wounded, 

sick or dead person of the adverse Party falling into their hands, any particulars which may assist in his 

identification.”).

117 GWS art. 16 (“These records should if possible include: (a) designation of the Power on which he depends; (b) 

army, regimental, personal or serial number; (c) surname; (d) first name or names; (e) date of birth; (f) any other 

particulars shown on his identity card or disc; (g) date and place of capture or death; (h) particulars concerning 

wounds or illness, or cause of death.”); GWS-SEA art. 19 (same).

118 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

119 Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

120 Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

121 Refer to § 9.8.4.1 (POWs Unable to State Their Identity).
452

An examination of a deceased person’s body may also facilitate identification by 

gathering information that can be used to identify the person later (e.g., measurements and 

description of the body and its physical features, examination of the teeth, fingerprints, 

photograph, DNA samples).122 This examination should be conducted before burial or 

cremation.123

7.6.2 Forwarding Identifying Information. As soon as possible, the above mentioned 

identifying information shall be forwarded to the National POW Information Bureau described in 

Article 122 of the GPW, which shall transmit this information to the Power on which these 

persons depend through the intermediary of the Protecting Power and of the Central POW 

Agency.124

7.6.2.1 Military Necessity to Delay Reporting. As the phrase “as soon as 

possible” reflects, reporting may be delayed due to practical considerations, including security 

risks.125

7.6.3 U.S. Practice in Reporting Through the ICRC Central Tracing Agency. In U.S. 

practice, information has been provided to the Theater Detainee Reporting Center, which in turn 

processes it and reports it to the National Detainee Reporting Center, which has then transmitted 

it to the ICRC Central Tracing Agency, acting as the Central POW Information Agency.

126

7.7 TREATMENT AND HANDLING OF ENEMY MILITARY DEAD

The GWS and GWS-Sea address the treatment and handling of enemy dead who have 

been collected from the battlefield.127 However, the provisions of the GWS and GWS-Sea 

relating to the treatment and handling of enemy dead may also be interpreted to include wounded 

and sick combatants who have died shortly after having been collected.

128 The GPW provides 

 122 See GWS COMMENTARY 177 (“In the absence of papers recourse must be had to other methods which will make 

it possible for the adverse Party itself to establish his identity, e.g. measurements and description of the body and its 

physical features, examination of the teeth, fingerprints, photograph, etc.”).

123 Refer to § 7.7.4.1 (Examination of Bodies Before Burial or Cremation).

124 GWS art. 16 (“As soon as possible the above mentioned information shall be forwarded to the Information 

Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August 

12, 1949, which shall transmit this information to the Power on which these persons depend through the 

intermediary of the Protecting Power and of the Central Prisoners of War Agency.”); GWS-SEA art. 19 (same).

125 See, e.g., GWS-SEA COMMENTARY 138 (“A warship always has good reasons for communicating by radio as 

little as possible, and one cannot therefore expect it to transmit by that means sundry information about the 

shipwrecked or sick whom it may have picked up. It will delay doing so until it has arrived at a port in its home 

country, and the authorities on land will then have to notify the enemy.”).

126 Refer to § 9.31.4 (U.S. Practice in Reporting to the ICRC Central Tracing Agency).

127 GWS COMMENTARY 179 (noting that “the First Convention was essentially concerned with the dead picked up 

on the battlefield”).

128 GWS COMMENTARY 176 (“In the first place the present Article (Article 17) is essentially concerned with the 

dead picked up by the enemy on the battlefield, that is to say, with the mortal remains of combatants who have never

for one moment been prisoners of war. Again, combatants who have died shortly after having been picked up 

wounded or sick, will have succumbed to the wounds or sickness which brought them under the protection of the 
453

other rules relating to POWs who have died while in detention.

129 Thus, certain enemy dead 

may be addressed by both the GPW and GWS.

Although the provisions of the GWS and GWS-Sea are not applicable to civilian dead, in

many cases it may be appropriate and practical to apply those rules by analogy. The GC 

provides rules relating to protected persons who have died while interned.

130

7.7.1 Treatment of Enemy Military Dead. Subject to the tactical situation and sanitation 

requirements, the handling and burial of enemy military dead must be discharged with the same 

respect as would be afforded to, or expected for, friendly military dead. The respectful treatment 

of the dead is one of the oldest rules in the law of war.

131 

7.7.1.1 No Disrespectful or Degrading Treatment of the Dead. Enemy military 

dead must be protected from disrespectful or degrading acts.

132 For example, mutilation or 

cannibalism of dead bodies is prohibited.

133 In addition, posing with bodies for photographs or 

 First Convention, and it is therefore only natural that they should remain subject to the provisions of that 

Convention.”).

129 Refer to § 9.34 (Death of POWs).

130 Refer to § 10.34 (Death of Internees).

131 See, e.g, GROTIUS, LAW OF WAR & PEACE 455-56 (2.19.3.1) (“Consequently, all agree that even public enemies 

are entitled to burial. Appian calls this ‘a common right of wars’; Philo, ‘the common interchange in war’. Says 

Tacitus: ‘Not even enemies begrudge burial.’ Dio Chrysostom says that this right is observed even ‘among 

enemies’; he adds, ‘even though hatred has reached the utmost limit.’ In treating of the same matter, Lucan says that 

the laws and customs of humanity must be observed in the case of an enemy. The same Sopater, who was cited 

above, asks: ‘What war has deprived the human race of this last honour? What enmity has extended the memory of 

evil deeds to such a point that it would dare to violate this law?’ And Dio Chrysostom, whom I have just cited, in 

his oration On the Law, says: ‘For this reason no one judges enemies after death, and wrath and insult are not 

extended to their bodies.’”).

132 For example, Trial of Max Schmid, Outline of the Proceedings, XIII U.N. LAW REPORTS 151 (U.S. General 

Military Government Court, Dachau, Germany, May 19, 1947) (“The third charge against the accused was that he 

did ‘wilfully, deliberately and wrongfully encourage, aid, abet and participate in the maltreatment of a dead 

unknown member of the United States Army.’ ... The evidence showed that shortly before the time of the allied 

invasion of France the body of a dead U.S. airman was brought to his dispensary by a detail whose duty it was to 

collect dead bodies, and to remove them from the battlefield. The accused severed the head from the body, boiled it 

and removed the skin and flesh and bleached the skull which he kept on his desk for several months. The 

prosecution alleged that he eventually sent it to his wife in Germany as a souvenir.”).

133 For example, H. Wayne Elliott, The Third Priority: The Battlefield Dead, ARMY LAWYER 3, 14 (Jul. 1996) 

(“Reports of the mutilation of bodies, particularly cutting the ears off dead enemy soldiers, also circulated. One 

such incident was filmed and shown on the CBS Evening News in 1967. In another incident which occurred in 

1967, an Army sergeant was court-martialed for ‘conduct to the prejudice of good order and discipline,’ a violation 

of Article 134 of the Uniform Code of Military Justice (UCMJ). The sergeant was convicted of decapitating two 

enemy corpses and posing for a photograph with the heads. The disciplinary or judicial action taken in these 

incidents is proof that such conduct was not sanctioned by the command in Vietnam. In October 1967, General 

Westmoreland, United States Commander in Vietnam, described the practice of cutting ears and fingers off the dead 

as ‘subhuman’ and ‘contrary to all policy and below the minimum standards of human decency.’”); Trial of Max 

Schmid, Notes on the Case: Mutilation of Dead Bodies and Refusal of Honourable Burial, XIII U.N. LAW REPORTS

151, 152 (U.S. General Military Government Court, Dachau, Germany, May 19, 1947) (“Another United States 

Military Commission at the Mariana Islands (2nd-15th August, 1946) tried and convicted Tachibana Yochio, a 

Lieutenant-General in the Japanese Army and 13 others, of murdering 8 prisoners of war. Some of the accused were 

also charged with ‘preventing an honourable burial due to the consumption of parts of the bodies of prisoners of war 
454

leaving a “calling card” on a body are also inconsistent with the respectful treatment of the dead. 

7.7.1.2 Prohibition Against Booby-Trapping Dead Bodies. The dead may not be 

booby-trapped.134

7.7.2 Handling of Personal Effects Belonging to Enemy Dead. During international 

armed conflict, personal property recovered from enemy dead becomes the property of the 

recovering State for the purpose of returning it to the next-of-kin of the deceased.

7.7.2.1 Measures to Prevent the Dead From Being Despoiled. At all times, and 

particularly after an engagement, parties to the conflict shall, without delay, take all possible 

measures to prevent the dead from being despoiled.135 This means that the personal effects of 

deceased persons may not be pillaged or otherwise taken without proper authorization.136

Individuals are not entitled to retain the personal effects of a deceased person as “booty”;

the individual military member or person accompanying the armed forces who captures or finds 

enemy property acquires no title or claim.137

7.7.2.2 Forwarding Valuable Articles Found on the Dead. Parties to the conflict 

shall collect and forward, through the National POW Information Bureau, one-half of the double 

identity disc, last wills or other documents of importance to the next of kin, money, and in 

general all articles of an intrinsic or sentimental value, which are found on the dead.138 

If there is only a single identity disc, it should remain with the body if the body is to be 

buried on land, so that the body may subsequently be identified as needed.

139 If the body is to be 

buried at sea, then the single identity disc itself should be collected and forwarded through the 

 by the accused during a special meal in the officers’ mess.’ They were found guilty of these charges; sentences 

ranging from death to imprisonment for 5 years were imposed. (3) An Australian Military Court at Wewak (30th 

November, 1945) sentenced Tazaki Takehiko, a First Lieutenant in the Japanese Army to death for ‘mutilating the 

dead body of a prisoner of war’ and for ‘cannibalism.’ The sentence was commuted to 5 years’ imprisonment by the 

confirming officer.”).

134 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

135 GWS art. 15 (“At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take 

all possible measures to search for and collect the wounded and sick, to protect them against pillage and illtreatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”).

136 GWS COMMENTARY 152 footnote 2 (“Although this Article speaks only of measures to prevent the ‘despoiling’ 

(French, dépouillement) of the dead, it incontestably involves a prohibition of ‘pillage’ (French, pillage) of the 

dead.”).

137 Refer to § 5.17.3.2 (Ownership of Captured or Found Property on the Battlefield).

138 GWS art. 16 (“They shall likewise collect and forward through the same bureau one half of a double identity 

disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic 

or sentimental value, which are found on the dead.”); GWS-SEA art. 19 (“They shall likewise collect and forward 

through the same bureau one half of the double identity disc, or the identity disc itself if it is a single disc, last wills 

or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental 

value, which are found on the dead.”).

139 Refer to § 7.7.4.2 (Burial on Land).
455

National POW Information Bureau.

140

These articles, together with unidentified articles, shall be sent in sealed packets, 

accompanied by statements giving all particulars necessary for the identification of the deceased 

owners, as well as by a complete list of the contents of the parcel.141 

The GPW also requires the forwarding of wills and all personal valuables left by POWs, 

including those who have died.142

7.7.3 Preparation and Forwarding of Death Certificates and Lists of the Dead. Parties to 

the conflict shall prepare and forward to each other, through the National POW Information 

Bureau, certificates of death or duly authenticated lists of the dead.143 Where applicable, these 

certificates or lists shall state the circumstances and reasons for cremation.144

The GPW provides further requirements for death certificates and lists of persons who 

died as POWs.145

7.7.4 Handling of Enemy Battlefield Dead – Burial and Cremation. 

7.7.4.1 Examination of Bodies Before Burial or Cremation. Parties to the conflict 

shall ensure that burial (whether on land or at sea) or cremation of the dead, carried out 

individually as far as circumstances permit, is preceded by a careful examination, if possible by a 

medical examination, of the bodies, with a view to confirming death, establishing identity, and 

enabling a report to be made.146

An examination helps ensure that persons who are still living are not mistakenly buried or 

cremated. An examination also helps ensure that accountability information can be gathered and 

 140 See GWS-SEA COMMENTARY 144 (“Provision is still made for the possibility of military personnel being issued 

with single discs only, inscribed with the bare particulars. In the case of burial on land, such a disc must remain 

with the body, so that the latter may be identifiable at any time. In the case of burial at sea, it must be removed and 

sent to the deceased’s home country, for a body buried at sea is usually wrapped in a weighted sailcloth bag and we 

know of no instance of one having been washed ashore; there is therefore no question of subsequent 

identification.”).

141 GWS art. 16 (“These articles, together with unidentified articles, shall be sent in sealed packets, accompanied by 

statements giving all particulars necessary for the identification of the deceased owners, as well as by a complete list 

of the contents of the parcel.”); GWS-SEA art. 19 (same).

142 Refer to § 9.31.2.3 (Collection of Personal Valuables Left by POWs).

143 GWS art. 16 (“Parties to the conflict shall prepare and forward to each other through the same bureau, certificates 

of death or duly authenticated lists of the dead.”); GWS-SEA art. 19 (same).

144 Refer to § 7.7.4.4 (Cremation).

145 Refer to § 9.34.1 (Transmittal of Wills); § 9.34.2 (Death Certificates).

146 GWS art. 17 (“Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as 

far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the 

bodies, with a view to confirming death, establishing identity and enabling a report to be made.”); GWS-SEA art. 20 

(“Parties to the conflict shall ensure that burial at sea of the dead, carried out individually as far as circumstances 

permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to 

confirming death, establishing identity and enabling a report to be made.”).
456

forwarded in accordance with other requirements.147

7.7.4.2 Burial on Land. Parties to the conflict shall further ensure that the dead 

are honorably interred, if possible according to the rites of the religion to which they belonged, 

and that their graves are respected, grouped if possible according to the nationality of the 

deceased, properly maintained, and marked so that they may always be found.148 The use of 

collective graves should be avoided.149

One-half of the double identity disc, or the identity disc itself if it is a single disc, should 

remain on the body.150

7.7.4.3 Burial at Sea. Burial at sea is contemplated by the GWS-Sea. Burial at 

sea shall be conducted honorably and, if possible, according to the rites of the religion to which 

the dead belonged. 

Where a double identity disc is used, one-half of the disc should remain on the body.151 

On the other hand, if a single identity disc is used, then it should be collected and forwarded 

through the National POW Information Bureau along with other valuable articles.152

An examination and report are especially important in such cases in order to ensure that 

accountability information is collected and forwarded.153 The position (latitude and longitude) 

and the date should be recorded in the death certificate.154

7.7.4.4 Cremation. Bodies shall not be cremated except for imperative reasons of 

hygiene or for motives based on the religion of the deceased.

155 For example, hygiene reasons 

may include the risk of contamination to recovery personnel or other personnel from disease or 

exposure to chemical or biological warfare agents.

In case of cremation, the circumstances and reasons for cremation shall be stated in detail 

 147 Refer to § 7.6 (Accountability Information From the Enemy Military Wounded, Sick, Shipwrecked, and Dead); 

§ 7.7.3 (Preparation and Forwarding of Death Certificates and Lists of the Dead).

148 GWS art. 17 (“They shall further ensure that the dead are honourably interred, if possible according to the rites of 

the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality 

of the deceased, properly maintained and marked so that they may always be found.”).

149 Refer to § 9.34.3.2 (Burial).

150 GWS art. 17 (“One half of the double identity disc, or the identity disc itself if it is a single disc, should remain 

on the body.”).

151 GWS-SEA art. 20 (“Where a double identity disc is used, one half of the disc should remain on the body.”).

152 Refer to § 7.7.2.2 (Forwarding Valuable Articles Found on the Dead).

153 Refer to § 7.7.4.1 (Examination of Bodies Before Burial or Cremation).

154 GWS-SEA COMMENTARY 143 (“If, as will more often be the case, they are buried at sea, then the position 

(latitude and longitude) and date alone need be mentioned.”).

155 GWS art. 17 (“Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the 

religion of the deceased.”).
457

in the death certificate or on the authenticated list of the dead.156 

7.7.5 Graves Registration Service. In order to ensure that graves may always be found, 

parties to the conflict shall organize at the commencement of hostilities an Official Graves 

Registration Service to allow subsequent exhumations and to ensure the identification of bodies, 

whatever the site of the graves, and the possible transportation to the home country.157 The 

Graves Registration Service shall also identify, record, and respectfully keep the ashes until they 

can be disposed of in accordance with the wishes of the home country.158

The GPW provides additional requirements for the Graves Registration Service with 

respect to POWs who have died while POWs.

159

7.7.5.1 Exchange of Information Regarding Battlefield Graves. As soon as 

circumstances permit, and at the latest at the end of hostilities, the Graves Registration Services 

of the belligerents shall exchange, through the National POW Information Bureaus, lists showing 

the exact location and markings of the graves, together with particulars of the dead interred 

therein.160

7.8 RESPECT AND PROTECTION OF CATEGORIES OF MEDICAL AND RELIGIOUS PERSONNEL

Certain categories of medical and religious personnel shall be respected and protected

during military operations. 

7.8.1 Categories of Persons Who Are Entitled to Respect and Protection as Medical and 

Religious Personnel on the Battlefield. The categories of persons who are entitled to respect and 

protection as medical and religious personnel during military operations include:

• military medical and religious personnel, including161

 156 GWS art. 17 (“In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the 

death certificate or on the authenticated list of the dead.”).

157 GWS art. 17 (“They shall further ensure that the dead are honourably interred, if possible according to the rites of 

the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality 

of the deceased, properly maintained and marked so that they may always be found. For this purpose, they shall 

organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent 

exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible 

transportation to the home country.”).

158 GWS art. 17 (“These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration 

Service until proper disposal thereof in accordance with the wishes of the home country.”).

159 Refer to § 9.34.4.1 (Records Held by the Graves Registration Service).

160 GWS art. 17 (“As soon as circumstances permit, and at latest at the end of hostilities, these Services shall 

exchange, through the Information Bureau mentioned in the second paragraph of Article 16, lists showing the exact 

location and markings of the graves, together with particulars of the dead interred therein.”).

161 GWS art. 24 (“Medical personnel exclusively engaged in the search for, or the collection, transport or treatment 

of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical 

units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all 

circumstances.”). Refer to § 4.9 (Military Medical and Religious Personnel).
458

o medical personnel exclusively engaged in medical duties;162

o administrative staff exclusively engaged in support to medical units;163 and

o chaplains attached to the armed forces;

164

• auxiliary medical personnel, if they are carrying out their medical duties at the time when 

they come into contact with the enemy or fall into the enemy’s hands;165

• authorized staff of voluntary aid societies;166

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

167 and

• the religious, medical, and hospital personnel of hospital ships and their crews.168

7.8.2 Meaning of “Respect and Protection” of Medical and Religious Personnel. The 

respect and protection accorded medical and religious personnel by the GWS and GWS-Sea 

mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from 

discharging their proper functions.169 

7.8.2.1 Incidental Harm Not Prohibited. The incidental killing or wounding of 

such personnel, due to their presence among or in proximity to combatant elements actually 

engaged by fire directed at the latter, gives no just cause for complaint.170 Medical and religious 

personnel are deemed to have accepted the risk of death or injury due to their proximity to 

military operations.

171 Although the presence of medical and religious personnel does not serve 

 162 Refer to § 4.9.1.1 (Medical Personnel Exclusively Engaged in Medical Duties).

163 Refer to § 4.9.1.2 (Staff Exclusively Engaged in Support to Medical Units and Establishments).

164 Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

165 GWS art. 25 (“Members of the armed forces specially trained for employment, should the need arise, as hospital 

orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the 

wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when 

they come into contact with the enemy or fall into his hands.”). Refer to § 4.13 (Auxiliary Medical Personnel).

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

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

168 GWS-SEA art. 36 (“The religious, medical and hospital personnel of hospital ships and their crews shall be 

respected and protected; they may not be captured during the time they are in the service of the hospital ship, 

whether or not there are wounded and sick on board.”).

169 1956 FM 27-10 (Change No. 1 1976) ¶225 (“b. What is Meant by Respect and Protection. The respect and 

protection accorded personnel of certain categories by Articles 19 (par. 220), 24 (par. 67), and 25 (par. 226), GWS, 

mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging 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.”).

170 See GREENSPAN, MODERN LAW OF LAND WARFARE 57 (Medical personnel and chaplains “must accept the risks 

of accidental death or injury as a result of war operations.”).

171 Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
459

to exempt nearby military objectives from attack due to the risk that military medical and 

religious personnel would be incidentally harmed, feasible precautions must be taken to reduce 

the risk of harm to military medical and religious personnel.172

7.8.2.2 Search and Other Security Measures Not Prohibited. Medical and 

religious personnel are not immune from search or other necessary security measures by the 

enemy.173 Searches of medical and religious personnel, and other security measures applied to 

them, should be consistent with the rules applicable when such actions are taken with respect to 

POWs.

174

7.8.2.3 Capture Not Prohibited. The respect and protection afforded medical and 

religious personnel do not immunize them from detention.

175 However, certain classes of 

medical and religious personnel are, under other rules, exempt from detention or capture.176

7.8.3 Loss of Protection for Medical and Religious Personnel From Being Made the 

Object of Attack. Medical and religious personnel forfeit their protected status and therefore 

may be made the object of attack if they, outside of their humanitarian duties, participate in 

hostilities or otherwise commit acts harmful to the enemy.177

For example, weapons may not be used by medical and religious personnel against 

enemy military forces except in self-defense or defense of their patients.178 Similarly, medical or 

religious personnel who, during combat, drive vehicles carrying able-bodied combatants or 

ammunition for able-bodied combatants, forfeit their protection from being made the object of 

attack by enemy military forces.

179 Hampering or impeding enemy military operations also

would be a basis for finding that medical or religious personnel have forfeited protection.

180

Acts that are part of their humanitarian duties, such as caring for the wounded and sick,

are not a basis for depriving medical and religious personnel of their protection.

181

7.8.4 Use of the Distinctive Emblem to Facilitate the Respect and Protection of Military 

 172 Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

173 Refer to § 7.10.1.2 (Search Not Prohibited).

174 Refer to § 9.6 (Security Measures With Respect to POWs).

175 Refer to § 7.9 (Captured Medical and Religious Personnel).

176 Refer to § 7.9.1.1 (Medical and Religious Personnel Who Are Exempt From Capture and Detention).

177 GWS COMMENTARY 221 (“Nevertheless, to enjoy immunity, they must naturally abstain from any form of 

participation—even indirect—in hostile acts. We saw in Article 21 that the protection to which medical units are 

entitled ceases if they are used to commit acts ‘harmful to the enemy’. This proviso obviously applies to medical 

personnel also.”). Refer to § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made 

the Object of Attack).

178 Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

179 Compare § 7.12.2.2 (No Use for Military Purposes).

180 Compare § 7.12.2.3 (No Hampering the Movement of Combatants).

181 Refer to § 7.10.3.1 (Acts Harmful to the Enemy).
460

Medical and Religious Personnel. The GWS contemplates the use of the distinctive emblem, 

including through wearing an armlet bearing the emblem, to facilitate the identification of 

protected medical and religious personnel, as such.

Claiming protected medical status (including feigning such status) in order to deceive the 

adversary into affording protection so as then to kill or wound the enemy is prohibited.

182

As with other instances of the display of the distinctive emblem, the wearing of the 

armlet with the distinctive emblem is controlled by the competent military authority, and the 

armlet may be obscured or removed at the competent military authority’s direction.183 The fact 

that military medical and religious personnel do not wear an armlet does not deprive them of 

their protection from being made the object of attack if they are recognized as such.184

7.8.4.1 Wearing of Armlet With the Distinctive Emblem. The GWS contemplates 

that 

• military medical and religious personnel;

185

• authorized staff of voluntary aid societies;

186 and 

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

187

shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued 

and stamped by the military authority.188 In no circumstances may these personnel be deprived 

of the right to wear the armlet.189

7.8.4.2 Wearing of Armlet With Miniature Distinctive Emblem. Auxiliary medical 

personnel shall wear, but only while carrying out medical duties, a white armlet bearing in its 

center the distinctive sign in miniature; the armlet shall be issued and stamped by the military 

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

183 Refer to § 7.15.2 (Control of Display by the Competent Military Authority); § 7.15.2.1 (Removal or Obscuration 

of the Distinctive Emblem).

184 Refer to § 7.15.3 (Significance of the Display of the Distinctive Emblem).

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

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

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

188 GWS art. 40 (“The personnel designated in Article 24 and in Articles 26 and 27 shall wear, affixed to the left 

arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority.”); GWSSEA art. 42 (“The personnel designated in Articles 36 and 37 shall wear, affixed to the left arm, a water-resistant 

armlet bearing the distinctive emblem, issued and stamped by the military authority.”).

189 GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or identity cards nor of 

the right to wear the armlet.”); GWS-SEA art. 42 (“In no circumstances may the said personnel be deprived of their 

insignia or identity cards nor of the right to wear the armlet.”).
461

authority.190

7.9 CAPTURED MEDICAL AND RELIGIOUS PERSONNEL

The treatment of captured persons who perform medical or religious duties depends on 

their legal status. Identification cards are used to help determine the correct status of medical 

and religious personnel. Retained personnel are subject to certain duties, rights, and privileges 

during detention.

7.9.1 Different Classes of Persons Performing Medical or Religious Duties. Persons who 

perform medical or religious duties may be grouped into three categories based on their 

treatment with respect to detention: (1) medical and religious personnel who are exempt from 

capture; (2) medical and religious personnel who may be retained; and (3) persons who perform 

medical and religious duties who are held as POWs.

7.9.1.1 Medical and Religious Personnel Who Are Exempt From Capture and 

Detention. Certain classes of medical and religious personnel are exempt from capture and

detention. These classes of personnel include:

• staff of a recognized aid society of a neutral country;191 and

• the religious, medical, and hospital personnel of hospital ships and their crews during the 

time they are in service of the hospital ship, whether or not there are wounded and sick on 

board.192

Such individuals may be held temporarily pending determination of their status or until 

conditions permit their safe return or release.193

7.9.1.2 Medical and Religious Personnel Who May Be Retained. Certain classes

of medical and religious personnel who fall into the hands of the adverse party shall be retained 

only in so far as the state of health, the spiritual needs, and the number of POWs require.194 

Personnel who are retained in this way are not considered POWs.195

 190 GWS art. 41 (“The personnel designated in Article 25 shall wear, but only while carrying out medical duties, a 

white armlet bearing in its centre the distinctive sign in miniature; the armlet shall be issued and stamped by the 

military authority.”).

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

192 GWS-SEA art. 36 (“The religious, medical and hospital personnel of hospital ships and their crews shall be 

respected and protected; they may not be captured during the time they are in service of the hospital ship, whether or 

not there are wounded and sick on board.”).

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

194 GWS art. 28 (“Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party, shall be 

retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.”).

195 GPW art. 33 (“Members of the medical personnel and chaplains while retained by the Detaining Power with a 

view to assisting prisoners of war, shall not be considered as prisoners of war.”); GWS art. 28 (“Personnel thus 

retained shall not be deemed prisoners of war.”). See also GPW art. 4C (“This Article shall in no way affect the 

status of medical personnel and chaplains as provided for in Article 33 of the present Convention.”).
462

These classes of personnel include:

• military medical and religious personnel, including196

o medical personnel exclusively engaged in medical duties;197

o administrative staff exclusively engaged in support to medical units;198 and

o chaplains attached to the armed forces;199 and

• authorized staff of voluntary aid societies.

200

7.9.1.3 Persons Performing Medical or Religious Duties Who Are Held as POWs.

Certain classes of persons who perform medical or religious duties are held as POWs if they fall 

into the hands of the enemy during international armed conflict. These classes of personnel

include:

• auxiliary medical personnel, if they are carrying out their medical duties at the time when 

they come into contact with the enemy or fall into the enemy’s hands;201

• members of the armed forces who are trained as medical personnel, but not attached to 

the medical service;202

• members of the armed forces who are ministers of religion without having officiated as 

chaplains to their own forces;203 and

• military medical and religious personnel who forfeit their status as retained personnel 

because they are not exclusively engaged in medical and religious duties.204

7.9.2 Use of Identification Card to Help Establish Retained Personnel Status. The 1949 

Geneva Conventions contemplate that identification cards will be used to help establish the 

proper status of persons, including the entitlement to retained personnel status.205 

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

197 Refer to § 4.9.1.1 (Medical Personnel Exclusively Engaged in Medical Duties).

198 Refer to § 4.9.1.2 (Staff Exclusively Engaged in Support to Medical Units and Establishments).

199 Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

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

201 Refer to § 4.13 (Auxiliary Medical Personnel).

202 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service).

203 Refer to § 4.5.2.3 (Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their 

Own Forces).

204 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

205 Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).
463

Persons entitled to retained personnel status, in addition to wearing the identity disc 

mentioned in Article 16 of the GWS or Article 19 of the GWS-Sea, shall also carry a special 

identity card bearing the distinctive emblem.206

This card shall be water-resistant and of such size that it can be carried in the pocket. It 

shall be worded in the national language; shall mention at least the surname and first names, the 

date of birth, the rank, and the service number of the bearer; and shall state in what capacity the 

bearer is entitled to the protection of the GWS or GWS-Sea. The card shall bear the photograph 

of the owner and also either the bearer’s signature or fingerprints or both. It shall be embossed 

with the stamp of the military authority.

207

The identity card shall be uniform throughout the same armed forces and, as far as 

possible, of a similar type in the armed forces of the Parties to the GWS and GWS-Sea. The 

parties to the conflict may be guided by the model, which is annexed, by way of example, to the 

GWS and GWS-Sea. Parties to the conflict shall inform each other, at the outbreak of hostilities, 

of the model they are using. Identity cards should be made out, if possible, at least in duplicate, 

one copy being kept by the home country.208

In no circumstances may retained personnel be deprived of their insignia or identity cards

nor of the right to wear the armlet.209 In case of loss, they shall be entitled to receive duplicates

of the cards and to have the insignia replaced.210

7.9.3 Duties of Retained Personnel. Within the framework of the military laws and 

regulations of the Detaining Power, and under the authority of its competent service, retained

personnel shall continue to carry out, in accordance with their professional ethics, their medical 

and spiritual duties on behalf of POWs, preferably those of the armed forces to which they 

themselves belong.211 This preference for retained personnel to treat the POWs of the armed 

 206 GWS art. 40 (“Such personnel, in addition to wearing the identity disc mentioned in Article 16, shall also carry a 

special identity card bearing the distinctive emblem.”); GWS-SEA art. 42 (“Such personnel, in addition to wearing 

the identity disc mentioned in Article 19, shall also carry a special identity card bearing the distinctive emblem.”).

207 GWS art. 40 (“This card shall be water-resistant and of such size that it can be carried in the pocket. It shall be 

worded in the national language, shall mention at least the surname and first names, the date of birth, the rank and 

the service number of the bearer, and shall state in what capacity he is entitled to the protection of the present 

Convention. The card shall bear the photograph of the owner and also either his signature or his finger-prints or 

both. It shall be embossed with the stamp of military authority.”); GWS-SEA (same).

208 GWS art. 40 (“The identity card shall be uniform throughout the same armed forces and, as far as possible, of a 

similar type in the armed forces of the High Contracting Parties. The Parties to the conflict may be guided by the 

model which is annexed, by way of example, to the present Convention. They shall inform each other, at the 

outbreak of hostilities, of the model they are using. Identity cards should be made out, if possible, at least in 

duplicate, one copy being kept by the home country.”); GWS-SEA art. 42 (same).

209 GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or identity cards nor of 

the right to wear the armlet.”); GWS-SEA art. 42 (same).

210 GWS art. 40 (“In case of loss, they shall be entitled to receive duplicates of the cards and to have the insignia 

replaced.”); GWS-SEA art. 42 (same).

211 GWS art. 28 (“Within the framework of the military laws and regulations of the Detaining Power, and under the 

authority of its competent service, they shall continue to carry out, in accordance with their professional ethics, their 

medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they 
464

forces to which the retained personnel belong is also reflected in the provisions of the GPW

related to the medical treatment of POWs.

212

Like POWs, retained personnel may be subject to disciplinary or judicial proceedings for 

violations of the laws and regulations of the Detaining Power.213

If retained personnel refuse to perform their medical duties on behalf of POWs, they are 

liable to forfeit their status as retained personnel.214

7.9.4 Return of Personnel Whose Retention Is Not Indispensable. Personnel whose 

retention is not indispensable to provide for the health and spiritual needs of POWs shall be 

returned to the party to the conflict to whom they belong, as soon as a road is open for their 

return and military requirements permit.215 As a historical matter, such return has been 

exceptional while hostilities are ongoing.216

7.9.4.1 Treatment Pending Return. Pending their return, such personnel whose 

retention is not indispensable shall not be deemed POWs; nevertheless, they shall at least benefit 

from all the provisions of the GPW.217 They shall continue to fulfill their duties under the orders 

of the adverse party and shall preferably be engaged in the care of the wounded and sick of the 

party to the conflict to which they themselves belong.218

On their departure, they shall take with them the effects, personal belongings, valuables, 

and instruments belonging to them.219

 themselves belong.”); GPW art. 33 (“Members of the medical personnel and chaplains while retained by the 

Detaining Power with a view to assisting prisoners of war, shall ... continue to exercise their medical and spiritual 

functions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they 

depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its 

competent services, in accordance with their professional etiquette.”).

212 Refer to § 9.14.2.2 (Treatment by Medical Personnel of the Power on Which They Depend).

213 Refer to § 9.26 (General Principles Applicable to POW Discipline); § 9.27 (Disciplinary Proceedings and 

Punishment); § 9.28 (Judicial Proceedings and Punishment).

214 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

215 GWS art. 30 (“Personnel whose retention is not indispensable by virtue of the provisions of Article 28 shall be 

returned to the Party to the conflict to whom they belong, as soon as a road is open for their return and military 

requirements permit.”).

216 See Lewis C. Vollmar, Jr., Military Medicine in War: The Geneva Conventions Today, Chapter 23 in II 

MILITARY MEDICAL ETHICS 739, 746 (2003) (“As it always has been throughout the development of the Geneva 

Conventions, retention of medical personnel remains subordinate to their repatriation. But, if history is any 

indication of the future, it is likely that retention will become the rule and repatriation will remain the exception.”).

217 GWS art. 30 (“Pending their return, they shall not be deemed prisoners of war. Nevertheless they shall at least 

benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 

1949.”).

218 GWS art. 30 (“They shall continue to fulfil their duties under the orders of the adverse Party and shall preferably 

be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong.”).

219 GWS art. 30 (“On their departure, they shall take with them the effects, personal belongings, valuables and 

instruments belonging to them.”).
465

7.9.4.2 Selection of Personnel for Return. The selection of personnel for return 

under Article 30 of the GWS shall be made irrespective of any consideration of race, religion, or 

political opinion, but preferably according to the chronological order of their capture and their 

state of health.220

7.9.4.3 Special Agreements on the Percentage of Personnel to Be Retained. As 

from the outbreak of hostilities, parties to the conflict may determine by special agreement the 

percentage of personnel to be retained, in proportion to the number of POWs and the distribution 

of these medical and religious personnel in the camps.221

7.9.5 Rights and Privileges of Retained Personnel. 

7.9.5.1 POW Treatment as a Minimum. Retained personnel shall receive, as a 

minimum, the benefits and protection of the GPW.

222

7.9.5.2 All Facilities Necessary to Provide for the Medical Care of, and Religious 

Ministration to, POWs. Retained personnel shall also be granted all facilities necessary to 

provide for the medical care of, and religious ministration to, POWs.

223

7.9.5.3 Visits of POWs Outside the Camp. Retained personnel, including 

chaplains, shall be authorized to visit periodically POWs situated in working detachments or in 

hospitals outside the camp.224 For this purpose, the Detaining Power shall place at their disposal 

the necessary means of transport.225

7.9.5.4 Correspondence by Chaplains. Chaplains shall be free to correspond, 

 220 GWS art. 31 (“The selection of personnel for return under Article 30 shall be made irrespective of any 

consideration of race, religion or political opinion, but preferably according to the chronological order of their 

capture and their state of health.”).

221 GWS art. 31 (“As from the outbreak of hostilities, Parties to the conflict may determine by special agreement the 

percentage of personnel to be retained, in proportion to the number of prisoners and the distribution of the said 

personnel in the camps.”).

222 GWS art. 28 (Retained personnel “shall at least benefit by all the provisions of the Geneva Convention relative to 

the Treatment of Prisoners of War of 12 August 1949.”); GPW art. 33 (“Members of the medical personnel and 

chaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall ... receive as a 

minimum the benefits and protection of the present Convention,”).

223 GPW art. 33 (“Members of the medical personnel and chaplains while retained by the Detaining Power with a 

view to assisting prisoners of war, shall not be considered as prisoners of war. They shall, however, receive as a 

minimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary to 

provide for the medical care of, and religious ministration to prisoners of war.”); GWS art. 28 (“Personnel thus 

retained shall not be deemed prisoners of war. Nevertheless they shall at least benefit from the provisions of the 

Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).

224 GPW art. 33 (“They shall be authorized to visit periodically prisoners of war situated in working detachments or 

in hospitals outside the camp.”); GWS art. 28 (“They shall be authorized to visit periodically the prisoners of war in 

labour units or hospitals outside of the camp.”); GPW art. 35 (“[Chaplains] shall enjoy the necessary facilities, 

including the means of transport provided for in Article 33, for visiting the prisoners of war outside their camp.”).

225 GPW art. 33 (“For this purpose, the Detaining Power shall place at their disposal the necessary means of 

transport.”); GWS art. 28 (“The Detaining Power shall put at their disposal the means of transport required.”).
466

subject to censorship, on matters concerning their religious duties with the ecclesiastical 

authorities in the country of detention and with international religious organizations.

226 Letters 

and cards, which they may send for this purpose, shall be in addition to the quota provided for in 

Article 71 of the GPW.227

7.9.5.5 Proposal of POWs for Examination by Mixed Medical Commissions. 

Retained medical personnel may propose wounded and sick POWs for examination by Mixed 

Medical Commissions with a view towards repatriation or accommodation in a neutral country 

and the entitlement to attend examinations conducted by Mixed Medical Commissions.228

7.9.5.6 No Other Compulsory Duties. Although they shall be subject to the 

internal discipline of the camp in which they are retained, such personnel may not be compelled 

to carry out any work other than that concerned with their medical or religious duties.229

7.9.5.7 Senior Medical Officer in the Camp. The senior medical officer in each 

camp shall be responsible to the camp military authorities for everything connected with the 

activities of retained medical personnel.230 For this purpose, parties to the conflict shall agree at 

the outbreak of hostilities on the subject of the corresponding ranks of the medical personnel, 

including that of societies mentioned in Article 26 of the GWS.231

In all questions arising out of their duties, the senior medical officer, and chaplains, shall 

have direct access to the military and medical authorities of the camp, who shall grant them the 

facilities they may require for correspondence relating to these questions.232

 226 GPW art. 35 (“They shall be free to correspond, subject to censorship, on matters concerning their religious 

duties with the ecclesiastical authorities in the country of detention and with international religious organizations.”).

227 GPW art. 35 (“Letters and cards which they may send for this purpose shall be in addition to the quota provided 

for in Article 71.”). Refer to § 9.20.2.1 (POW Correspondence Quota).

228 Refer to § 9.36.5.2 (POWs Entitled to Present Themselves for Examination Before the Commission); § 9.36.5.3

(Observers at the Examination).

229 GPW art. 33 (“Although they shall be subject to the internal discipline of the camp in which they are retained, 

such personnel may not be compelled to carry out any work other than that concerned with their medical or religious 

duties.”); GWS art. 28 (“Although retained personnel in a camp shall be subject to its internal discipline, they shall 

not, however, be required to perform any work outside their medical or religious duties.”).

230 GPW art. 33 (“The senior medical officer in each camp shall be responsible to the camp military authorities for 

everything connected with the activities of retained medical personnel.”); GWS art. 28 (“In each camp, the senior 

medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional 

activity of the retained military medical personnel.”).

231 GPW art. 33 (“For this purpose, Parties to the conflict shall agree at the outbreak of hostilities on the subject of 

the corresponding ranks of the medical personnel, including that of societies mentioned in Article 26 of the Geneva 

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 

12, 1949.”); GWS art. 28 (“For this purpose, from the outbreak of hostilities, the Parties to the conflict shall agree 

regarding the corresponding seniority of the ranks of their medical personnel, including those of the societies 

designated in Article 26.”).

232 GWS art. 28 (“In all questions arising out of their duties, this medical officer, and the chaplains, shall have direct 

access to the military and medical authorities of the camp who shall grant them the facilities they may require for 

correspondence relating to these questions.”); GPW art. 33 (“This senior medical officer, as well as chaplains, shall 
467

7.9.5.8 Agreements on Possible Relief of Retained Personnel. During hostilities, 

the parties to the conflict shall agree concerning the possible relief of retained personnel and 

shall settle the procedure to be followed.233 This provision arose from limited practice in World 

War II where retained personnel were repatriated and replaced by medical personnel from their

home country.234

7.9.6 No Relief of Obligations of the Detaining Power. None of the provisions of Article 

28 of the GWS or Article 33 of the GPW shall relieve the Detaining Power of its obligations with 

regard to POWs from the medical or spiritual point of view.235 In other words, the fact that the 

Detaining Power permits and enables retained personnel to care for POWs does not relieve the 

Detaining Power of its own responsibilities to care for POWs.

7.10 MILITARY MEDICAL UNITS AND FACILITIES

Fixed establishments and mobile medical units of the Medical Service (i.e., military 

medical units and facilities) may in no circumstances be attacked, but shall at all times be 

respected and protected by the parties to the conflict.236 In addition, establishments ashore that 

are entitled to the protection of the GWS shall be protected from bombardment or attack from the 

sea.237

7.10.1 Meaning of “Respect and Protection” of Military Medical Units and Facilities. 

The respect and protection accorded by the GWS to military medical units and facilities mean 

that they must not knowingly be attacked, fired upon, or unnecessarily prevented from 

discharging their proper functions.238

7.10.1.1 Incidental Harm Not Prohibited. The incidental harm to military 

 have the right to deal with the competent authorities of the camp on all questions relating to their duties. Such 

authorities shall afford them all necessary facilities for correspondence relating to these questions.”).

233 GPW art. 33 (“During hostilities, the Parties to the conflict shall agree concerning the possible relief of retained 

personnel and shall settle the procedure to be followed.”); GWS art. 28 (“During hostilities the Parties to the conflict 

shall make arrangements for relieving where possible retained personnel, and shall settle the procedure of such 

relief.”).

234 GWS COMMENTARY 257 (“During the last World War certain belligerents planned to relieve doctors retained in 

enemy camps, by personnel from the home country. On being replaced the doctors in question were to be 

repatriated. A beginning was made in the case of some Yugoslav doctors and a larger number of French doctors 

retained in Germany.”).

235 GPW art. 33 (“None of the preceding provisions shall relieve the Detaining Power of its obligations with regard 

to prisoners of war from the medical or spiritual point of view.”); GWS art. 28 (“None of the preceding provisions 

shall reIieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare 

of the prisoners of war.”).

236 GWS art. 19 (“Fixed establishments and mobile medical units of the Medical Service may in no circumstances be 

attacked, but shall at all times be respected and protected by the Parties to the conflict.”).

237 GWS-SEA art. 23 (“Establishments ashore entitled to protection of the Geneva Convention for the Amelioration 

of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be protected from 

bombardment or attack from the sea.”).

238 Refer to § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).
468

medical units or facilities, due to their presence among or in proximity to combatant elements 

actually engaged, by fire directed at the latter, gives no just cause for complaint.239 Commanders 

are obligated to situate military medical units and facilities such that they are not in danger from 

attack against military objectives.240 Military medical units and facilities that are positioned near 

military objectives are deemed to have accepted the risk of harm due to their proximity to 

military operations.

241 Although the presence of military medical units and facilities does not 

serve to exempt nearby military objectives from attack due to the risk that military medical units 

and facilities would be incidentally harmed, feasible precautions must be taken to reduce the risk 

of harm to military medical units and facilities.242

7.10.1.2 Search Not Prohibited. Military medical units and facilities are not 

immune from search by the enemy.

243 For example, search may be necessary to verify that these 

units and facilities are not being used, outside their humanitarian duties, to commit acts harmful 

to the enemy.

7.10.1.3 Capture Not Prohibited. The respect and protection afforded military 

medical units and facilities do not immunize them from capture.244

7.10.2 Obligation to Situate Military Medical Units and Facilities Relative to Military 

Objectives. Responsible authorities shall ensure that military medical establishments and units 

are, as far as possible, situated in such a manner that attacks against military objectives cannot 

imperil their safety.245

In no case may a military medical unit or facility be used for the purpose of shielding

military objectives from attack.246

 239 Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations). For example, Col. Robert 

D. Heinl, Jr., Military Writer Charges: Reds Dupe Doves On Hanoi Hospital, THE PITTSBURGH PRESS, Jan. 10, 

1973 (“Bach Mai Hospital, outside Hanoi, appears to have replaced North Vietnam’s inconveniently intact dike 

systems as Exhibit A in the Communist propaganda campaign to convict the United States of war crimes, atrocities 

and what is called ‘terror bombing.’ Bach Mai, or what is left of it, has been regularly shown to visiting American 

antiwar activists as evidence that we are singling out hospitals, orphanages and similar illegal targets in the air war 

against Hanoi. ... Examination of current aerial photographs shows the hospital to be sited by the Communists in the 

very bull’s-eye of a ring of military targets. ... Besides being virtually astride the Communists’ main logistic artery 

for support of the war, the damaged hospital lies just across the road from Bach Mai Airfield, one of North 

Vietnam’s most important military airdromes. Within a few hundred yards of Bach Mai Hospital, the 

Communists maintain their main command center for the air defense of the North.”).

240 Refer to § 7.10.2 (Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives).

241 Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).

242 Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

243 1956 FM 27-10 (Change No. 1 1976) ¶221 (“GWS does not confer immunity from search by the enemy on 

medical units, establishments, or transports.”).

244 Refer to § 7.10.5 (Capture of Military Medical Units and Facilities).

245 GWS art. 19 (“The responsible authorities shall ensure that the said medical establishments and units are, as far 

as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.”).

246 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).
469

7.10.2.1 Necessity for the Intermingling of Military Objectives and Military 

Medical Units and Facilities. The obligation to situate medical units and facilities so that attacks 

against military objectives cannot imperil their safety is limited by practical considerations.

For example, in order to perform their medical duties effectively, medical units and 

facilities must, to some degree, be intermingled with military objectives (such as combatants or 

vehicles that constitute military objectives). In addition, medical units and facilities may be 

faced with threats of unlawful attacks (e.g., from criminal elements or enemy combatants not 

abiding by the law of war) that may warrant the placement of medical units and facilities in a 

more secure location (e.g., within the perimeter of a military base) so that they may be guarded 

by combatant units. Logistical considerations (e.g., access to roads, water, power, or 

communications) may also limit the implementation of this obligation.

7.10.2.2 Implementation of the Obligation to Situate Medical Units and Facilities. 

Implementing the obligation to ensure that military medical units and facilities are, as far as 

possible, situated in such a manner that attacks against military objectives cannot imperil their 

safety is a responsibility of commanders of military medical units, as well as commanders of 

combatant units.

Commanders of military medical units and facilities should, as far as possible, place their 

units and facilities so as to protect them from the effects of enemy attacks on military objectives. 

Commanders of combatant units should also avoid placing their units in proximity to medical 

units and facilities to the extent feasible. For example, procedures should be established to 

ensure that, during international armed conflict, non-medical vehicles or personnel do not remain

unnecessarily within or near medical facilities.

7.10.3 Loss of Protection of Military Medical Units and Facilities From Being Made the 

Object of Attack. The protection from being made the object of attack, to which fixed 

establishments and mobile medical units of the Medical Service are entitled, shall not cease 

unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.247

7.10.3.1 Acts Harmful to the Enemy. Medical establishments and units must 

refrain from all interference, direct or indirect, in military operations.248 For example, a hospital 

may not be used as a shelter for able-bodied combatants or fugitives, as an arms or ammunition 

depot, or as a military observation post.249 A medical unit must not be deliberately situated so as 

 247 GWS art. 21 (“The protection to which fixed establishments and mobile medical units of the Medical Service are 

entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. 

Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a 

reasonable time limit, and after such warning has remained unheeded.”).

248 GWS COMMENTARY 201 (“Medical establishments and units must observe, towards the opposing belligerent, the 

neutrality which they claim for themselves and which is their right under the Convention. Being placed outside the 

struggle, they must loyally refrain from all interference, direct or indirect, in military operations.”).

249 GWS COMMENTARY 200-01 (“Such harmful acts would, for example, include the use of a hospital as a shelter for 

able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another 

instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.”).
470

to hamper or impede an enemy attack.250

Acts that are part of their humanitarian duties, such as caring for the wounded and sick,

are not a basis for depriving medical units and facilities of their protection.251

7.10.3.2 Due Warning Before Cessation of Protection. Protection may, however, 

cease only after a due warning has been given, naming, in all appropriate cases, a reasonable 

time limit, and after such warning has remained unheeded.252

The obligation to refrain from use of force against a medical unit acting in violation of its 

mission and protected status without due warning does not prohibit the exercise of the right of 

self-defense. There may be cases in which, in the exercise of the right of self-defense, a warning 

is not “due” or a reasonable time limit is not appropriate. For example, forces receiving heavy 

fire from a hospital may exercise their right of self-defense and return fire.253 Such use of force 

in self-defense against medical units or facilities must be proportionate.254 For example, a single 

enemy rifleman firing from a hospital window would warrant a response against the rifleman 

only, rather than the destruction of the hospital.

7.10.3.3 Conditions Not Depriving Military Medical Units or Facilities of 

Protection. The following conditions shall not be considered as depriving a medical unit or 

establishment of the protection guaranteed by Article 19 of the GWS:

• That the personnel of the unit or establishment are armed, and that they use the arms in 

their own defense, or in that of the wounded and sick in their charge.

• That in the absence of armed orderlies, the unit or establishment is protected by a picket,

by sentries, or by an escort.

• That small arms and ammunition taken from the wounded and sick and not yet handed to 

the proper service are found in the unit or establishment.

 250 Compare § 7.12.2.3 (No Hampering the Movement of Combatants).

251 GWS COMMENTARY 201 (“The Diplomatic Conference of 1949 stated specifically that protection could only 

cease in the case of harmful acts committed by the units ‘outside their humanitarian duties’. It is possible for a 

humane act to be harmful to the enemy, or for it to be wrongly interpreted as so being by an enemy lacking in 

generosity. Thus the presence or activities of a medical unit might interfere with tactical operations; so might its 

lights at night. It was stated, for example, at the Conference, that the waves given off by an X-ray apparatus could 

interfere with the transmission or reception of wireless messages by a military set, or with the working of a radar 

unit.”).

252 GWS art. 21 (“The protection to which fixed establishments and mobile medical units of the Medical Service are 

entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. 

Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a 

reasonable time limit, and after such warning has remained unheeded.”).

253 See GWS COMMENTARY 202 (“As we have seen, a time limit is to be named ‘in all appropriate cases’. There 

might obviously be cases where no time limit could be allowed. Suppose, for example, that a body of troops 

approaching a hospital were met by heavy fire from every window. Fire would be returned without delay.”).

254 Refer to § 2.4 (Proportionality).
471

• That personnel and material of the veterinary service are found in the unit or 

establishment, without forming an integral part thereof; and

• That the humanitarian activities of medical units and establishments or of their personnel 

extend to the care of civilian wounded or sick.255

7.10.3.4 Arming of Military Medical Units or Facilities. The GWS contemplates 

that the personnel of medical units or establishments may be armed, and it does not specifically 

restrict the weapons that medical units or facilities may have.

256

Military medical units and facilities may be armed to the extent necessary to enable them 

to defend themselves or their patients against unlawful attacks.257 For example, military medical 

and religious personnel may be equipped with weapons to meet internal security needs, to 

maintain discipline, to protect staff and patients from criminal threats of violence, and to prevent 

the theft of medical supplies. On the other hand, medical units or establishments should not be 

armed such that they would appear to an enemy military force to present an offensive threat.258 

The type of weapon that is necessary for defensive or other legitimate purposes may depend on 

the anticipated threats against the medical unit or facility.

7.10.3.5 Use of Weapons in Self-Defense or Defense of the Wounded and Sick. 

Although medical personnel may carry arms for self-defense, they may not employ such arms 

against enemy forces acting in conformity with the law of war.259 Medical personnel must 

refrain from all aggressive action and may not use force to resist the advance of enemy forces 

(e.g., to prevent the search or capture of their unit or the wounded and sick in their care by 

 255 GWS art. 22 (“The following conditions shall not be considered as depriving a medical unit or establishment of 

the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and that they 

use the arms in their own defence, or in that of the wounded and sick in their charge. (2) That in the absence of 

armed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort. (3) That small arms 

and ammunition taken from the wounded and sick and not yet handed to the proper service, are found in the unit or 

establishment. (4) That personnel and material of the veterinary service are found in the unit or establishment, 

without forming an integral part thereof. (5) That the humanitarian activities of medical units and establishments or 

of their personnel extend to the care of civilian wounded or sick.”).

256 See GWS art. 22 (“The following conditions shall not be considered as depriving a medical unit or establishment 

of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and that 

they use the arms in their own defence, or in that of the wounded and sick in their charge. (2) That in the absence of 

armed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort.”).

257 For example, U.S. military medical and religious personnel have been armed with the M9 pistol, M16 rifle, or 

M4 carbine.

258 For example, U.S. military medical and religious personnel have generally not been authorized to carry or 

employ crew-served weapons, hand grenades, grenade launchers, antitank weapons, or Claymore munitions.

259 1956 FM 27-10 (Change No. 1 1976) ¶223b (“Although medical personnel may carry arms for self-defense, they 

may not employ such arms against enemy forces acting in conformity with the law of war. These arms are for their 

personal defense and for the protection of the wounded and sick under their charge against marauders and other 

persons violating the law of war.”).
472

enemy military forces).

260 

Medical personnel may use force to defend themselves or the wounded and sick in their 

care from unlawful attacks, such as those from unprivileged belligerents or other persons 

violating the law of war.

261

Medical personnel who use their arms in circumstances not justified by the law of war 

expose themselves to penalties for violation of the law of war and, provided they have been 

given due warning to cease such acts, may also forfeit the protection of the medical unit or 

facility of which they form part or that they are protecting.262

7.10.3.6 Temporary Presence of Combatants or Other Military Objectives Within 

a Medical Unit or Facility. In some cases, combatants or other military objectives may be 

temporarily present within a medical unit or facility. For example, a military vehicle that is not 

protected as medical aircraft or transport may deliver the wounded or sick to a medical facility. 

Similarly, a commander may visit a hospital to visit wounded or sick members of the 

commander’s unit for the benefit of their morale, or to award medals.

The temporary presence of combatants or other military objectives within a medical unit 

or facility does not automatically constitute an act harmful to the enemy that forfeits its 

protection from being made the object of attack. More facts would be necessary to establish that 

the medical unit or facility was somehow being used to commit acts harmful to the enemy, such 

as if a unit or facility were being used for the purpose of sheltering able-bodied combatants or 

providing a base from which military operations were being planned or conducted.

7.10.4 Use of the Distinctive Emblem to Facilitate the Identification of Medical Units and 

Facilities. The GWS contemplates that the distinctive emblem will be used to facilitate the 

identification of medical units and facilities as such.

7.10.4.1 Flying of the Distinctive Flag of the GWS Over Medical Units and 

Facilities. The distinctive flag of the GWS shall be hoisted only over such medical units and 

establishments as are entitled to be respected under the GWS, and only with the consent of the 

 260 See, e.g., DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, Enclosure 2 ¶E.2.3.2 

(Jan. 8, 2001) (“[M]edical personnel and chaplains are subject to lawful capture. They may only resort to arms in 

self-defense or in defense of the wounded and sick in their charge when attacked in violation of the Geneva 

Convention (I). They must refrain from all aggressive action and may not use force to prevent their capture or that 

of their unit by the enemy.”); GWS COMMENTARY 203 (“But such personnel may only resort to arms for purely 

defensive purposes, and in cases where it is obviously necessary. They must refrain from all aggressive action and 

may not use force to prevent the capture of their unit by the enemy.”).

261 GWS COMMENTARY 203 (“If a medical unit is attacked, in violation of the Convention, its personnel cannot be 

asked to sacrifice themselves without resistance. Quite apart from the above extreme case, it is clearly necessary for 

medical personnel to be in a position to ensure the maintenance of order and discipline in the units under their 

charge.”).

262 1956 FM 27-10 (Change No. 1 1976) ¶223b (“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.”).
473

military authorities.263 In mobile units, as in fixed establishments, it may be accompanied by the 

national flag of the party to the conflict to which the unit or establishment belongs.264

Nevertheless, medical units that have fallen into the hands of the enemy shall not fly any 

flag other than that of the GWS.

265

7.10.4.2 Necessary Steps to Make the Distinctive Emblems Clearly Visible. 

Parties to the conflict shall take the necessary steps, in so far as military considerations permit, to 

make the distinctive emblems indicating medical units and establishments clearly visible to the 

enemy land, air, and naval forces, in order to obviate the possibility of any hostile action.266

7.10.5 Capture of Military Medical Units and Facilities. Military medical units and 

facilities may be captured. Should they fall into the hands of the adverse party, their personnel 

shall be free to pursue their duties, as long as the capturing Power has not itself ensured the 

necessary care of the wounded and sick found in such establishments and units.267

7.10.5.1 Disposition of Buildings, Material, and Stores of Captured Medical Units 

and Facilities. The material of mobile medical units of the armed forces that fall into the hands 

of the enemy shall be reserved for the care of wounded and sick.268

The buildings, material, and stores of fixed medical establishments of the armed forces 

shall remain subject to the laws of war (e.g., they may be captured and used by the enemy 

military force269), but may not be diverted from their purpose as long as they are required for the 

care of wounded and sick.270 Nevertheless, the commanders of forces in the field may make use 

of them, in case of urgent military necessity, provided that they make previous arrangements for 

 263 GWS art. 42 (“The distinctive flag of the Convention shall be hoisted only over such medical units and 

establishments as are entitled to be respected under the Convention, and only with the consent of the military 

authorities.”).

264 GWS art. 42 (“In mobile units, as in fixed establishments, it may be accompanied by the national flag of the Party 

to the conflict to which the unit or establishment belongs.”).

265 GWS art. 42 (“Nevertheless, medical units which have fallen into the hands of the enemy shall not fly any flag 

other than that of the Convention.”).

266 GWS art. 42 (“Parties to the conflict shall take the necessary steps, in so far as military considerations permit, to 

make the distinctive emblems indicating medical units and establishments clearly visible to the enemy land, air or 

naval forces, in order to obviate the possibility of any hostile action.”).

267 GWS art. 19 (“Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their 

duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in 

such establishments and units.”).

268 GWS art. 33 (“The material of mobile medical units of the armed forces which fall into the hands of the enemy, 

shall be reserved for the care of wounded and sick.”).

269 Refer to § 5.17 (Seizure and Destruction of Enemy Property).

270 GWS art. 33 (“The buildings, material and stores of fixed medical establishments of the armed forces shall 

remain subject to the laws of war, but may not be diverted from their purpose as long as they are required for the 

care of wounded and sick.”).
474

the welfare of the wounded and sick who are being cared for in them.271

The material and stores of mobile medical units and fixed medical establishments of the 

armed forces that fall into the hands of the enemy shall not be intentionally destroyed.272

7.11 GROUND TRANSPORTS OF THE WOUNDED AND SICK, OR OF MEDICAL EQUIPMENT

Ground transports of wounded and sick, or of medical equipment, shall be respected and 

protected in the same way as mobile medical units.273

7.11.1 Protection of Ground Medical Transports on the Same Basis as That of Medical 

Units. The protection to which these transports are entitled shall not cease unless they are used 

to commit, outside their humanitarian duties, acts harmful to the enemy.274 

As with medical units, these ground transports must refrain from all interference, direct 

or indirect, in military operations in order to retain protection.275 For example, these ground 

transports must not be used to transport able-bodied combatants or to carry ammunition to 

combat forces.276

The protection for ground transports of the wounded and sick, or of medical equipment,

may cease only after due warning has been given, naming, in all appropriate cases, a reasonable 

time limit, and after such warning has remained unheeded.277

7.11.2 Captured Medical Transport. Should these ground medical transports or vehicles 

fall into the hands of the adverse party, they shall be subject to the laws of war, on condition that 

the party to the conflict who captures them shall in all cases ensure the care of the wounded and 

sick they contain.278 The reference to the laws of war means that the adverse party may seize 

and dispose of the property as enemy property.279 Thus, the adverse party may use or dispose of 

such transports (including by removing the distinctive emblem and using the vehicle for a hostile 

purpose), provided that the capturing party ensures the care of the wounded and sick being 

 271 GWS art. 33 (“Nevertheless, the commanders of forces in the field may make use of them, in case of urgent 

military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who are 

nursed in them.”).

272 GWS art. 33 (“The material and stores defined in the present Article shall not be intentionally destroyed.”).

273 GWS art. 35 (“Transports of wounded and sick or of medical equipment shall be respected and protected in the 

same way as mobile medical units.”). Refer to § 7.10 (Military Medical Units and Facilities).

274 Compare § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object of 

Attack).

275 Compare § 7.10.3.1 (Acts Harmful to the Enemy).

276 Compare § 7.12.2.2 (No Use for Military Purposes).

277 Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).

278 GWS art. 35 (“Should such transports or vehicles fall into the hands of the adverse Party, they shall be subject to 

the laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of the 

wounded and sick they contain.”).

279 Refer to § 5.17 (Seizure and Destruction of Enemy Property).
475

carried in such transports.280

The civilian personnel and all means of transport obtained by requisition shall be subject 

to the general rules of international law.281 This rule is stated broadly to account for a variety of 

situations. For example, if the civilian personnel and vehicles have been requisitioned in 

occupied territory by the Occupying Power and then captured by a State that is adverse to the 

Occupying Power, the persons and property would likely belong to the capturing State or a State 

that is friendly to the capturing State and thus likely would not fall under the GC.282 On the 

other hand, the civilian personnel and vehicles could have been requisitioned by a belligerent 

State within in its own territory and, upon capture by enemy forces, the persons and property 

likely would fall under the protection of the GC.

283

7.12 HOSPITAL SHIPS, SICK-BAYS IN WARSHIPS, AND COASTAL RESCUE CRAFT

7.12.1 Types of Hospital Ships and Coastal Rescue Craft. 

7.12.1.1 Military Hospital Ships. Military hospital ships, that is to say, ships built 

or equipped by the Powers specially and solely with a view to assisting the wounded, sick, and 

shipwrecked, to treating them, and to transporting them, may in no circumstances be attacked or 

captured, but shall at all times be respected and protected on condition that their names and 

descriptions have been notified to the parties to the conflict ten days before those ships are 

employed.284 

The characteristics, which must appear in the notification, shall include registered gross 

tonnage, the length from stem to stern, and the number of masts and funnels.285

Many States have employed ships that are equipped or converted into hospital ships, 

 280 GWS COMMENTARY 282 (“Medical vehicles—like the material of fixed medical establishments—are to be 

subject to the laws of war. The captor may thus dispose of these vehicles, and may even use them as military 

transport. Naturally, in the latter case, the emblem must be at once removed.”).

281 GWS art. 35 (“The civilian personnel and all means of transport obtained by requisition shall be subject to the 

general rules of international law.”).

282 Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under 

the GC).

283 GWS COMMENTARY 284 (“The general rules of international law must needs apply to such persons and vehicles. 

These rules cannot be specified as they will vary with the evolution of international law. There are two possible 

cases to be considered. In the first place, the persons and vehicles may have been requisitioned in occupied territory 

by the Occupying Power; on being captured, they will be released automatically. On the other hand, the persons and 

vehicles may have been requisitioned by the belligerent within his own territory. On capture, the persons concerned 

will have the benefit of the provisions of the Fourth Geneva Convention of 1949. The disposal of the vehicles is 

governed by Articles 52 and 53 of the Hague Regulations.”).

284 GWS-SEA art. 22 (“Military hospital ships, that is to say, ships built or equipped by the Powers specially and 

solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in 

no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their 

names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.”).

285 GWS-SEA art. 22 (“The characteristics which must appear in the notification shall include registered gross 

tonnage, the length from stem to stern and the number of masts and funnels.”).
476

rather than building them specifically as hospital ships.286

7.12.1.2 Commissioned Civilian Hospital Ships. Hospital ships used by the 

National Red Cross Societies, by officially recognized relief societies, or by private persons shall 

have the same protection as military hospital ships and shall be exempt from capture, if the party

to the conflict on which they depend has given them an official commission and in so far as the 

provisions of Article 22 of the GWS-Sea concerning notification have been complied with.287 

These ships must be provided with certificates from the responsible authorities, stating that the 

vessels have been under their control while fitting out and on departure.288

7.12.1.3 Authorized Neutral Civilian Hospital Ships. Civilian hospital ships may 

also be sent from neutral countries.289

Hospital ships utilized by National Red Cross Societies, officially recognized relief 

societies, or private persons of neutral countries shall have the same protection as military 

hospital ships and shall be exempt from capture, on condition that they have placed themselves 

under the control of one of the parties to the conflict, with the previous consent of their own 

governments and with the authorization of the party to the conflict concerned, in so far as the 

provisions of Article 22 of the GWS-Sea concerning notification have been complied with.290

7.12.1.4 Size of Hospital Ships. The protection for military hospital ships, 

commissioned civilian hospital ships, and authorized neutral civilian hospital ships mentioned in 

 286 For example, Department of State, Diplomatic Note given to the Iraqi Chargé d’affairs in Washington, D.C., Jan. 

19, 1991, reprinted as Annex II to Thomas R. Pickering, Letter Dated 21 January 1991 From the Permanent 

Representative of the United States of America to the United Nations Addressed to President of the Security Council, 

U.N. Doc. S/22122 (Jan. 21, 1991) (“The two hospital ships are ‘USNS Mercy’ (T-AH 19) and ‘USNS Comfort’ (TAH 20). These two converted San Clemente class tankers, ex-SS Worth ex-SS Rose City, have identical 

characteristics: ... . Both ships are equipped specially and solely to assist, treat, and transport wounded, sick, and 

shipwrecked.”).

287 GWS-SEA art. 24 (“Hospital ships utilized by National Red Cross Societies, by officially recognized relief 

societies or by private persons shall have the same protection as military hospital ships and shall be exempt from 

capture, if the Party to the conflict on which they depend has given them an official commission and in so far as the 

provisions of Article 22 concerning notification have been complied with.”).

288 GWS-SEA art. 24 (“These ships must be provided with certificates from the responsible authorities, stating that 

the vessels have been under their control while fitting out and on departure.”).

289 For example, LIEUTENANT GENERAL STANLEY ROBERT LARSEN AND BRIGADIER GENERAL JAMES LAWTON 

COLLINS, JR., ALLIED PARTICIPATION IN VIETNAM 163-64 (1985) (“German economic and humanitarian aid, 

beginning in 1966, averaged about $7.5 million annually and more than 200 technical and medical personnel served 

in Vietnam. In 1966 the Federal Republic of Germany also contributed the 3,000-ton hospital ship S.S. Helgoland

to provide medical assistance to the civilian population. With eight doctors, thirty other medical personnel, and a 

130-bed capacity, the ship was initially stationed near Saigon where more than 21,000 out-patient treatments were 

given to approximately 6,700 patients from September 1966 until 30 June 1967. Over 850 major surgical cases 

were also treated. In October of 1967 the Helgoland shifted its operations to Da Nang.”).

290 GWS-SEA art. 25 (“Hospital ships utilized by National Red Cross Societies, officially recognized relief societies, 

or private persons of neutral countries shall have the same protection as military hospital ships and shall be exempt 

from capture, on condition that they have placed themselves under the control of one of the Parties to the conflict, 

with the previous consent of their own governments and with the authorization of the Party to the conflict 

concerned, in so far as the provisions of Article 22 concerning notification have been complied with.”).
477

Articles 22, 24, and 25 of the GWS-Sea, respectively, shall apply to hospital ships of any 

tonnage and to their lifeboats, wherever they are operating.291 Nevertheless, to ensure the 

maximum comfort and security, the parties to the conflict shall endeavor to use, for the transport 

of the wounded, sick, and shipwrecked over long distances and on the high seas, only hospital 

ships of more than 2,000 tons gross.

292 For example, U.S. military hospital ships have adhered 

to this recommendation by a large margin.293

7.12.1.5 Coastal Rescue Craft and Fixed Coastal Installations Used Exclusively 

by Them. Under the same conditions as those provided for in Articles 22 and 24 of the GWSSea, small craft employed by the State, or by the officially recognized lifeboat institutions for 

coastal rescue operations, shall also be respected and protected, so far as operational 

requirements permit.294 The same shall apply so far as possible to fixed coastal installations used 

exclusively by these craft for their humanitarian missions.295

The phrase, “so far as operational requirements permit,” has been used to acknowledge 

the risks incurred by such craft, because of their small size, in a zone of military operations.296

As provided in Articles 22 and 24 of the GWS-Sea, the names and descriptions of these 

small craft (including registered gross tonnage, the length from stem to stern, and the number of 

 291 GWS-SEA art. 26 (“The protection mentioned in Articles 22, 24 and 25 shall apply to hospital ships of any 

tonnage and to their lifeboats, wherever they are operating.”).

292 GWS-SEA art. 26 (“Nevertheless, to ensure the maximum comfort and security, the Parties to the conflict shall 

endeavor to utilize, for the transport of wounded, sick and shipwrecked over long distances and on the high seas, 

only hospital ships of over 2,000 tons gross.”).

293 For example, Department of State, Diplomatic Note given to the Iraqi Chargé d’affairs in Washington, D.C., Jan. 

19, 1991, reprinted as Annex II to Thomas R. Pickering, Letter Dated 21 January 1991 From the Permanent 

Representative of the United States of America to the United Nations Addressed to President of the Security Council, 

U.N. Doc. S/22122 (Jan. 21, 1991) (“The two hospital ships are ‘USNS Mercy’ (T-AH 19) and ‘USNS Comfort’ (TAH 20). These two converted San Clemente class tankers, ex-SS Worth ex-SS Rose City, have identical 

characteristics: tonnage 54,367, gross, 35,958 net; dimensions feet (meters) 894 length, 105.6 width 32.8 draft, i.e. 

depth, (272.6 x 32.2 x 10 meters); one mast forward, one funnel aft.”).

294 GWS-SEA art. 27 (“Under the same conditions as those provided for in Articles 22 and 24, small craft employed 

by the State or by the officially recognized lifeboat institutions for coastal rescue operations, shall also be respected 

and protected, so far as operational requirements permit.”).

295 GWS-SEA art. 27 (“The same shall apply so far as possible to fixed coastal installations used exclusively by these 

craft for their humanitarian missions.”).

296 See GWS-SEA COMMENTARY 172 (“Coastal rescue craft must be respected and protected in the same way as 

hospital ships, wherever they are operating. Article 30 refers to their use, and the commentary on that provision 

should be consulted. The protection is not absolute, however; it is afforded ‘so far as operational requirements 

permit’. This wording was used in order to take account of the risks incurred by such craft, because of their small 

size, in a zone of military operations. The limitation also has regard to past events and to the requirements of 

military security. Thus, although lifeboats may in practice be exposed to certain risks, a belligerent which has 

recognized them will never be allowed to make a deliberate attack on them, unless they have committed a grave 

breach of neutrality.”). See also II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 202 (“It 

was, however, understood that the protection promised to these low tonnage craft as well as to coastal installations 

could not be absolute. Such protection can only be afforded within the measure of operational necessities. A 

belligerent face to face with an oponent [sic] in a restricted maritime area would find it difficult to tolerate the traffic 

of a large number of very fast, small craft belonging to the adverse party.”).
478

masts and funnels) must be notified to the parties to the conflict ten days before such craft are 

employed.297 In addition, if the craft are not military craft belonging to a party to the conflict, 

they must be provided an official commission from the party to the conflict on which they 

depend and with certificates from the responsible authorities.298

7.12.2 Duties and Liabilities of Hospital Ships and Coastal Rescue Craft. The following 

duties and liabilities apply to hospital ships and coastal rescue craft.

7.12.2.1 Relief and Assistance Without Distinction of Nationality. The military 

hospital ships, commissioned civilian hospital ships, authorized neutral civilian hospital ships, 

and coastal rescue craft described in Articles 22, 24, 25, and 27 of the GWS-Sea, respectively,

shall afford relief and assistance to the wounded, sick, and shipwrecked without distinction of 

nationality.299 In other words, these vessels should help friendly and enemy personnel without 

distinction.300

7.12.2.2 No Use for Military Purposes. Parties to the GWS-Sea undertake not to 

use these vessels for any military purpose.301 These vessels must not participate in any way in 

the armed conflict or the war effort.302 For example, these vessels may not be used to relay 

military orders, transport able-bodied combatants or military equipment, or engage in 

reconnaissance.303 Such acts constitute acts harmful to the enemy that forfeit a vessel’s 

 297 Refer to § 7.12.1.1 (Military Hospital Ships).

298 Refer to § 7.12.1.2 (Commissioned Civilian Hospital Ships).

299 GWS-SEA art. 30 (“The vessels described in Articles 22, 24, 25 and 27 shall afford relief and assistance to the 

wounded, sick and shipwrecked without distinction of nationality.”).

300 For example, Vice Admiral Timothy Keating, News Briefing with Vice Admiral Timothy Keating, Apr. 12, 2003 

(“The United States Naval Ship Comfort, our hospital ship, is providing care not only to our wounded but to Iraqi 

civilians and Iraqi military. This morning, there are over 80 Iraqi enemy prisoners of war who are in a significantly 

serious medical condition that they have been airlifted out to the United States ship Comfort, which is on station in 

the north Arabian Gulf. Eighty Iraqi military personnel and 40 Iraqi civilians, displaced civilians, all of them in 

significant -- who have suffered injuries significantly enough that they are out on the Comfort.”).

301 GWS-SEA art. 30 (“The High Contracting Parties undertake not to use these vessels for any military purpose.”).

302 GWS-SEA COMMENTARY 179 (“Paragraph 2 [of Article 30 of the GWS-Sea] is self-explanatory. In return for 

the immunity which they enjoy, hospital ships must refrain from participating in any way in the armed conflict or 

war effort. This refers to acts even more serious than the ‘acts harmful to the enemy’ referred to in Articles 34 and 

35. What sanction is applied if a hospital ship commits a flagrant violation of its neutral status? It simply loses its 

right to protection.”).

303 For example, The “Orel,” reported in C. J. B. HURST AND F. E. BRAY, II RUSSIAN AND JAPANESE PRIZE CASES, 

VII INTERNATIONAL MILITARY LAW & HISTORY 354, 356-57 (1910) (“A hospital ship is only exempt from capture 

if she fulfils certain conditions and is engaged solely in the humane work of aiding the sick and wounded. That she 

is liable to capture, should she be used by the enemy for military purposes, is admitted by International Law, and is 

clearly laid down by the stipulations of the Hague Convention No. 3 of July 29th, 1899, for the adaptation to 

maritime warfare of the principles of the Geneva Convention of August 22nd, 1864. Although the ‘Orel’ had been 

lawfully equipped and due notification concerning her had been given by the Russian Government to the Japanese 

Government, yet her action in communicating the orders of the Commander-in-Chief of the Russian Pacific Second 

Squadron to other vessels during her eastward voyage with the squadron, and her attempt to carry persons in good 

health, i.e. the master and three others of British steamship captured by the Russian fleet, to Vladivostock, which is a 

naval port in enemy territory, were evidently acts in aid of the military operations of the enemy. Further, when the 

facts that she was instructed by the Russian squadron to purchase munitions of war, and that she occupied the 
479

protection from being made the object of attack and capture.

304

7.12.2.3 No Hampering the Movement of Combatants. Such vessels shall in no 

way hamper the movement of combatants.305 Any deliberate attempt by a hospital vessel to 

hamper the movement of combatants would constitute an act harmful to the enemy, although

inadvertent actions might also put those vessels at increased of harm (e.g., if enemy forces 

mistakenly believe that the vessel is acting deliberately to impede their movements).306

For example, hospital ships and coastal rescue craft belonging to one State must not 

interfere with opposing forces’ efforts to capture shipwrecked personnel, nor otherwise interfere 

with enemy military operations.307 Therefore, hospital ships and coastal rescue craft should not 

engage in such activities lest they forfeit the special protection afforded by the GWS-Sea. 

Special agreements between the opposing forces, however, may provide protection to ships

engaged in search, rescue, or other recovery missions.

 position usually assigned to a ship engaged in reconnaissance, are taken in consideration, it is reasonable to assume 

that she was constantly employed for military purposes on behalf of the Russian squadron. She is, therefore, not 

entitled to the exemptions laid down in The Hague Convention for the adaptation to maritime warfare of the 

principles of the Geneva Convention, and may be condemned according to International Law.”); John D. Long, 

Secretary of the Navy, General Orders No. 487, Apr. 27, 1898, reprinted in PAPERS RELATING TO THE FOREIGN 

RELATIONS OF THE UNITED STATES WITH THE ANNUAL MESSAGE OF THE PRESIDENT TRANSMITTED TO CONGRESS 

DECEMBER 5, 1898 1153 (1901) (“The Solace having been fitted and equipped by the Department as an ambulance 

ship for the naval service under the terms of the Geneva Convention [of 1868] is about to be assigned to service. ... 

The neutrality of the vessel will, under no circumstances, be changed, nor will any changes be made in her 

equipment without the authority of the Secretary of the Navy. No guns, ammunition, or articles contraband of war, 

except coal or stores necessary for the movement of the vessel, shall be placed on board; nor shall the vessel be used 

as a transport for the carrying of dispatches, or officers or men not sick or disabled, other than those belonging to the 

medical department.”).

304 Refer to § 7.12.6 (Forfeiture of Protection of Hospital Ships and Sick Bays).

305 GWS-SEA art. 30 (“Such vessels shall in no wise hamper the movements of the combatants.”).

306 GWS-SEA COMMENTARY 179-80 (“During an engagement, hospital ships must not hamper the movements of 

other vessels, and the authors might have added that they must not get in the line of fire. Any deliberate breach of 

the present provision would constitute an act harmful to the enemy, in the sense of Article 34, and the hospital ship 

committing it would then lose its right to protection under the Convention, according to the procedure laid down in 

that clause. If, on the other hand, it had not acted with intent, the case would then be very close to that dealt with in 

the following paragraph, which should be referred to. The hospital ship would not lose its right to protection, but it 

would in fact be deprived of security.”). Refer to § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat 

Operations).

307 SPAIGHT, AIR POWER AND WAR RIGHTS 361-62 (“German Red Cross rescue vessels.—In August a further 

attempt was made by the German Government to apply to the Red Cross to a purpose never contemplated in the 

Convention of 1929. It notified His Majesty’s Government, through the Swiss Government, that it proposed to 

make use of a number of vessels—sixty-four in all—marked with the Red Cross to rescue airmen who came down in 

the sea. His Majesty’s Government replied that the use of such vessels would interfere with the conduct of naval and 

military operations and could not be accepted. It then went on to refer to Germany’s attacks on British hospital 

ships and to the sinking of the Maid of Kent, Brighton and Paris. ‘His Majesty’s Government do not place their own 

boats employed in rescuing airmen under the Red Cross, even though they have on several occasions been 

deliberately attacked by the Germans while actually engaged in saving both British and German airmen, and they 

regard the claim of the German Government to invest rescue boats with the privileges of the Red Cross as wholly 

inadmissible.’ It may be added that such privileges were never claimed for the Walrus amphibians or the other 

R.A.F. machines employed in the Air/Sea Rescue Service.”).
480

7.12.2.4 Merchant Vessels Transformed Into Hospital Ships. Merchant vessels 

that have been transformed into hospital ships cannot be put to any other use throughout the 

duration of hostilities.308

7.12.2.5 Acceptance of the Risk From Proximity to Combat Operations. During

and after an engagement, such vessels will act at their own risk.309 A hospital ship or coastal 

rescue craft operating in proximity to combat operations assumes a certain risk of damage as a 

result of lawful enemy operations, including misidentification by enemy or friendly forces. 

Although the presence of hospital ships or coastal rescue craft does not serve to exempt nearby 

military objectives from attack due to the risk that the hospital ships or coastal rescue craft would 

be incidentally damaged, feasible precautions must be taken to reduce the risk of harm to 

hospital ships or coastal rescue craft.

310

7.12.2.6 Control and Search of Hospital Ships and Coastal Rescue Craft. The 

parties to the conflict shall have the right to control and search military hospital ships, 

commissioned civilian hospital ships, authorized neutral civilian hospital ships, and costal rescue 

craft mentioned in Articles 22, 24, 25, and 27 of the GWS-Sea, respectively.311 They may refuse 

assistance from these vessels, order them off, make them take a certain course, control the use of 

their wireless and other means of communication, and even detain them for a period not 

exceeding seven days from the time of interception, if the gravity of the circumstances so 

requires.312 For example, a belligerent may delay the passage of a hospital ship belonging to its 

adversary in order to avoid interference with its military operations.313

Parties to a conflict may put a commissioner temporarily on board such vessels whose 

sole task shall be to see that these orders are carried out.314

 308 GWS-SEA art. 33 (“Merchant vessels which have been transformed into hospital ships cannot be put to any other 

use throughout the duration of hostilities.”).

309 GWS-SEA art. 30 (“During and after an engagement, they will act at their own risk.”).

310 Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

311 GWS-SEA art. 31 (“The Parties to the conflict shall have the right to control and search the vessels mentioned in 

Articles 22, 24, 25 and 27.”).

312 GWS-SEA art. 31 (“They can refuse assistance from these vessels, order them off, make them take a certain 

course, control the use of their wireless and other means of communication, and even detain them for a period not 

exceeding seven days from the time of interception, if the gravity of the circumstances so requires.”).

313 For example, J.C. Massop, Hospital Ships in the Second World War, 24 BRITISH YEAR BOOK OF INTERNATIONAL 

LAW, 398, 405-06 (1947) (“The limitation imposed on the immunity of a hospital ship has by Article 12 is flanked 

by the right conferred on a belligerent by Article 4 to control the movements of a hospital ship on grounds of 

operational necessity. Such a situation arose at least twice during the 1939 war, when the German High Command 

wished to pass a hospital ship through the Allied patrol lines to a besieged part. As noted above, no obstacle was 

placed in the way of the voyages to Salonica, but when the Germans sought permission to send a hospital ship to 

Brest—then invested by Allied forces—it was apparent that it could not pass into the port without serious 

inconvenience to the attacking forces, and it was decided to refuse the request until the tactical situation had 

clarified.”).

314 GWS-SEA art. 31 (“They may put a commissioner temporarily on board whose sole task shall be to see that 

orders given in virtue of the provisions of the preceding paragraph are carried out.”).
481

As far as possible, the parties to the conflict shall enter in the log of the hospital ship, in a 

language he or she can understand, the orders they have given the captain of the vessel.315

Parties to the conflict may, either unilaterally or by particular agreements, put on board 

their ships neutral observers who shall verify the strict observation of the provisions contained in 

the GWS-Sea.316

7.12.2.7 Use of Secret Codes for Communication. The GWS-Sea provides that 

hospital ships may not possess or use a secret code for their wireless or other means of 

communication.317 The lack of secret codes for communication was intended to afford 

belligerents a guarantee that hospital ships were not improperly participating in hostilities.

318

This rule was formulated before developments in modern communications technology made 

encryption more common.319 Substantial practical difficulties have arisen in construing this rule

in a way that would prohibit any use of encrypted communications by hospital ships.

320

In light of the requirement for encryption in modern communications systems (e.g., 

satellite communications and video teleconference systems) and navigational technology (e.g., 

global positioning systems) and the goal of ensuring that hospital ships can effectively fulfill 

their humanitarian mission, the United States has employed hospital ships with the capability to 

 315 GWS-SEA art. 31 (“As far as possible, the Parties to the conflict shall enter in the log of the hospital ship, in a 

language he can understand, the orders they have given the captain of the vessel.”).

316 GWS-SEA art. 31 (“Parties to the conflict may, either unilaterally or by particular agreements, put on board their 

ships neutral observers who shall verify the strict observation of the provisions contained in the present 

Convention.”).

317 GWS-SEA art. 34 (“In particular, hospital ships may not possess or use a secret code for their wireless or other 

means of communication.”).

318 GWS-SEA COMMENTARY 193 (“The fact that the use of any secret code is prohibited affords a guarantee to the 

belligerents that hospital ships will not make improper use of their transmitting apparatus or any other means of 

communication. Hospital ships may only communicate in clear, or at least in a code which is universally known, 

and rightly so, for the spirit of the Geneva Conventions requires that there should be nothing secret in their 

behaviour vis-à-vis the enemy.”).

319 Richard J. Grunawalt, Hospital Ships in the War on Terror: Sanctuaries or Targets?, 58 NAVAL WAR COLLEGE 

REVIEW 108-09 (Winter 2005) (“The genesis of these constraints [on hospital ships and secret codes] involves a few 

isolated incidents many years ago when hospital ships were alleged to have used coded wireless communications 

capability to transmit operational intelligence, a ‘military purpose’ use inconsistent with their protected status and in 

violation of the 1899 Hague (III) Convention and the 1907 Hague (X) Convention. ... Obviously, the conventional

and customary rules mandating that hospital ships not be used for any military purpose other than the care and 

transport of the wounded, sick, and shipwrecked must remain inviolable. However, the likelihood that a hospital 

ship would be employed to collect and promulgate military intelligence in this age of satellite sensors, over-thehorizon radar, and fixed and mobile long-range hydrophones is extremely remote; it strains the imagination to 

conjure up a scenario where it would have any utility whatsoever.”).

320 For example, 2004 UK MANUAL ¶13.125 footnote 142 (“GC II, Art 34(2), states that hospital ships may not 

possess or use a secret code for their wireless or other means of communication. This general wording has caused 

difficulties. British forces in the Falklands conflict 1982 found that having to give orders to their hospital ships ‘in 

the clear’ risked giving away their own positions or likely movements. The rule stated in paragraph 13.128 is a 

legitimate interpretation of Art 34(2).”).
482

conduct encrypted communications.321 Other States have not objected to this practice.322 Some 

States have taken the same view.323 Scholarly commentators have also supported this view.

324

Hospital ships may not use encrypted communications for military purposes (e.g., 

transmitting intelligence data) or in any way that is harmful to an adversary.

325 Commissioners 

or neutral observers may be placed on board hospital ships to verify compliance with this rule.326

7.12.3 Distinctive Marking and Other Identification of Hospital Ships and Coastal Rescue 

Craft. The ships designated for protection by Articles 22, 24, 25, and 27 of the GWS-Sea (i.e., 

military hospital ships, commissioned civilian hospital ships, authorized neutral civilian hospital 

 321 For example, Michael Sirak, US Navy seeks to revise laws of war on hospital ships, Jane’s Defense Weekly 1-3 

(Aug. 19, 2003) (“The USN installed both encrypted communications devices ... on the USNS Comfort (T-AH 20), 

one of its two dedicated hospital ships, before it deployed in January to the Middle East theatre to support the USled Operation ‘Iraqi Freedom’, a US Department of Defense spokesman told Jane’s Defence Weekly. USN officials 

argue that the rules preventing hospital ships from using encrypted communications devices - contained principally 

in the Second Geneva Convention of 1949 - do not adequately account for technological advancements, such as 

satellite communications, which are today regarded as vital for these vessels to function effectively. ‘The way most 

naval warships communicate now is done on a level that even the most simple communications have some level of 

encryption,’ said one navy official. ‘Even the actual navigation of the ship can sometimes be in jeopardy if you 

cannot use these encrypted forms of communication.’ According to this official, the US position is that the 

international community could allow the capability for encrypted communications, while maintaining confidence 

among belligerents that a party is not exploiting it to gather and transmit intelligence on the enemy. A belligerent 

retains the right under international law to place an observer on the ship, or request a neutral observer, such as from 

the International Committee of the Red Cross (ICRC), to verify compliance, the official notes.”).

322 See Wolff Heintschel Von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE HANDBOOK OF 

INTERNATIONAL HUMANITARIAN LAW 463, 543 (¶1058) (3rd ed., 2013) (“Moreover, Article 34, para. 2, GC II can 

be considered to have become obsolete by the subsequent practice of the states parties. Today, hospital ships, like 

all warships and the majority of merchant vessels, communicate via satellite. The use of satellite communications 

implies encryption for both sending and receiving messages. The only two remaining hospital ships–the USS 

Comfort and the USS Mercy–do not dispose of traditional radio equipments [sic] but communicate over satellite 

communications only. This fact is known to the states parties to GC II. Still, there have been no protests so far. 

Hence, there are good reasons to believe that the other states parties have acquiesced in the US practice. Again, it 

should not be left of out of consideration that abandoning the prohibition of using encryption for emissions would 

better serve the humanitarian purposes hospital ships are to serve.”).

323 2006 AUSTRALIAN MANUAL ¶6.72 (“In order to fulfil their humanitarian mission, hospital ships should be 

permitted to use cryptographic equipment provided such equipment is not used to transmit intelligence data nor in 

any other way to acquire military advantage.”); 2004 UK MANUAL ¶13.125 (“In order to fulfil most effectively their 

humanitarian mission, hospital ships should be permitted to use cryptographic equipment. The equipment shall not 

be used in any circumstances to transmit intelligence data nor in any other way to acquire any military advantage.”).

324 See, e.g., Jane G. Dalton, Future Navies – Present Issues, 59 NAVAL WAR COLLEGE REVIEW 17, 26 (Winter 

2006) (“There is no need to belabor here the point that the prohibition on use of a ‘secret code’ by hospital ships is 

anachronistic, unrealistic, and unworkable in today’s high-technology environment, where satellite communications 

are both routinely encrypted and routinely employed by military systems.”); Louise Doswald-Beck, Vessels, Aircraft 

and Persons Entitled to Protection During Armed Conflicts at Sea, 65 BRITISH YEARBOOK OF INTERNATIONAL LAW

211, 219 (1994) (“The participants working on the San Remo Manual were of the opinion that hospital ships should 

be allowed to use cryptographic equipment, with a specification that it must not be used for transmitting intelligence 

or put to any other use incompatible with the humanitarian mission of the hospital ship. This could be verified by a 

qualified neutral observer on board as foreseen in Article 31(4) of GC2.”).

325 Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.10.3.1 (Acts Harmful to the Enemy).

326 Refer to § 7.12.2.6 (Control and Search of Hospital Ships and Coastal Rescue Craft).
483

ships, and coastal rescue craft, respectively) shall be distinctively marked as follows:

• all exterior surfaces shall be white; and 

• one or more dark red crosses, as large as possible, shall be painted and displayed on each 

side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible 

visibility from the sea and from the air.327

7.12.3.1 Rules for Flying the National Flag, the Flag of the Party to the Conflict, 

and the Distinctive Emblem Flag. All hospital ships must make themselves known by hoisting 

their national flag and, further, if they belong to a neutral State, the flag of the party to the 

conflict whose direction they have accepted.328 A white flag with a red cross shall be flown at 

the mainmast as high as possible.329

Hospital ships that, in accordance with Article 31 of the GWS-Sea, are provisionally 

detained by the enemy, must haul down the flag of the party to the conflict in whose service they 

are or whose direction they have accepted.330

Coastal lifeboats, if they continue to operate with the consent of the Occupying Power

from a base that is occupied, may be allowed, when away from their base, to continue to fly their 

own national colors along with a flag carrying a red cross on a white ground, subject to prior 

notification to all the parties to the conflict concerned.331

7.12.3.2 Lifeboats and All Small Craft Used by the Medical Service. Lifeboats of 

hospital ships, coastal lifeboats, and all small craft used by the Medical Service shall be painted 

white with dark red crosses prominently displayed and shall, in general, comply with the 

identification system prescribed above for hospital ships.332 

7.12.3.3 Night-Time Identification Measures. The above-mentioned ships and 

 327 GWS-SEA art. 43 (“The ships designated in Articles 22, 24, 25 and 27 shall be distinctively marked as follows: 

(a) All exterior surfaces shall be white. (b) One or more dark red crosses, as large as possible, shall be painted and 

displayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible 

visibility from the sea and from the air.”).

328 GWS-SEA art. 43 (“All hospital ships shall make themselves known by hoisting their national flag and further, if 

they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted.”).

329 GWS-SEA art. 43 (“A white flag with a red cross shall be flown at the mainmast as high as possible.”).

330 GWS-SEA art. 43 (“Hospital ships which, in accordance with Article 31, are provisionally detained by the enemy, 

must haul down the flag of the Party to the conflict in whose service they are or whose direction they have 

accepted.”).

331 GWS-SEA art. 43 (“Coastal lifeboats, if they continue to operate with the consent of the Occupying Power from a 

base which is occupied, may be allowed, when away from their base, to continue to fly their own national colours 

along with a flag carrying a red cross on a white ground, subject to prior notification to all the Parties to the conflict 

concerned.”).

332 GWS-SEA art. 43 (“Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service 

shall be painted white with dark red crosses prominently displayed and shall, in general, comply with the 

identification system prescribed above for hospital ships.”).
484

craft, which may wish to ensure by night and in times of reduced visibility the protection to 

which they are entitled, must, subject to the assent of the party to the conflict under whose power 

they are, take the necessary measures to render their painting and distinctive emblems 

sufficiently apparent.333

7.12.3.4 Other Emblems Instead of the Red Cross. All the provisions in Article 

43 of the GWS-Sea relating to the red cross apply equally to the other emblems mentioned in 

Article 41 of the GWS-Sea.334

The distinctive emblem of the red crystal also may be used for the same purposes as the 

red cross.335

7.12.3.5 Agreements to Facilitate the Identification of Hospital Ships. Parties to 

the conflict shall at all times endeavor to conclude mutual agreements in order to use the most

modern methods available to facilitate the identification of hospital ships.336

7.12.4 Rights and Privileges of Hospital Ships and Coastal Rescue Craft. Military 

hospital ships, commissioned civilian hospital ships, and authorized neutral civilian hospital 

ships that meet the applicable requirements shall be respected and protected and are exempt from 

capture. Coastal rescue craft shall also be respected and protected so far as operational 

requirements permit.

In addition, the following protections apply:

7.12.4.1 Protection From Attacks From Land. Hospital ships entitled to the 

protection of the GWS-Sea shall not be attacked from land.337

7.12.4.2 Authority to Leave Ports Held by the Enemy. Any hospital ship in a port 

that falls into the hands of the enemy shall be authorized to leave that port.338

7.12.4.3 Relief From Taxation in Time of War. In time of war, military hospital 

ships, commissioned civilian hospital ships, and authorized neutral civilian hospital ships are 

 333 GWS-SEA art. 43 (“The above-mentioned ships and craft, which may wish to ensure by night and in times of 

reduced visibility the protection to which they are entitled, must, subject to the assent of the Party to the conflict 

under whose power they are, take the necessary measures to render their painting and distinctive emblems 

sufficiently apparent.”).

334 GWS-SEA art. 43 (“All the provisions in this Article relating to the red cross shall apply equally to the other 

emblems mentioned in Article 41.”).

335 Refer to § 7.15.1.3 (Red Crystal).

336 GWS-SEA art. 43 (“Parties to the conflict shall at all times endeavour to conclude mutual agreements in order to 

use the most modern methods available to facilitate the identification of hospital ships.”).

337 GWS art. 20 (“Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of the 

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, shall not be 

attacked from the land.”).

338 GWS-SEA art. 29 (“Any hospital ship in a port which falls into the hands of the enemy shall be authorized to 

leave the said port.”).
485

exempt from all dues and taxes imposed for the benefit of the State in the ports of the Parties to a

particular 1904 Hague treaty. Article 1 of this 1904 Hague treaty provides that certain categories 

of hospital ships listed in an 1899 Hague treaty receive this benefit.339 These categories of 

hospital ships listed in the 1899 Hague treaty are the same categories of hospital ships that are 

used in the GWS-Sea.340 Some States may be Parties to the GWS-Sea but not to the 1904 Hague 

treaty that creates this exemption.

7.12.4.4 Stay in Neutral Ports. Vessels described in Articles 22, 24, 25, and 27 of 

the GWS-Sea (i.e., military hospital ships, commissioned civilian hospital ships, authorized 

neutral civilian hospital ships, and coastal rescue craft, respectively), are not classed as warships 

as regards their stay in a neutral port.341 Thus, these vessels are not subject to the restrictions 

that belligerent warships staying in a neutral port are subject to by neutral Powers.

342

7.12.5 Protection of Sick-Bays in Warships. Should fighting occur on board a warship, 

the sick-bays shall be respected and spared as far as possible.343

7.12.5.1 Use of Seized Sick-Bays and Their Equipment. Sick-bays and their 

equipment shall remain subject to the laws of warfare, but may not be diverted from their 

purpose so long as they are required for the wounded and sick.344 Nevertheless, the commander 

into whose power they have fallen may, after ensuring the proper care of the wounded and sick 

who are accommodated therein, apply them to other purposes in case of urgent military 

 339 Convention Regarding Hospital Ships, art. 1, Dec. 21, 1904, 35 STAT. 1854, 1857 (“Hospital ships, concerning 

which the conditions set forth in Articles 1, 2 & 3 of the Convention concluded at The Hague on July 29, 1899, for 

the adaptation to Maritime Warfare of the principles of the Geneva Convention of August 22, 1864, are fulfilled 

shall be exempted, in time of war, from all dues and taxes imposed on vessels for the benefit of the State, in the 

ports of the Contracting Parties.”).

340 See Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 

22, 1864, arts. 1-3, Jul. 29, 1899, 32 STAT. 1827, 1831-32 (“Article 1 Military hospital ships, that is to say, ships 

constructed or assigned by States specially and solely for the purpose of assisting the wounded, sick or shipwrecked, 

and the names of which shall have been communicated to the belligerent Powers at the beginning or during the 

course of hostilities, and in any case before they are employed, shall be respected and cannot be captured while 

hostilities last. ... Article 2 Hospital ships, equipped wholly or in part at the cost of private individuals or officially 

recognized relief Societies, shall likewise be respected and exempt from capture, provided the belligerent Power to 

whom they belong has given them an official commission and has notified their names to the hostile Power at the 

commencement of or during hostilities, and in any case before they are employed. ... Article 3 Hospital-ships, 

equipped wholly or in part at the cost of private individuals or officially recognized Societies of neutral countries, 

shall be respected and exempt from capture, if the neutral Power to whom they belong has given them an official 

commission and notified their names to the belligerent powers at the commencement of or during hostilities, and in 

any case before they are employed.”).

341 GWS-SEA art. 32 (“Vessels described in Articles 22, 24, 25 and 27 are not classed as warships as regards their 

stay in a neutral port.”).

342 Refer to § 15.9 (Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal Waters).

343 GWS-SEA art. 28 (“Should fighting occur on board a warship, the sick-bays shall be respected and spared as far 

as possible.”).

344 GWS-SEA art. 28 (“Sick-bays and their equipment shall remain subject to the laws of warfare, but may not be 

diverted from their purpose so long as they are required for the wounded and sick.”).
486

necessity.345

7.12.6 Forfeiture of Protection of Hospital Ships and Sick Bays. The protection to which 

hospital ships and sick-bays are entitled shall not cease unless the vessels are used to commit, 

outside their humanitarian duties, acts harmful to the enemy.346 In particular, hospital ships and 

coastal rescue craft may not be used for military purposes nor to hamper the movements of 

combatants.347 

7.12.6.1 Due Warning Before Cessation of Protection. Protection may, however, 

cease only after due warning has been given, naming in all appropriate cases a reasonable time 

limit, and after such warning has remained unheeded.348

The obligation to refrain from use of force against a medical vessel or sick-bay acting in 

violation of its mission and protected status without due warning does not prohibit the exercise 

of the right of self-defense. There may be cases in which, in the exercise of the right of selfdefense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces 

receiving heavy fire may exercise their right of self-defense and return fire. Such use of force in 

self-defense must also be proportionate.349

7.12.6.2 Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vessels 

of Their Protection. The following conditions shall not be considered as depriving hospital ships 

or sick-bays of vessels of the protection due to them:

• the fact that the crews of ships or sick-bays are armed for the maintenance of order, for 

their own defense, or for the defense of the sick and wounded;

• the presence on board of apparatus exclusively intended to facilitate navigation or 

communication;

• the discovery on board hospital ships or in sick-bays of portable arms and ammunition 

taken from the wounded, sick, and shipwrecked, and not yet handed over to the proper 

service;

• the fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the 

crews extend to the care of wounded, sick, or shipwrecked civilians; and

• the transport of equipment and of personnel intended exclusively for medical duties, over 

 345 GWS-SEA art. 28 (“Nevertheless, the commander into whose power they have fallen may, after ensuring the 

proper care of the wounded and sick who are accommodated therein, apply them to other purposes in case of urgent 

military necessity.”).

346 GWS-SEA art. 34 (“The protection to which hospital ships and sick-bays are entitled shall not cease unless they 

are used to commit, outside their humanitarian duties, acts harmful to the enemy.”).

347 Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.12.2.3 (No Hampering the Movement of Combatants).

348 GWS-SEA art. 34 (“Protection may, however, cease only after due warning has been given, naming in all 

appropriate cases a reasonable time limit, and after such warning has remained unheeded.”).

349 Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).
487

and above the normal requirements.350

7.12.6.3 Arming of Hospital Ships and Equipping Them With Defensive Devices. 

The GWS-Sea contemplates that the crews of hospital ships may be armed and does not 

specifically restrict the weapons that they may have.

The crews of hospital ships may be armed to the extent necessary to enable them to 

defend themselves or their patients against unlawful attacks. Such arming is viewed as 

consistent with the ship’s humanitarian purpose and the crew’s duty to safeguard the wounded 

and sick. For example, crews of hospital ships may be equipped with weapons to meet internal 

security needs, to maintain discipline, to protect staff and patients from criminal threats of 

violence, and to prevent the theft of medical supplies. The type of weapon that is necessary for 

defensive or other legitimate purposes may depend on the nature of the threats against the 

hospital ship.

351 For example, hospital ships may be armed with defensive weapon systems,

including when necessary certain crew-served weapons, as a prudent anti-terrorism/force 

protection (AT/FP) measure to defend against small boat attacks.352 On the other hand, crews of 

hospital ships should not be armed such that they would appear to an enemy military force to 

present an offensive threat. 

Equipping hospital ships with other defensive devices – such as chaff for protection 

against over-the-horizon weapons or similar threats – is not prohibited.353 However, such 

devices, like weapons, must not be used to commit acts harmful to enemy military forces acting 

in conformity with the law of war.354

 350 GWS-SEA art. 35 (“The following conditions shall not be considered as depriving hospital ships or sick-bays of 

vessels of the protection due to them: (1) The fact that the crews of ships or sick-bays are armed for the 

maintenance of order, for their own defence or that of the sick and wounded. (2) The presence on board of 

apparatus exclusively intended to facilitate navigation or communication. (3) The discovery on board hospital ships 

or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed 

to the proper service. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the 

crews extend to the care of wounded, sick or shipwrecked civilians. (5) The transport of equipment and of personnel 

intended exclusively for medical duties, over and above the normal requirements.”).

351 For example, Michael Sirak, US Navy seeks to revise laws of war on hospital ships, Jane’s Defense Weekly 1-3 

(Aug. 19, 2003) (“The USN installed both encrypted communications devices and 50-cal machine guns on the 

USNS Comfort (T-AH 20), one of its two dedicated hospital ships, before it deployed in January to the Middle East 

theatre to support the US-led Operation ‘Iraqi Freedom’, a US Department of Defense spokesman told Jane’s 

Defence Weekly. ... Furthermore, USN officials say the small arms currently allowed on hospital ships, such as 

sidearms and rifles, are not enough to thwart an attack by a non-state actor like a terrorist group. They say the 

limited protection afforded to these vessels under international law would be unlikely to deter terrorists and, unlike 

lawful belligerents, terrorists would consider them an attractive ‘soft’ target. Therefore, they argue that it is 

necessary to place ‘crew-served’ weapons like 30-cal and 50-cal machine guns on them, exclusively for defence, to 

fend off attacks by swarming, heavily armed speed boats or suicide craft.”).

352 Jane G. Dalton, Future Navies – Present Issues, 59 NAVAL WAR COLLEGE REVIEW 17, 27 (Winter 2006) (noting 

that a problem “facing hospital ships is the need to arm them for force protection against USS Cole-type attacks” and 

that “chaff and flares [would be] ineffective against a determined suicide attack like that launched against Cole,”).

353 See 2004 UK MANUAL ¶13.124 (“Hospital ships may be equipped with purely deflective means of defence, such 

as chaff and flares.”).

354 Refer to § 7.12.6 (Forfeiture of Protection of Hospital Ships and Sick Bays).
488

7.13 CHARTERED MEDICAL TRANSPORT SHIPS

Ships chartered for medical transport purposes shall be authorized to transport equipment 

exclusively intended for the treatment of wounded and sick members of armed forces or for the 

prevention of disease, provided that the particulars regarding their voyage have been notified to 

the adverse Power and approved by the latter.355 The adverse Power shall preserve the right to 

board the carrier ships, but not to capture them or seize the equipment carried.356

7.13.1 Agreement to Place Neutral Observers on Chartered Medical Transports. By 

agreement among the parties to the conflict, neutral observers may be placed on board such ships 

to verify the equipment carried.357 For this purpose, free access to the equipment shall be 

given.358

7.14 MILITARY MEDICAL AIRCRAFT

Medical aircraft – that is to say, aircraft exclusively employed for the removal of the 

wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment –

shall not be attacked, but shall be respected by the belligerents, while flying at heights and times, 

and on routes, specifically agreed upon by the belligerents concerned.359 

7.14.1 Medical Aircraft Not Flying at Heights and Times and on Routes Specifically 

Agreed Upon by Belligerents Concerned. The use of protected medical aircraft generally 

depends on an agreement between the belligerents.360 

However, known medical aircraft, when performing their humanitarian functions, must 

 355 GWS-SEA art. 38 (“Ships chartered for that purpose shall be authorized to transport equipment exclusively 

intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided 

that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter.”).

356 GWS-SEA art. 38 (“The adverse Power shall preserve the right to board the carrier ships, but not to capture them 

or seize the equipment carried.”).

357 GWS-SEA art. 38 (“By agreement amongst the Parties to the conflict, neutral observers may be placed on board 

such ships to verify the equipment carried.”).

358 GWS-SEA art. 38 (“For this purpose, free access to the equipment shall be given.”).

359 GWS art. 36 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick 

and for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the 

belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents 

concerned.”); GWS-SEA art. 39 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of 

the wounded, sick and shipwrecked, and for the transport of medical personnel and equipment, may not be the object 

of attack, but shall be respected by the Parties to the conflict, while flying at heights, at times and on routes 

specifically agreed upon between the Parties to the conflict concerned.”).

360 GWS-SEA COMMENTARY 216-17 (“The solution adopted makes any future use of protected medical aircraft 

dependent on the conclusion of an agreement between the belligerents. As it will be a matter of fixing routes and 

times of flights, such agreements will no doubt usually be made for each specific case and by a simple exchange of 

communications between the military commands. But there might also be an agreement of longer duration. If there 

is no agreement, belligerents will be able to use medical aircraft only at their own risk. It is, however, to be hoped 

that in such cases the enemy will not resort to extreme measures until he has exhausted all other means of control at 

his disposal.”).
489

be respected and protected.361 Such aircraft does not constitute a military objective that is liable 

to being made the object of attack.362 Thus, even if not flying pursuant to an agreement, such 

aircraft shall not be deliberately attacked or fired upon, if identified as protected medical aircraft. 

For example, if there is no agreement and a military force happens upon a medical aircraft

belonging to an enemy State, the aircraft must not be made the object of attack until all other 

means of control (such as directing the aircraft to land and submit to search) have been 

exhausted.363 

A medical aircraft that is not flying pursuant to a special agreement that seeks to claim 

protection as medical aircraft shall make every effort to identify itself and to inform the enemy 

State of its status and its operations, such as its flight times and routes.

364 For example, an 

unknown aircraft within a theater of military operations would often be reasonably presumed to 

be a military objective, and the aircraft must take affirmative steps to rebut this presumption.365 

In order to maintain its entitlement to protection, such aircraft must obey the directions of the 

enemy State, such as directions to land and to submit to search.

7.14.2 Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked, 

and for the Transport of Medical Personnel and Equipment. In order to receive protection as 

medical aircraft, the aircraft must be exclusively employed for the removal of wounded, sick, or 

shipwrecked combatants and for the transport of medical personnel and equipment.

For example, such aircraft, while designated or operating as medical aircraft, may not be 

used also for military purposes, such as to transport able-bodied combatants or to carry 

 361 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 423-24 (1987) (“We 

support the principle that known medical aircraft be respected and protected when performing their humanitarian 

functions. That is a rather general statement of what is reflected in many, but not all, aspects of the detailed rules in 

articles 24 through 31, which include some of the more useful innovations in the Protocol.”).

362 Refer to § 5.6.4.1 (Military Equipment and Bases).

363 1976 AIR FORCE PAMPHLET 110-31 (“Generally, a medical aircraft (identified as such) should not be attacked 

unless under the circumstances at the time it represents an immediate military threat and other methods of control 

are not available.”).

364 Consider AP I art. 27(2) (“A medical aircraft which flies over an area physically controlled by an adverse Party 

without, or in deviation from the terms of, an agreement provided for in paragraph 1, either through navigational 

error or because of an emergency affecting the safety of the flight, shall make every effort to identify itself and to 

inform the adverse Party of the circumstances. As soon as such medical aircraft has been recognized by the adverse 

Party, that Party shall make all reasonable efforts to give the order to land or to alight on water, referred to in Article 

30, paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft 

time for compliance, before resorting to an attack against the aircraft”).

365 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 155 (AP I art. 27, ¶2.2) (“The question then arises whether an aircraft 

which is operating without such agreement (or in deviation from the terms of such agreement) is a legitimate target, 

a military objective within the meaning of Art. 52, para. 2. Article 27, para. 2, is based on the (correct) assumption 

that it is, even if it is a true medical aircraft. ... An aircraft flying over areas controlled by an adverse Party is, in 

case of doubt, a military objective. Anything else is unrealistic.”).
490

ammunition to combat forces.366

7.14.2.1 Conversion of Aircraft To and From Use Under a Special Agreement for 

Medical Purposes. If medical aircraft are flying pursuant to an agreement, it is not necessary 

that the aircraft should have been specially built and equipped for medical purposes.367 There is 

no objection to converting ordinary aircraft into medical aircraft for use under a special 

agreement or to using medical aircraft that have been used under a special agreement for other 

purposes, provided the distinctive markings are removed.368

7.14.2.2 Search, Rescue, or Other Recovery Excluded. Medical aircraft may 

engage in the removal of wounded, sick, or shipwrecked combatants. However, medical aircraft 

may neither prevent the capture of combatants by enemy military forces nor otherwise interfere 

with enemy military operations.369 Therefore, medical aircraft do not include combat search and 

rescue aircraft, and medical aircraft should not engage in such activities lest they forfeit the 

special protection afforded by the GWS or GWS-Sea.370 Special agreements between the 

opposing forces, however, may provide protection to aircraft engaged in search, rescue, or other 

recovery missions.

7.14.3 Markings on Medical Aircraft. Medical aircraft shall bear, clearly marked, the 

distinctive emblem (prescribed in Article 38 of the GWS and Article 41 of the GWS-Sea), 

together with their national colors, on their lower, upper, and lateral surfaces.371 

 366 Compare § 7.12.2.2 (No Use for Military Purposes). For example, First Lieutenant Edward R. Cummings, The 

Juridical Status of Medical Aircraft Under the Conventional Laws of War, 66 MILITARY LAW REVIEW 105, 115 

(1974) (“It has been said that during the Second World War ‘Article 18 [of the 1929 GWS] was ... more or less a 

dead letter,’ even though air evacuation flights were used extensively during the war. One and a half million 

Americans alone were evacuated by air during the war. The United States primarily used aircraft that were not 

devoted exclusively to the care or the wounded and sick. It was able to do so because of its air supremacy. Even 

though these aircraft would not have been entitled to juridical protection under the 1929 Geneva Convention, none 

of the aircraft used to convey casualties ‘suffered any mishap during the war.’”) (ellipsis in original).

367 1956 FM 27-10 (Change No. 1 1976) ¶237b (“It is not necessary that the aircraft should have been specially built 

and equipped for medical purposes.”).

368 1956 FM 27-10 (Change No. 1 1976) ¶237b (“There is no objection to converting ordinary aircraft into medical 

aircraft or to using former medical aircraft for other purposes, provided the distinctive markings are removed.”).

369 Compare § 7.12.2.3 (No Hampering the Movement of Combatants); § 4.9.2.3 (Exclusively Engaged in 

Humanitarian Duties).

370 XI OFFICIAL RECORDS OF THE CDDH 503 (CDDH/II/SR.45, ¶10) (“Mr. SOLF (United States of America) 

recalled that 105 years previously, 160 wounded soldiers of France had been successfully evacuated from besieged 

Paris by balloon, thus for the first time making rapid medical evacuation by air a reality. It was an undisputed 

medical fact that the sooner a badly wounded person came under a surgeon’s care, the better were his chances of 

recovery and survival. It was also recognized as an undisputed military fact that medical aircraft posed a security 

threat if they were used for military reconnaissance. Accordingly, throughout the history of the development of 

medical aircraft, their role in the search of the battlefield for wounded had been restricted.”). Consider AP I art. 

28(4) (“While carrying out the flights referred to in Articles 26 and 27, medical aircraft shall not, except by prior 

agreement with the adverse Party, be used to search for the wounded, sick and shipwrecked.”).

371 GWS art. 36 (“They shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with 

their national colours, on their lower, upper and lateral surfaces.”); GWS-SEA art. 39 (“They shall be clearly marked 
491

They shall be provided with any other markings or means of identification that may be 

agreed upon between the belligerents upon the outbreak or during the course of hostilities.372

7.14.4 Prohibition on Flights Over Enemy or Enemy-Occupied Territory. Unless 

otherwise agreed, flights over enemy or enemy-occupied territory are prohibited.373 If flying 

pursuant to an agreement, however, medical aircraft are to receive protection when flying over 

enemy or enemy-occupied territory.374

7.14.5 Landing and Inspection of Military Medical Aircraft. Medical aircraft shall obey 

every summons to land (including water landings if the aircraft is equipped for them).375 In the 

event of a landing thus imposed, the aircraft with its occupants may continue its flight after 

examination, if any.376

7.14.5.1 Treatment of Personnel in the Event of Involuntary Landing in Enemy or 

Enemy-Occupied Territory. In the event of an involuntary landing in enemy or enemy-occupied 

territory (including a water landing), the wounded and sick, as well as the crew of the aircraft,

shall be POWs.377 The medical personnel shall be treated according to Article 24 and the 

Articles following of the GWS, and Articles 36 and 37 of the GWS-Sea.

378

7.14.6 Belligerent Military Medical Aircraft in Neutral Territory. Subject to conditions 

set by the neutral Powers, medical aircraft of parties to the conflict may fly over the territory of 

neutral Powers, land on it in case of necessity, or use it as a port of call.379 They shall give 

 

with the distinctive emblem prescribed in Article 41, together with their national colours, on their lower, upper and 

lateral surfaces.”).

372 GWS art. 36 (“They shall be provided with any other markings or means of identification that may be agreed 

upon between the belligerents upon the outbreak or during the course of hostilities.”); GWS-SEA art. 39 (“They shall 

be provided with any other markings or means of identification which may be agreed upon between the Parties to 

the conflict upon the outbreak or during the course of hostilities.”).

373 GWS art. 36 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”); GWSSEA art. 39 (same).

374 Consider AP I art. 27 (1) (“The medical aircraft of a Party to the conflict shall continue to be protected while 

flying over land or sea areas physically controlled by an adverse Party, provided that prior agreement to such flights 

has been obtained from the competent authority of that adverse Party.”).

375 GWS art. 36 (“Medical aircraft shall obey every summons to land.”); GWS-SEA art. 39 (“Medical aircraft shall 

obey every summons to alight on land or water.”).

376 GWS art. 36 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after 

examination, if any.”); GWS-SEA art. 39 (“In the event of having thus to alight, the aircraft with its occupants may 

continue its flight after examination, if any.”).

377 GWS art. 36 (“In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and 

sick, as well as the crew of the aircraft shall be prisoners of war.”); GWS-SEA art. 39 (“In the event of alighting 

involuntarily on land or water in enemy or enemy occupied territory, the wounded, sick and shipwrecked, as well as 

the crew of the aircraft shall be prisoners of war.”).

378 GWS art. 36 (“The medical personnel shall be treated according to Article 24 and the Articles following.”); 

GWS-SEA art. 39 (“The medical personnel shall be treated according to Articles 36 and 37.”).

379 GWS art. 37 (“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may 

fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.”); GWS-SEA art. 40 
492

neutral Powers prior notice of their passage over the said territory, and obey every summons to 

alight, on land or water.380 They will be immune from attack only when flying on routes, at 

heights, and at times specifically agreed upon between the parties to the conflict and the neutral 

Power concerned.381

7.14.6.1 Conditions Set by Neutral Powers. The neutral Powers may, however, 

place conditions or restrictions on the passage or landing of medical aircraft on their territory.382 

Such possible conditions or restrictions shall be applied equally to all parties to the conflict.383

7.14.6.2 Detention of the Wounded, Sick, or Shipwrecked. Unless otherwise 

agreed between the neutral Powers and the parties to the conflict, the wounded, sick, or 

shipwrecked who are disembarked with the consent of the local authorities on neutral territory by 

medical aircraft shall be detained by the neutral Power, where so required by international law, 

in such a manner that they cannot again take part in operations of war.384 The cost of their 

accommodation and internment shall be borne by the Power on which they depend.385

7.15 DISPLAY OF THE DISTINCTIVE EMBLEM TO FACILITATE IDENTIFICATION

The GWS and GWS-Sea contemplate that the distinctive emblem, usually a red cross on 

a white background, will be used to facilitate the identification of the persons and objects

protected by the GWS and GWS-Sea.

386 It helps identify protected persons and objects (e.g., 

medical and religious personnel, medical transports, and medical facilities), but does not itself 

confer on them, or by its absence deprive them of, legal protection. The use of the distinctive 

emblem to facilitate protection is to take place under the direction of the competent military 

 

(“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the 

territory of neutral Powers, land thereon in case of necessity, or use it as a port of call.”).

380 GWS art. 37 (“They shall give the neutral Powers previous notice of their passage over the said territory and 

obey all summons to alight, on land or water.”); GWS-SEA art. 40 (“They shall give neutral Powers prior notice of 

their passage over the said territory, and obey every summons to alight, on land or water.”).

381 GWS art. 37 (“They will be immune from attack only when flying on routes, at heights and at times specifically 

agreed upon between the Parties to the conflict and the neutral Power concerned.”); GWS-SEA art. 40 (same).

382 GWS art. 37 (“The neutral Powers may, however, place conditions or restrictions on the passage or landing of 

medical aircraft on their territory.”); GWS-SEA art. 40 (same).

383 GWS art. 37 (“Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.”); 

GWS-SEA art. 40 (same).

384 GWS art. 37 (“Unless agreed otherwise between the neutral Power and the Parties to the conflict, the wounded 

and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall 

be detained by the neutral Power, where so required by international law, in such a manner that they cannot again 

take part in operations of war.”); GWS-SEA art. 40 (“Unless otherwise agreed between the neutral Powers and the 

Parties to the conflict, the wounded, sick or shipwrecked who are disembarked with the consent of the local 

authorities on neutral territory by medical aircraft shall be detained by the neutral Power, where so required by 

international law, in such a manner that they cannot again take part in operations of war.”).

385 GWS art. 37 (“The cost of their accommodation and internment shall be borne by the Power on which they 

depend.”); GWS-SEA art. 40 (same).

386 See GWS-SEA COMMENTARY 235 (“In principle, a red cross on a white ground should be displayed on the 

buildings, persons, vehicles and objects protected by the Convention.”).
493

authority. The misuse of the distinctive emblem is prohibited.

7.15.1 The Distinctive Emblems: Red Cross, Crescent, and Crystal. To facilitate visual 

identification of medical and religious personnel, and medical units, facilities, transports, and 

equipment, four distinctive emblems have been recognized in treaties to which the United States 

is a Party. As displayed below, they are 1) a red cross; 2) a red crescent; 3) a red crystal; and 4) 

a red lion and sun. Each is displayed on a white background.

The Distinctive Emblems

Red Cross Red Crescent Red Crystal Red Lion and Sun (withdrawn)

7.15.1.1 Red Cross. “As a compliment to Switzerland,” the heraldic emblem of 

the red cross on a white ground formed by reversing the Federal colors is retained as the emblem 

and distinctive sign of the Medical Services of armed forces.387 The explanation that the red 

cross is used as a compliment to Switzerland was added to emphasize that the red cross is not 

intended to have religious significance.388 The red cross has long been used to identify medical 

personnel during armed conflict.389

7.15.1.2 Red Crescent, and Red Lion and Sun. In the case of countries that 

already use, in place of the red cross, the emblem of the red crescent or the emblem of the red 

lion and sun on a white ground, those emblems are also recognized by the terms of the GWS and 

GWS-Sea.390

 387 GWS art. 38 (“As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground formed 

by reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Services of armed 

forces.”).

388 GWS COMMENTARY 303 (“The phrase stating that the red cross emblem was formed, as a compliment to 

Switzerland, by reversing the Federal colours was introduced into the Geneva Convention by the Diplomatic 

Conference of 1906. ‘This tribute in 1906’, wrote Paul Des Gouttes, the eminent commentator on the Geneva 

Convention, ‘had also another object: to confirm officially and explicitly that the emblem had no religious 

significance’.”). See also AP III preamble (“Stressing that the distinctive emblems are not intended to have any 

religious, ethnic, racial, regional or political significance,”).

389 See, e.g., Convention for the Amelioration of the Wounded in Armies in the Field, art. 7, Aug. 22, 1864, 22 

STAT. 940, 944 (“A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuations. It 

must, on every occasion, be accompanied by the national flag. An arm-badge (brassard) shall also be allowed for 

individuals neutralized, but the delivery thereof shall be left to military authority. The flag and arm-badge shall bear 

a red cross on a white ground.”).

390 GWS art. 38 (“Nevertheless, in the case of countries which already use as emblem, in place of the red cross, the 

red crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the 
494

7.15.1.3 Red Crystal. AP III recognizes an additional distinctive emblem in 

addition to, and for the same purposes as, the distinctive emblems of the Geneva Conventions, 

which, for parties to AP III, shall enjoy equal status to the other emblems.391

This additional distinctive emblem, composed of a red frame in the shape of a square on 

edge on a white ground, shall conform to the illustration in the Annex to AP III.

392

This distinctive emblem is referred to in AP III as the “third Protocol emblem”393 but is 

often called the red crystal.

The conditions for use of and respect for the third Protocol emblem are identical to those 

for the distinctive emblems established by the 1949 Geneva Conventions and, where applicable, 

AP I and AP II.

394

AP III further provides for use of the Red Crystal for indicative purposes by national 

societies of the Parties to AP III. Such uses for indicative purposes by national societies are uses 

of the red crystal that do not indicate protection under the AP III, the GWS, or the GWS-Sea, but 

that indicate an association with the Red Cross movement.395

7.15.1.4 State Discretion Among Emblems. Although the GWS contemplates that 

the emblem of the red crescent and the emblem of the red sun and lion will be used only in States 

that already used them before ratifying the 1949 Geneva Conventions, AP III provides that the 

 

present Convention.”); GWS-SEA art. 41 (“Nevertheless, in the case of countries which already use as emblem, in 

place of the red cross, the red crescent or the red lion and sun on a white ground, these emblems are also recognized 

by the terms of the present Convention.”).

391 AP III art. 2(1) (“This Protocol recognizes an additional distinctive emblem in addition to, and for the same 

purposes as, the distinctive emblems of the Geneva Conventions. The distinctive emblems shall enjoy equal 

status.”).

392 AP III art. 2(2) (“This additional distinctive emblem, composed of a red frame in the shape of a square on edge 

on a white ground, shall conform to the illustration in the Annex to this Protocol.”).

393 AP III art. 2(2) (“This distinctive emblem is referred to in this Protocol as the ‘third Protocol emblem’.”).

394 AP III art. 2(3) (“The conditions for use of and respect for the third Protocol emblem are identical to those for the 

distinctive emblems established by the Geneva Conventions and, where applicable, the 1977 Additional 

Protocols.”).

395 AP III art. 3 (“1. National Societies of those High Contracting Parties which decide to use the third Protocol 

emblem may, in using the emblem in conformity with relevant national legislation, choose to incorporate within it, 

for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions or a combination of these 

emblems; or b) another emblem which has been in effective use by a High Contracting Party and was the subject of 

a communication to the other High Contracting Parties and the International Committee of the Red Cross through 

the depositary prior to the adoption of this Protocol. Incorporation shall conform to the illustration in the Annex to 

this Protocol. 2. A National Society which chooses to incorporate within the third Protocol emblem another emblem 

in accordance with paragraph 1 above, may, in conformity with national legislation, use the designation of that 

emblem and display it within its national territory. 3. National Societies may, in accordance with national 

legislation and in exceptional circumstances and to facilitate their work, make temporary use of the distinctive 

emblem referred to in Article 2 of this Protocol. 4. This Article does not affect the legal status of the distinctive 

emblems recognized in the Geneva Conventions and in this Protocol, nor does it affect the legal status of any 

particular emblem when incorporated for indicative purposes in accordance with paragraph 1 of this Article.”).
495

distinctive emblems of the Geneva Conventions shall enjoy equal status.396 In addition, AP III 

provides that the medical services and religious personnel of armed forces of Parties to AP III 

may, without prejudice to their current emblems, make temporary use of any distinctive emblems

where this may enhance protection.397

Some States have adopted the red crescent, without objection by other States Parties, 

even though their use of the red crescent did not predate the adoption of the GWS.

398 Israel 

ratified the 1949 Geneva Conventions with the reservation that it will use a Red Shield of David 

as its distinctive sign.399

7.15.2 Control of Display by the Competent Military Authority. Under the direction of 

the competent military authority, the emblem shall be displayed on the flags, armlets, and on all 

equipment employed in the Medical Service.400 For example, under military regulations, 

helmets or vehicles used by the Medical Service might bear the distinctive emblem to facilitate 

 396 AP III art. 2(1) (“The distinctive emblems shall enjoy equal status.”).

397 AP III art. 2(4) (“The medical services and religious personnel of armed forces of High Contracting Parties may, 

without prejudice to their current emblems, make temporary use of any distinctive emblem referred to in paragraph 

1 of this Article where this may enhance protection.”).

398 For example, H. Beer, Secretary General, League of Red Cross Societies, and J. Moreillon, Department of 

Principles and Law, International Committee of the Red Cross, Adoption of the Red Crescent by the Islamic 

Republic of Iran, Circular No. 72 (Nov. 5, 1980), reprinted in 20 INTERNATIONAL REVIEW OF THE RED CROSS, 316-

17 (1980) (“On 4 July 1980 the Islamic Republic of Iran informed the International Committee of the Red Cross and 

the League of Red Cross Societies of its decision to adopt the red crescent instead of the red lion and sun as the 

distinctive sign of its armed forces' medical service. ... On 4 September the Iranian Authorities notified the Swiss 

Government, the depositary of the Geneva Conventions, of the adoption by the Islamic Republic of Iran of the red 

crescent, and asked it to convey its decision to the States parties to the Geneva Conventions. This the Swiss 

Government did on 20 October.”).

399 See Israel, Statement on Signature of the GWS, Aug. 12, 1949, 75 UNTS 436 (“Subject to the reservation that, 

while respecting the inviolability of the distinctive signs and emblems of the Convention, Israel will use the Red 

Shield of David as the emblem and distinctive sign of the medical services of her armed forces.”); Israel, Statement 

on Ratification of the GWS, Jul. 6, 1952, 96 UNTS 323 (“The instrument confirms the reservations made by Israel 

upon signature of the Convention.”); Israel, Statement on Signature of the GWS-Sea, Aug. 12, 1949, 75 UNTS 438 

(“Subject to the reservation that, while respecting the inviolability of the distinctive signs and emblems of the 

Convention, Israel will use the Red Shield of David on the flags, armlets and on all equipment (including hospital 

ships), employed in the medical service.”); Israel, Statement on Ratification of the GWS-Sea, 96 UNTS 324 (Jul. 6, 

1952) (“The instrument confirms the reservations made by Israel upon signature of the Convention.”); Israel, 

Statement on Signature of the GC, Aug. 12, 1949, 75 UNTS 438 (“Subject to the reservation that, while respecting 

the inviolability of the distinctive signs and emblems provided for in Article 38 of the Geneva Convention for the 

Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Israel 

will use the Red Shield of David as the emblem and distinctive sign provided for in this Convention.”); Israel, 

Statement on Ratification of the GC, Jul. 6, 1952, 96 UNTS 326 (“The instrument confirms the reservations made by 

Israel upon signature of the Convention.”).

400 GWS art. 39 (“Under the direction of the competent military authority, the emblem shall be displayed on the 

flags, armlets and on all equipment employed in the Medical Service.”); GWS-SEA art. 41 (“Under the direction of 

the competent military authority, the emblem of the red cross on a white ground shall be displayed on the flags, 

armlets and on all equipment employed in the Medical Service.”).
496

the respect and protection of medical personnel by the enemy.

401 

7.15.2.1 Removal or Obscuration of the Distinctive Emblem. The display of the 

distinctive emblem is under the direction of the competent military authority.402 Thus, the 

military command may authorize the removal or obscuring of the distinctive emblem for tactical 

purposes, such as camouflage.403 Similarly, it would be appropriate for the distinctive emblem 

to be removed if it is assessed that enemy forces will fail to respect the emblem and seek to 

attack medical personnel; display of the emblem in such circumstances would not be considered 

“feasible” because in that instance it would not result in a humanitarian benefit.

404

In the practice of the United States, removal or obscuration of the distinctive emblem has 

generally been controlled by the responsible major tactical commander, such as a brigade 

commander or higher.405

7.15.3 Significance of the Display of the Distinctive Emblem. 

7.15.3.1 Distinctive Emblem Facilitates Protection. The purpose of the display of 

the distinctive emblem is to facilitate the identification of protected status.

406 The absence of the 

 401 Consider AP I Amended Annex I art. 5(4) (“Medical and religious personnel carrying out their duties in the battle 

area shall, as far as possible, wear headgear and clothing bearing the distinctive emblem.”).

402 GWS-SEA COMMENTARY 230 (“The initial phrase of the present Article is most important: use of the emblem is 

to be ‘under the direction of the competent military authority’. This wording shows that it is the military command 

which controls the emblem and can give or withhold permission to use it. Moreover, only that command can order a 

medical unit to be camouflaged.”). See also Frederic de Mulinen, Head of Division, International Committee of the 

Red Cross, Signalling and Identification of Medical Personnel and Material, 12 INTERNATIONAL REVIEW OF THE 

RED CROSS 479, 481 (1972) (“Distinctive emblems may not be displayed without the authorization of the State or of 

a State authority. ... The State or, by the delegation of its competency, the military command therefore ‘controls the 

emblem’ and is free to permit or prohibit the use of the distinctive emblem. It may even prohibit its use entirely 

without thereby violating the Conventions. In that event, actual protection would obviously be very small.”).

403 GWS-SEA COMMENTARY 228-29 (“In the first place there is no obligation on a belligerent to mark his medical 

units with the emblem. Sometimes military commanders have camouflaged such units—i.e. have abstained from 

marking them and even tried to conceal them—in order to conceal the presence or real strength of their forces. This 

is more likely to occur on land than at sea.”).

404 Refer to § 5.2.3.2 (What Precautions Are Feasible).

405 For example, DEPARTMENT OF THE ARMY REGULATION 750-1, Army Material Maintenance Policy, ¶8-9c(17) 

(Sept. 2013) (“Under tactical conditions, when requirements for concealment outweigh those for recognition, all 

conspicuous markings may be obscured or removed by the authority and at the discretion of the major organization 

commander present. Protective red cross markings may be obscured only at the direction of the responsible major 

tactical commander.”); DEPARTMENT OF THE ARMY TECHNICAL MANUAL 43-0139, Painting Instructions for Army 

Material, ¶1-3g (Jan. 1990) (“Under tactical conditions, when requirements for concealment outweigh those for 

recognition, all conspicuous markings may be obscured or removed by the authority and at the discretion of the 

major organization commander present. Protective red cross markings may be obscured only at the direction of the 

responsible major tactical commander.”).

406 AP III preamble (“Recalling that the obligation to respect persons and objects protected by the Geneva 

Conventions and the Protocols additional thereto derives from their protected status under international law and is 

not dependent on use of the distinctive emblems, signs or signals,”). Consider AP I Amended Annex I art. 1(1) 

(“The regulations concerning identification in this Annex implement the relevant provisions of the Geneva 

Conventions and the Protocol; they are intended to facilitate the identification of personnel, material, units, 

transports and installations protected under the Geneva Conventions and the Protocol.”).
497

distinctive emblem may increase the risk that enemy forces will not recognize the protected 

status of military medical and religious personnel and other protected persons and objects, and 

attack them in error.

7.15.3.2 Distinctive Emblem Does Not in and of Itself Establish the Right to 

Protection. The distinctive emblem does not in and of itself establish the right to protection.

407 

Rather, the right to protection is established by the fact that the units, facilities, or personnel, 

have met the applicable requirements for protected status.408

Thus, if the distinctive emblem is displayed by forces not entitled to protection, the 

display of the emblem does not confer protection and those forces may be made the object of 

attack. On the other hand, if personnel who are entitled to protection are recognized as such, 

they remain entitled to respect and protection even if the distinctive emblem is not displayed.

409

7.15.4 Prohibitions on Unauthorized Uses of the Distinctive Emblem. With the exception 

of certain cases mentioned in Article 44 of the GWS (discussed below), the emblem of the Red 

Cross on a white ground and the words “Red Cross” or “Geneva Cross” may not be employed, 

either in time of peace or in time of war, except to indicate or to protect the medical units and 

establishments, the personnel, and material protected by the GWS and other Conventions dealing 

with similar matters (e.g., the GWS-Sea).

410 The same shall apply to the emblems mentioned in 

the second paragraph of Article 38 of the GWS (i.e., the emblem of red crescent and the emblem 

of the red lion and sun), in respect of the countries that use them.411

The distinguishing signs referred to in Article 43 of the GWS-Sea (i.e., certain red 

crosses on white backgrounds) may only be used, whether in time of peace or war, for indicating 

or protecting the ships mentioned in Article 43, except as may be provided in any other 

international Convention (e.g., the GWS) or by agreement between all the parties to the conflict 

 407 See GWS COMMENTARY 307, 312, 330. Consider AP I Amended Annex I art. 1(2) (“These rules do not in and of 

themselves establish the right to protection. This right is governed by the relevant articles in the Conventions and 

the Protocol.”).

408 Refer to, e.g., § 4.9.2 (Requirements for Military Medical and Religious Status); § 7.12.1.1 (Military Hospital 

Ships); § 7.14.2 (Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked, and for the 

Transport of Medical Personnel and Equipment).

409 GWS-SEA COMMENTARY 229 (“Obviously, respect for camouflaged units will be purely theoretical. The enemy 

can respect a medical unit only if he knows of its presence. If the unit is exposed to long-range enemy fire, it will 

thus lose a large part of its security. If however, the enemy approaches, for instance, and recognizes the the [sic] 

medical unit as such, he must obviously respect it.”).

410 GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, 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 the present Convention and other Conventions dealing with similar matters.”).

411 GWS art. 44 (“The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of the 

countries which use them.”).
498

concerned.412

In particular, it is prohibited to use the distinctive emblem: (1) while engaging in attacks; 

(2) in order to shield, favor, or protect one’s own military operations; or (3) to impede enemy 

military operations.413 For example, using an ambulance marked with the Red Cross to mount a 

surprise attack against enemy forces would be prohibited.414

Certain non-military uses of the distinctive emblem are authorized under the GWS and 

GWS-Sea: (1) use by National Red Cross Societies and other Authorized Voluntary Aid 

Societies; (2) use by international Red Cross organizations and their duly authorized personnel; 

and (3) use by ambulances and free aid stations.

7.15.4.1 Use by National Red Cross Societies and Other Authorized Voluntary 

Aid Societies. The National Red Cross Societies and other Authorized Voluntary Aid Societies 

designated in Article 26 of the GWS shall have the right to use the distinctive emblem conferring 

the protection of the GWS only within the framework of paragraph 1 of Article 44 of the 

GWS.

415 

Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, in 

time of peace, in accordance with their national legislation, make use of the name and emblem of 

the Red Cross for their other activities that are in conformity with the principles laid down by the 

International Red Cross Conferences.416 When those activities are carried out in time of war, the 

conditions for the use of the emblem shall be such that it cannot be considered as conferring the 

protection of the GWS; the emblem shall be comparatively small in size and may not be placed 

on armlets or on the roofs of buildings.417 This use of the emblem is simply to indicate an 

 412 GWS-SEA art. 44 (“The distinguishing signs referred to in Article 43 can only be used, whether in time of peace 

or war, for indicating or protecting the ships therein mentioned, except as may be provided in any other international 

Convention or by agreement between all the Parties to the conflict concerned.”).

413 Refer to § 5.24 (Improper Use of Certain Signs).

414 For example, Trial of Heinz Hagendorf, XIII U.N. LAW REPORTS 146 (U.S. Intermediate Military Government 

Court, Dachau, Germany, Aug. 8-9, 1946) (“The accused, Heinz Hagendorf, a German soldier, was tried by a United 

states Intermediate Military Government Court at Dachau, Germany, being charged with having ‘wrongfully used 

the Red Cross emblem in a combat zone by firing a weapon at American soldiers from an enemy ambulance 

displaying such emblem.’”).

415 GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, 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 the present Convention and the other Conventions dealing with similar matters. 

The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of the countries which 

use them. The National Red Cross Societies and other Societies designated in Article 26 shall have the right to use 

the distinctive emblem conferring the protection of the Convention only within the framework of the present 

paragraph.”).

416 GWS art. 44 (“Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, in time of 

peace, in accordance with their national legislation, make use of the name and emblem of the Red Cross for their 

other activities which are in conformity with the principles laid down by the International Red Cross Conferences.”).

417 GWS art. 44 (“When those activities are carried out in time of war, the conditions for the use of the emblem shall 

be such that it cannot be considered as conferring the protection of the Convention; the emblem shall be 

comparatively small in size and may not be placed on armlets or on the roofs of buildings.”).
499

association with the Red Cross movement.418

7.15.4.2 Use by International Red Cross Organizations and Their Duly 

Authorized Personnel. The international Red Cross organizations and their duly authorized 

personnel shall be permitted to make use, at all times, of the emblem of the Red Cross on a white 

ground.419

7.15.4.3 Use by Ambulances and Free Aid Stations. As an exceptional measure, 

in conformity with national legislation and with the express permission of one of the National 

Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of the GWS may be 

employed in time of peace to identify vehicles used as ambulances and to mark the position of 

aid stations exclusively assigned to the purpose of giving free treatment to the wounded or 

sick.420

7.16 PROTECTION OF CIVILIANS WHO ARE WOUNDED, SICK, INFIRM, OR EXPECTANT MOTHERS

Wounded and sick civilians, as well as the infirm, and expectant mothers, shall be the 

object of particular protection and respect.

421 The infirm and expectant mothers are given special 

consideration along with the wounded and sick because they are vulnerable and also do not take 

part in hostilities.422

7.16.1 Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded, Killed, 

Shipwrecked, or Exposed to Grave Danger. As far as military considerations allow, each party

to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the 

shipwrecked and other persons exposed to grave danger, and to protect them against pillage and 

ill-treatment.

423

 418 GWS COMMENTARY 325 (“In the second case, the sign is purely indicatory. It is only used to show that a person 

or object is connected with the Red Cross, without implying the protection of the Convention or any intention to 

invoke it. It is, for example, used in this way to draw public attention to premises or publications. The emblem 

should then, as a rule, be small in size, and the conditions under which it is used should preclude all risk of its being 

confused with the protective sign.”).

419 GWS art. 44 (“The international Red Cross organizations and their duly authorized personnel shall be permitted 

to make use, at all times, of the emblem of the Red Cross on a white ground.”).

420 GWS art. 44 (“As an exceptional measure, in conformity with national legislation and with the express 

permission of one of the National Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of the 

Convention may be employed in time of peace to identify vehicles used as ambulances and to mark the position of 

aid stations exclusively assigned to the purpose of giving free treatment to the wounded or sick.”).

421 GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular 

protection and respect.”).

422 GC COMMENTARY 134-35 (“In addition to the wounded and sick the Diplomatic Conference mentions the infirm 

and also expectant mothers, as those persons are in a state of weakness which demands special consideration. Their 

being placed on the same footing as the wounded and sick is fully justified by the fact that they belong to categories 

of the population which do not take part in hostilities.”).

423 GC art. 16 (“As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to 

search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to 

protect them against pillage and ill-treatment.”).
500

The obligation with respect to civilians who are killed, wounded, shipwrecked, and

exposed to grave danger is framed slightly differently from the corresponding obligation with 

respect to military personnel who are wounded, sick, and shipwrecked. These differences may 

be attributed to the fact that civilian authorities would often be responsible for collecting and 

bringing in civilian casualties.424 However, as a practical matter, the armed forces may be asked 

to lead such efforts or to carry out a joint relief operation with civilian authorities.425 For 

example, the U.S. armed forces often have undertaken to care for the civilian wounded and 

sick.426

7.17 CIVILIAN HOSPITALS AND THEIR PERSONNEL

During international armed conflict, civilian hospitals organized to give care to the 

wounded and sick, the infirm, and maternity cases, may in no circumstances be the object of 

attack, but shall at all times be respected and protected by the parties to the conflict.427 

7.17.1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the 

Enemy. The protection to which civilian hospitals are entitled shall not cease unless they are 

used to commit, outside their humanitarian duties, acts harmful to the enemy.428 

7.17.1.1 Acts Harmful to the Enemy. Civilian hospitals must avoid any 

 424 GC COMMENTARY 135 (“It is true that saving civilians is the responsibility of the civilian authorities rather than 

of the military. That is why the wording of Article 16 (‘each Party to the conflict shall facilitate the steps’ ...) is 

slightly different from the corresponding Article in the First Geneva Convention (‘Parties to the conflict shall, 

without delay ... take all possible measures ...’).”).

425 GC COMMENTARY 135-36 (“In actual practice, however, when it is necessary to search devastated areas, the 

military and civilian bodies will usually carry out a joint relief operation covering all war casualties, civilians and 

members of the armed forces, friends and enemies. This is the only attitude to adopt in work of this description 

which consists, in short, not in helping soldiers on the one hand and civilians on the other, but simply in assisting 

human beings plunged into suffering by a common destiny-human beings among whom all distinctions have been 

wiped out by suffering.”).

426 For example, SANDERS MARBLE, SKILLED AND RESOLUTE: A HISTORY OF THE 12TH EVACUATION HOSPITAL AND 

THE 212TH MASH, 1917-2006, 69-70 (2013) (“About two-thirds of patients cared for by the 12th were US military; 

the other third were mainly Vietnamese but also included nonmilitary Americans and Free World Military 

Assistance Forces personnel. Staff regularly dealt with the Vietnamese, both military and civilian, enemy and 

friendly. There were wards set aside for enemy prisoners (who were stabilized, then transferred to hospitals at POW 

camps) and civilians. Wounded South Vietnamese Army soldiers were also stabilized and transferred to hospitals 

run by the Army of the Republic of Vietnam (ARVN). Civilian patients often stayed longer because the war 

swamped the available hospitals for Vietnamese civilians. Some local civilians came to the hospital for care of 

conditions not related to the war.”); id. at. 104 (“Almost immediately after the ground fighting ended [during the 

1991 Persian Gulf War], more patients arrived: civilians, enemy prisoners, and Coalition and US troops. Despite 

the influx, the 12th had to staff only 104 beds of its 400-bed maximum. At first the civilians were Kuwaitis, but by 

March 23 Iraqi civilians began arriving, victims of the southern Iraqi rebellion against Saddam Hussein. The 

civilians arrived in large batches, Chinook loads of 30 or 40 at a time. Not all were patients; families often 

accompanied an injured member.”).

427 GC art. 18 (“Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, 

may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the 

conflict.”).

428 GC art. 19 (“The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, 

outside their humanitarian duties, acts harmful to the enemy.”).
501

interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for 

able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation 

post, or as a center for liaison with combat forces.

429 However, the fact that sick or wounded 

members of the armed forces are nursed in these hospitals, or the presence of small arms and 

ammunition taken from such combatants and not yet handed to the proper service, shall not be 

considered acts harmful to the enemy.430

7.17.1.2 Due Warning Before Cessation of Protection. In addition, protection for 

civilian hospitals may cease only after due warning has been given, naming, in all appropriate 

cases, a reasonable time limit, and after such warning has remained unheeded.431

The obligation to refrain from use of force against a civilian medical facility acting in 

violation of its mission and protected status without due warning does not prohibit the exercise 

of the right of self-defense. There may be cases in which, in the exercise of the right of selfdefense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces 

receiving heavy fire from a hospital may exercise their right of self-defense and return fire. Such 

use of force in self-defense against medical units or facilities must be proportionate. For 

example, a single enemy rifleman firing from a hospital window would warrant a response 

against the rifleman only, rather than the destruction of the hospital.

432

7.17.2 Identification of Protected Civilian Hospitals. The GC provides for civilian 

hospitals to be identified with certificates and the distinctive emblem.

7.17.2.1 State-Issued Certificates for Civilian Hospitals. States that are parties to 

a conflict shall provide all civilian hospitals with certificates showing that they are civilian 

hospitals and that the buildings that they occupy are not used for any purpose that would deprive 

these hospitals of protection in accordance with Article 19 of the GC.433 

7.17.2.2 Markings of Civilian Hospitals With the Distinctive Emblem. Civilian 

hospitals shall be marked by means of the distinctive emblem provided for in Article 38 of the 

 429 GC COMMENTARY 155 (“Such harmful acts would, for example, include the use of a hospital as a shelter for ablebodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for 

liaison with fighting troops. The sense will become still clearer when paragraph 2, below is considered, which 

mentions two specific acts which are not to be regarded as being harmful to the enemy. One thing is certain. 

Civilian hospitals must observe, towards the enemy, the neutrality which they claim for themselves and which is 

their right under the Convention. Standing outside the struggle, they must steadfastly refrain from any interference, 

direct or indirect, in military operations.”).

430 GC art. 19 (“The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the 

presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall 

not be considered to be acts harmful to the enemy.”).

431 GC art. 19 (“Protection may, however, cease only after due warning has been given, naming, in all appropriate 

cases, a reasonable time limit, and after such warning has remained unheeded.”).

432 Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).

433 GC art. 18 (“States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that 

they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would 

deprive these hospitals of protection in accordance with Article 19.”).
502

GWS, but only if authorized by the State.434

The parties to the conflict shall, in so far as military considerations permit, take the 

necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to 

the enemy land, air, and naval forces in order to obviate the possibility of any hostile action.435

7.17.3 Location of Civilian Hospitals. In view of the dangers to which civilian hospitals 

may be exposed by being close to military objectives, it is recommended that such hospitals be 

situated as far as possible from such objectives.436

This provision of the GC was drafted because the protection for civilian hospitals in the 

GC does not confer immunity on military objectives situated close to the hospital or restrict the 

right to make such military objectives the object of attack.437 

7.17.4 Protection of Civilian Hospital Personnel.

7.17.4.1 Civilian Hospital Personnel Who Are Regularly and Solely Engaged. 

Persons regularly and solely engaged in the operation and administration of civilian hospitals, 

including the personnel engaged in the search for, removal and transporting of, and caring for 

wounded and sick civilians, the infirm, and maternity cases, shall be respected and protected at 

all times.438 For example, a surgeon who works regularly in a hospital, but is not exclusively 

employed there, would not be engaged “solely” in hospital duties and would consequently not be 

covered by this provision, but could fall under the category of “other civilian hospital 

personnel.”439

In occupied territory and in zones of military operations, civilian hospital personnel who 

 434 GC art. 18 (“Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva 

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 

12, 1949, but only if so authorized by the State.”).

435 GC art. 18 (“The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps 

to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces 

in order to obviate the possibility of any hostile action.”).

436 GC art. 18 (“In view of the dangers to which civilian hospitals may be exposed by being close to military 

objectives, it is recommended that such hospitals be situated as far as possible from such objectives.”).

437 GC COMMENTARY 153 (“The last paragraph shows clearly that wide as that scope is, it is not intended to confer 

immunity on military objectives situated close to a hospital or to restrict the right to attack them as such. It is for 

that reason that the legal protection accorded to military hospitals must be accompanied by practical measures to 

ensure that they are situated as far as possible from military objectives and to protect them from the accidental 

consequences of attacks on such objectives. If that is not done the protection is very likely to be illusory, even if the 

hospitals are clearly marked.”).

438 GC art. 20 (“Persons regularly and solely engaged in the operation and administration of civilian hospitals, 

including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick 

civilians, the infirm and maternity cases, shall be respected and protected.”).

439 GC COMMENTARY 159 (“For example, a surgeon who works regularly in a hospital, but is not exclusively 

employed there because he devotes part of his time to his private practice, or again, voluntary laboratory assistants 

or auxiliaries, who only work at the hospital for part of the day, or for one or two days a week, would not be 

engaged ‘solely’ in hospital duties and would consequently not be covered by paragraph 1.”).
503

are regularly and solely engaged in hospital duties shall be recognizable by means of an identity 

card certifying their status, bearing the photograph of the holder and embossed with the stamp of 

the responsible authority, and also by means of a stamped, water-resistant armlet that they shall 

wear on the left arm while carrying out their duties.440 This armlet shall be issued by the State 

and shall bear the emblem provided for in Article 38 of the GWS.441

7.17.4.2 Other Civilian Hospital Personnel. Other personnel who are engaged in 

the operation and administration of civilian hospitals shall also be entitled to respect and 

protection and to wear the armlet while they are employed on such duties.442 The identity card 

shall state the duties on which they are employed.443 

7.17.4.3 List of Permanent and Temporary Civilian Hospital Personnel. The 

management of each hospital shall at all times hold at the disposal of the competent national or 

occupying authorities an up-to-date list of such personnel.444 This list should provide the names 

of all hospital personnel, both permanent and temporary, and specify the duties of each of 

them.445

7.18 LAND AND SEA CIVILIAN HOSPITAL CONVOYS

Convoys of vehicles or hospital trains on land or specially provided vessels on sea, 

conveying wounded and sick civilians, the infirm, and maternity cases, shall be respected and 

protected in the same manner as the hospitals provided for in Article 18 of the GC, and shall be 

marked, with the consent of the State, by the display of the distinctive emblem provided for in 

Article 38 of the GWS.446

The vehicles in a medical convoy need not be used permanently for medical purposes, 

 440 GC art. 20 (“In occupied territory and in zones of military operations, the above personnel shall be recognizable 

by means of an identity card certifying their status, bearing the photograph of the holder and embossed with the 

stamp of the responsible authority, and also by means of a stamped, water-resistant armlet which they shall wear on 

the left arm while carrying out their duties.”).

441 GC art. 20 (“This armlet shall be issued by the State and shall bear the emblem provided for in Article 38 of the 

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 

August 12, 1949.”).

442 GC art. 20 (“Other personnel who are engaged in the operation and administration of civilian hospitals shall be 

entitled to respect and protection and to wear the armlet, as provided in and under the conditions prescribed in this 

Article, while they are employed on such duties.”).

443 GC art. 20 (“The identity card shall state the duties on which they are employed.”).

444 GC art. 20 (“The management of each hospital shall at all times hold at the disposal of the competent national or

occupying authorities an up-to-date list of such personnel.”).

445 GC COMMENTARY 169 (“The management of every civilian hospital must keep an up-to-date nominal list of all 

the hospital staff, both permanent and temporary, specifying the duties of each of them.”).

446 GC art. 21 (“Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying 

wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as 

the hospitals provided for in Article 18, and shall be marked, with the consent of the State, by the display of the 

distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the 

Wounded and Sick in Armed Forces in the Field of August 12, 1949.”).
504

but while they are in the convoy, they are not to be used for other purposes.447

7.18.1 Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian 

Hospitals. The protection to which these convoys are entitled shall not cease unless they are 

used to commit, outside their humanitarian duties, acts harmful to the enemy.448 

As with civilian hospitals, medical convoys must maintain a strict abstention from any 

direct or indirect participation in a hostile act in order to retain protection.449 However, the fact 

that sick or wounded members of the armed forces are transported by these convoys, or the 

presence of small arms and ammunition taken from such combatants and not yet handed to the 

proper service, shall not be considered acts harmful to the enemy.450

In addition, protection for civilian medical convoys may cease only after due warning has 

been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has 

remained unheeded.451

7.19 CIVILIAN MEDICAL AIRCRAFT

Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm, 

and maternity cases, or for the transport of medical personnel and equipment, shall not be 

attacked, but shall be respected while flying at heights, times, and on routes specifically agreed 

upon between all the parties to the conflict concerned.452 

7.19.1 Civilian Medical Aircraft Not Flying at Heights and Times and on Routes 

Specifically Agreed Upon by Belligerents Concerned. As with medical aircraft for military 

personnel, the use of protected medical aircraft for civilians generally depends on an agreement 

between the belligerents.453

However, as with medical aircraft for military personnel, known civilian medical aircraft, 

when performing their humanitarian functions, must be respected and protected, provided they 

 447 GC COMMENTARY 170 (“The word ‘vehicle’ must be taken in the broadest possible sense: it covers any means 

of transport by land; it need not necessarily be used solely for medical purposes. It will be enough if it is so used 

occasionally and temporarily, provided, of course, that while so employed it is not used for any other purpose. A 

medical convoy composed of horse drawn vehicles normally used for transporting agricultural produce and 

occasionally used in the service of the wounded, must, therefore, be protected in the same way as a convoy of 

specially designed ambulances.”).

448 Compare § 7.17.1 (Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy).

449 GC COMMENTARY 171 (“As in the case of civilian hospitals and their staff, the protection of medical transport 

depends on strict abstention from any direct or indirect participation in a hostile act.”).

450 Compare § 7.17.1.1 (Acts Harmful to the Enemy).

451 Compare § 7.17.1.2 (Due Warning Before Cessation of Protection).

452 GC art. 22 (“Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm and 

maternity cases, or for the transport of medical personnel and equipment, shall not be attacked, but shall be 

respected while flying at heights, times and on routes specifically agreed upon between all the Parties to the conflict 

concerned.”).

453 Refer to § 7.14 (Military Medical Aircraft).
505

identify themselves as such and comply with the directions of the enemy State.454

7.19.2 Marking of Civilian Medical Aircraft With the Distinctive Emblem. The aircraft 

may be marked with the distinctive emblem provided for in Article 38 of the GWS.455

7.19.3 Prohibition of Flight Over Enemy Territory. Unless otherwise agreed, flights over 

enemy or enemy-occupied territory are prohibited.456

Summons to Land. Such aircraft shall obey every summons to land.457 7.19.4 If the 

aircraft refuses to obey, it does so at its own risk.458

In the event of a landing thus imposed, the aircraft with its occupants may continue its 

flight after examination, if any.459 However, if examination reveals that an act “harmful to the 

enemy” has been committed, e.g., if the aircraft is carrying munitions or has been used for 

military observation, it loses the benefit of the GC; the aircraft may be seized and the crew and 

passengers detained.

460

7.20 AP I PROVISIONS ON THE WOUNDED, SICK, AND SHIPWRECKED

Part II of AP I has a number of provisions regarding the wounded, sick, and shipwrecked. 

These provisions have generally not been discussed in this Chapter because the United States is 

not a Party to AP I. These provisions, however, are summarized in this section to familiarize 

service members with them in case U.S. forces are engaged in multinational operations with, or 

are engaged in armed conflict against, States that are Parties to AP I.

 454 Refer to § 7.14.1 (Medical Aircraft Not Flying at Heights and Times and on Routes Specifically Agreed Upon by 

Belligerents Concerned).

455 GC art. 22 (“They may be marked with the distinctive emblem provided for in Article 38 of the Geneva 

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 

12, 1949.”).

456 GC art. 22 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”).

457 GC art. 22 (“Such aircraft shall obey every summons to land.”). See also GC COMMENTARY 176 (“The summons 

to land provides the adverse party with a safeguard; it is the one real means of defence against abuse. This 

extremely important provision has also been taken from the First Geneva Convention of 1949; it states explicitly that 

medical aircraft must obey every summons to land. It applies in the first place to aircraft flying over enemy or 

enemy-occupied territory whether or not they are authorized to do so. It also applies to aircraft which are over their 

own territory but close to the enemy lines.”).

458 GC COMMENTARY 176 (“If the aircraft refuses to obey, it does so at its own risk and it is lawful to open fire on it. 

If the machine is already out of range, the summons obviously becomes a mere formality. It should not be forgotten 

however that if the plane refuses to obey the summons and is pursued it loses the protection of the Convention, 

having failed to comply with its own obligations.”).

459 GC art. 22 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after 

examination, if any.”).

460 GC COMMENTARY 177 (“If—and it is to be hoped that such cases will be the exception—if examination reveals 

that an act ‘harmful to the enemy’, in the sense of Article 19, has been committed, i.e. if the plane is carrying 

munitions or has been used for military observation, it loses the benefit of the Convention; the enemy may seize it 

and intern the crew and passengers or, should occasion arise, treat them in accordance with Article 5 of the 

Convention.”).
506

7.20.1 AP I Provisions on General Protection of the Wounded, Sick, and Shipwrecked 

Persons. Section I of Part II of AP I seeks to elaborate upon and change the protections afforded 

the wounded, sick, and shipwrecked. For example, AP I provides protection for certain civilian 

medical units.461 The obligations in AP I also cover both combatants and civilians. For the 

purpose of applying AP I, Article 8 of AP I defines “wounded” and “sick” to include persons 

“whether military or civilian” and “maternity cases, new-born babies and other persons who may 

be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and 

who refrain from any act of hostility.”462 On the other hand, in the 1949 Geneva Conventions, 

the protections for civilians who are wounded and sick are addressed in the GC, and the 

protections for combatants who are wounded and sick are addressed in the GWS, GWS-Sea, and 

GPW.463

7.20.2 AP I Provisions on Medical Transportation. Section II of AP I has a number of 

articles that are intended to expand upon the protection afforded to medical transports. For 

example, under AP I, the respect and protection of medical aircraft of a party to the conflict in 

and over land areas physically controlled by friendly forces or in and over sea areas not 

physically controlled by an adverse party are not dependent on any agreement with an adverse 

party.

464 Similarly, the protection of small craft described in Article 27 of the GWS-Sea is 

afforded, even if the notification envisaged by that Article has not been made.465

7.20.3 AP I Provisions on Missing and Dead Persons. Section III of Part II of AP I has 

three articles that are intended to help families know the fate of their relatives.466 For example, 

as soon as circumstances and the relations between adverse parties permit, the States that are

Parties to AP I in whose territories graves may be shall conclude agreements: (1) to facilitate 

access to gravesites by relatives of the deceased and by representatives of official Graves 

 461 AP I art. 12(2) (“2. Paragraph 1 shall apply to civilian medical units, provided that they: a) belong to one of the 

Parties to the conflict; b) are recognized and authorized by the competent authority of one of the Parties to the 

conflict; or c) are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First 

Convention.”).

462 AP I art. 8(a) (“‘Wounded’ and ‘sick’ mean persons, whether military or civilian, who, because of trauma, 

disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain 

from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in 

need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act 

of hostility;”).

463 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea); § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers).

464 AP I art. 25 (“In and over land areas physically controlled by friendly forces, or in and over sea areas not 

physically controlled by an adverse Party, the respect and protection of medical aircraft of a Party to the conflict is 

not dependent on any agreement with an adverse Party. For greater safety, however, a Party to the conflict operating 

its medical aircraft in these areas may notify the adverse Party, as provided in Article 29, in particular when such 

aircraft are making flights bringing them within range of surface-to-air weapons systems of the adverse Party.”).

465 AP I art. 22(3) (“Small craft described in Article 27 of the Second Convention shall be protected even if the 

notification envisaged by that Article has not been made. The Parties to the conflict are, nevertheless, invited to 

inform each other of any details of such craft which will facilitate their identification and recognition.”).

466 AP I art. 32 (“In the implementation of this Section, the activities of the High Contracting Parties, of the Parties 

to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol 

shall be prompted mainly by the right of families to know the fate of their relatives.”).
507

Registration Services and to regulate the practical arrangements for such access; (2) to protect 

and maintain such gravesites permanently; and (3) to facilitate the return of the remains of the 

deceased and of personal effects to the home country upon its request or, unless that country 

objects, upon the request of the next of kin.467

 467 Consider AP I art. 34(2) (“As soon as circumstances and the relations between the adverse Parties permit, the 

High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of

persons who have died as a result of hostilities or during occupation or in detention are situated, shall conclude 

agreements in order: (a) to facilitate access to the gravesites by relatives of the deceased and by representatives of 

official graves registration services and to regulate the practical arrangements for such access; (b) to protect and 

maintain such gravesites permanently; (c) to facilitate the return of the remains of the deceased and of personal 

effects to the home country upon its request or, unless that country objects, upon the request of the next of kin.”).
508

VIII – Detention: Overview and Baseline Rules

Chapter Contents

8.1 Introduction

8.2 Humane Treatment of Detainees

8.3 Security Measures

8.4 Interrogation

8.5 Adequate Food, Drinking Water, and Clothing

8.6 General Conditions of Detention Facilities

8.7 Segregation of Detainees

8.8 Medical Attention

8.9 Administration and Discipline in Detention Facilities

8.10 Contacts With the Outside World

8.11 Religious Exercise

8.12 Intellectual, Physical, and Recreational Activities

8.13 Adequate Working Conditions

8.14 Procedures for Detention

8.15 National Accountability for Detention

8.16 Criminal Procedure and Punishment

8.1 INTRODUCTION

8.1.1 Overview of Detention Rules in This Manual and the Scope of Chapter VIII. The 

internment of POWs is addressed in Chapter IX. The internment of protected persons in the 

home territory of a belligerent or in occupied territory is addressed in Chapter X.

Detention may occur outside these contexts. For example, the detention of civilians may 

occur outside a belligerent’s home territory but before the establishment of occupation. 

Similarly, detention may occur in non-international armed conflict or other military operations, 

such as non-combatant evacuation operations, peace operations, or humanitarian assistance 

operations. There are no “law-free zones” in which detainees are outside the protection of the 

law. Where no more specific rules apply, the rules in this Chapter apply as baseline rules 

addressing the detention of persons during military operations. For example, the following 

situations are covered by the rules in this Chapter:

• detention of persons who have participated in hostilities or who belong to armed groups, 

but who are not entitled to POW status or protected person status in international armed 

conflict;

• detention of persons held for reasons related to a non-international armed conflict; and

• any other detentions.

8.1.2 DoD Policies and Regulations Regarding the Treatment of Detainees. DoD policies 

and regulations regarding the treatment of detainees provide authoritative guidance for DoD 
509

personnel and fill an important role in implementing the requirements of Common Article 3 of 

the 1949 Geneva Conventions and applicable customary international law.1

 Practitioners are 

advised to consult all applicable policies and regulations, as these, in many cases, exceed the 

requirements of international law, U.S. statutes, and Executive Orders.

The practice of the U.S. armed forces has been to go beyond a minimalist approach of 

complying with the baseline rules of Common Article 3 of the 1949 Geneva Conventions and 

instead to endeavor to enhance conditions so as to ensure that treatment of detainees exceeds the 

requirements of humane treatment standards under international law, consistent with security 

concerns.2

8.1.3 Ad Hoc Legal Instruments or Frameworks That May Be Applicable to Detention 

Outside the Context of POW or Civilian Internment. The detention of persons under the law of 

war, outside the context of the regimes specified in Chapters IX (POWs under the GPW) and X 

(protected persons under the GC who are interned in a belligerent’s home territory or occupied 

territory) may be addressed in ad hoc legal instruments or frameworks. 

Such legal instruments may include, for example, an international agreement between the 

State conducting detention operations and the State on whose territory the operations are being 

conducted.3 As another example, a U.N. Security Council Resolution may provide a basis for 

detention operations.4

8.1.3.1 Detention Authority. The legal authority to detain outside the context of 

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

2 For example, Admiral Patrick Walsh, et al., Department of Defense, Review of Department Compliance with 

President’s Executive Order on Detainee Conditions of Confinement, 4 (2009) (“While we conclude that conditions 

at Guantánamo are in conformity with Common Article 3, from our review, it was apparent that the chain of 

command responsible for the detention mission at Guantánamo consistently seeks to go beyond a minimalist 

approach to compliance with Common Article 3, and endeavors to enhance conditions in a manner as humane as 

possible consistent with security concerns.”).

3 For example, Agreement Between the United States and the Republic of Iraq on the Withdrawal of United States 

Forces from Iraq and the Organization of their Activities during their Temporary Presence in Iraq, Nov. 17, 2008, 

art. 22(1) (“No detention or arrest may be carried out by the United States Forces (except with respect to detention 

or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision 

issued in accordance with Iraqi law and pursuant to Article 4.”).

4 For example, U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), ¶10 (Jun. 8, 

2004) (“Decides that the multinational force shall have the authority to take all necessary measures to contribute to 

the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, 

inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including 

by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi 

people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the 

timetable and programme for the political process and benefit from reconstruction and rehabilitation activities;”). 

See also Colin L. Powell, Secretary of State, Letter to the Lauro L. Baja, Jr., President of the Security Council, Jun. 

5, 2004, annexed to U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), 10, 11 (Jun. 

8, 2004) (“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to 

contribute to the maintenance of security and to ensure force protection. These include activities necessary to 

counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This 

will include combat operations against members of these groups, internment where this is necessary for imperative 

reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security.”).
510

the internment of POWs or protected persons may be addressed in ad hoc international 

instruments. Even if not specifically addressed in an international legal instrument, the legal 

authority to detain may sometimes be understood as an incident of general authorities conferred 

by that instrument, such as a U.N. Security Council Resolution authorizing military operations or 

an agreement authorizing one State to conduct military operations on the territory of another 

State.

5

In many cases, the legal authority to detain would be understood as an exercise of the 

Detaining Power’s sovereign rights under international law rather than, or in addition to, 

authorities arising from an international legal instrument.6

The authority to detain is often understood as an incident to more general authorities 

because detention is fundamental to waging war or conducting other military operations (e.g., 

noncombatant evacuation operations, peacekeeping operations).

7

 Detention operations may be 

militarily necessary to achieve the object of those operations.8

 In addition, the right to use force 

in self-defense during such operations includes at least a limited right to detain for security 

reasons.9

 In fact, it may be inhumane to conduct military operations without some provision for 

those who are detained incident to the operations (e.g., being prepared to conduct detention 

operations, and provision for transfer of captured persons to coalition partners who are 

 5 For example, Brigadier General Bantz J. Craddock, Task Force Falcon, Policy Letter #TFF-04, Detention 

Processing ¶1 (Aug. 3, 1999), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE 

GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN KOSOVO, 1999-2001: 

LESSONS LEARNED FOR JUDGE ADVOCATES 281 (2001) (“Pursuant to United Nations Security Council Resolution 

1244, KFOR [Kosovo Force] has the responsibility to ensure public safety and order until the international civil 

presence can take responsibility for this task. Sergio Vieira de Mello reiterated that, ‘In performing this task, KFOR 

has the right to apprehend and detain persons who are suspected of having committed offenses against public safety 

and order, including the commission of such serious offenses as murder, rape, kidnapping or arson, or war crimes 

(enclosure).’ This memorandum outlines the procedures to be employed in the Multi-National Brigade-East Area of 

Responsibility (MNB-E AOR) for the detention and release of civilians.”).

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

7 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“The AUMF authorizes the President to use 

‘all necessary and appropriate force’ against ‘nations, organizations, or persons’ associated with the September 11, 

2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States 

in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network 

responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that 

detention of individuals falling into the limited category we are considering, for the duration of the particular 

conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 

‘necessary and appropriate force’ Congress has authorized the President to use.”); Moyer v. Peabody, 212 U.S. 78, 

84 (1909) (Holmes, J.) (“The constitution [of the State of Colorado] is supplemented by an act providing that ‘when 

an invasion of or insurrection in the state is made or threatened, the Governor shall order the national guard to repel 

or suppress the same.’ Laws of 1897, c. 63, Art. 7, § 2, p. 204. That means that he shall make the ordinary use of the 

soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of 

seizing the bodies of those whom he considers to stand in the way of restoring peace.”).

8 See, e.g., Copenhagen Process: Principles and Guidelines ¶3 (“Participants recognised that detention is a 

necessary, lawful and legitimate means of achieving the objectives of international military operations;”).

9 For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure 

to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14, 

2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain 

persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”).
511

conducting humane detention operations).10

8.1.3.2 Specific Procedures or Restrictions Applicable to Detention Outside the 

Context of POW or Protected Person Internment. Ad hoc legal instruments may provide 

additional procedures or restrictions applicable to detention outside the context of the internment 

of POWs or protected persons. For example, special agreements between opposing non-State 

parties to a conflict could be used to bring into force provisions of the GPW or GC for the 

purposes of that conflict.

11 As another example, agreements among coalition partners regarding 

the transfer of detainees between one another might prescribe additional requirements.

8.1.4 Sources of Baseline Standards for the Treatment of Detainees. The baseline 

standards for the treatment of detainees by U.S. armed forces addressed in this Chapter are 

derived from Common Article 3 of the 1949 Geneva Conventions, applicable customary 

international law, and applicable U.S. law and national policy. The principle of humanity 

animates the rules discussed in this Chapter.12 In addition, analogous provisions of the GPW and 

the GC may also be helpful in understanding the baseline rules for detention. 

8.1.4.1 Common Article 3 of the 1949 Geneva Conventions. Although Common 

Article 3 of the 1949 Geneva Conventions provides that it applies “[i]n the case of armed conflict 

not of an international character occurring in the territory of one of the High Contracting 

Parties,” Common Article 3 reflects minimum standards for humane treatment that apply to all 

military operations.

13 Thus, during both international and non-international armed conflict, 

Common Article 3 reflects a minimum yardstick of humane treatment protections for “all 

persons taking no active part in hostilities, including members of armed forces who have laid 

down their arms and those placed hors de combat by sickness, wounds, detention, or any other 

cause.”14

DoD policy has explicitly incorporated the standards in Common Article 3 as minimum 

standards.

15 

 10 Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

11 Refer to § 17.3 (Special Agreements Between Parties to the Conflict).

12 Refer to § 2.3 (Humanity).

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

14 GWS art. 3; GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). See Hamdan v. Rumsfeld, 548 U.S. 

557, 630-31 (2006) (explaining that Common Article 3 provides “some minimal protection” in all armed conflicts); 

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 

I.C.J. 14, 114 (¶218) (explaining that the rules in Common Article 3 of the 1949 Geneva Conventions “constitute a 

minimum yardstick,” in all armed conflicts and reflect “elementary considerations of humanity”) (quoting Corfu 

Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22).

15 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3a (Aug. 19, 2014) (“Until a detainee’s 

release, repatriation, or transfer from DoD custody or control, all persons subject to this directive will, without 

regard to a detainee’s legal status, at a minimum apply: (1) The standards established in Common Article 3 to 

References (b) through (e).”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶¶4.1-4.2 

(Sept. 5, 2006) (requiring that all detainees “be treated humanely” and “shall receive, at a minimum, the standard of 

treatment discussed in Common Article 3 of the Geneva Conventions”).
512

8.1.4.2 Article 75 of AP I and Relevant AP II Provisions. Article 75 of AP I 

reflects fundamental guarantees for the treatment of persons detained during international armed 

conflict. Although not a Party to AP I, the United States has stated that the U.S. Government 

will choose out of a sense of legal obligation to treat the principles set forth in Article 75 as 

applicable to any individual it detains in an international armed conflict, and expects all other 

nations to adhere to these principles as well.

16 This statement was intended to contribute to the 

crystallization of the principles contained in Article 75 as rules of customary international law 

applicable in international armed conflict.

17

AP II also contains provisions that expand on Common Article 3’s protections for 

persons held for reasons related to non-international armed conflict. Although the United States 

has not ratified AP II, President Reagan submitted AP II to the Senate for its advice and consent 

to ratification, and the Executive Branch has urged the Senate to act as soon as practicable on AP 

II, noting further that reviews have determined that relevant U.S. military practices are consistent 

with AP II.18

8.1.4.3 U.S. Domestic Law and National Policy. In addition to international law, 

the requirements in this Chapter are also based on the requirements of applicable U.S. statutes, 

such as the Detainee Treatment Act of 2005, or national policy, such as the requirements stated 

in applicable Executive Orders.

8.1.4.4 Analogous GPW and GC Provisions. In some cases, analogous provisions 

of the GPW and the GC may also be helpful in understanding the baseline rules for detention. 

For example, it may be appropriate to apply the principles of the GPW and GC, even when the 

relevant provisions do not apply as a matter of law.

19 

 16 See The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee 

Policy, Mar. 7, 2011 (“Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in 

the hands of opposing forces in an international armed conflict, is similarly important to the international legal 

framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 

75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United 

States has historically supported. Our adherence to these principles is also an important safeguard against the 

mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of 

legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an 

international armed conflict, and expects all other nations to adhere to these principles as well.”).

17 Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard G. Lugar, 

Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112th Congress, First 

Session, 53, 57 (Jun. 28, 2011) (“As a matter of international law, the administration’s statement is likely to be 

received as a statement of the U.S. Government’s opinio juris as well as a reaffirmation of U.S. practice in this area. 

The statement is therefore also likely to be received as a significant contribution to the crystallization of the 

principles contained in Article 75 as rules of customary international law applicable in international armed conflict. 

... The U.S. statement, coupled with a sufficient density of State practice and opinio juris, would contribute to 

creation of the principles reflected in Article 75 as rules of customary international law, which all States would be 

obligated to apply in international armed conflict.”).

18 Refer to § 19.20.2.1 (The United States and AP II).

19 For example, George W. Bush, Memorandum: Humane Treatment of Taliban and al Qaeda Detainees ¶5 (Feb. 7, 

2002) (“I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces 

requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, 

in a manner consistent with the principles of Geneva.”).
513

In addition, as a general matter, analogous provisions of the GPW and GC may be helpful 

for understanding the requirements in international law for conducting detention operations 

because the baseline standards for such operations during armed conflict are not more restrictive 

upon States than the requirements with respect to POWs and civilian internees under the GPW 

and GC, respectively.20

In this Chapter, cross-references to sections that address analogous GPW and GC 

requirements are used for the purposes described above.

8.1.4.5 Copenhagen Process on the Handling of Detainees in International 

Military Operations. From 2007 to 2012, U.S. representatives participated, along with those of 

23 other States and from several international organizations, in a process led by the Government 

of Denmark to formulate principles and guidelines on the handling of detainees in international 

military operations.21 Participants in the Copenhagen Process sought to develop principles to 

guide the implementation of the existing obligations with respect to detention in international 

military operations and to promote best practices.22 The Copenhagen Process Principles and 

Guidelines is not a text of a legally binding nature.23

 20 For example, In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s 

Detention Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 1 (D.D.C., Mar. 13, 2009) 

(“The laws of war have evolved primarily in the context of international armed conflicts between the armed forces 

of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed 

conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing 

international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has 

authorized for the current armed conflict. ... The President also has the authority under the AUMF [Authorization 

for the Use of Military Force] to detain in this armed conflict those persons whose relationship to al-Qaida or the 

Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them 

detainable.”).

21 Copenhagen Process: Principles and Guidelines ¶I (“The Copenhagen Process on the Handling of Detainees in 

International Military Operations (The Copenhagen Process) was launched on 11 October 2007 and was concluded 

in Copenhagen on 19 October 2012. Representatives from Argentina, Australia, Belgium, Canada, China, Denmark, 

Finland, France, Germany, India, Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South Africa, 

Sweden, Tanzania, the Netherlands, Turkey, Uganda, the United Kingdom, and the United States of America 

participated in The Copenhagen Process meetings. Representatives of the African Union (AU), the European Union 

(EU), the North Atlantic Treaty Organisation (NATO), the United Nations (UN), and the International Committee of 

the Red Cross (ICRC) also attended The Copenhagen Process meetings as observers. Representatives of civil 

society were also consulted at various stages of The Copenhagen Process;”).

22 Copenhagen Process: Principles and Guidelines ¶II (“During The Copenhagen Process meetings participants –

while not seeking to create new legal obligations or authorizations under international law – confirmed the desire to 

develop principles to guide the implementation of the existing obligations with respect to detention in international 

military operations; ... Participants were also inspired by the good practices that States and organisations have 

developed in international military operations;”).

23 Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶16.2 (“This savings clause 

also recognises that The Copenhagen Process Principles and Guidelines is not a text of a legally binding nature and 

thus, does not create new obligations or commitments. Furthermore, The Copenhagen Process Principles and 

Guidelines cannot constitute a legal basis for detention. Although some language, e.g., Principle 2, may reflect legal 

obligations in customary and treaty law, The Copenhagen Process Principles and Guidelines are intended to reflect 

generally accepted standards. In such instances, the applicability and binding nature of those obligations is 

established by treaty law or customary international law, as applicable, and not by The Copenhagen Process 

Principles and Guidelines. Since The Copenhagen Process Principles and Guidelines were not written as a 
514

The Copenhagen Process Principles and Guidelines are intended to apply to international 

military operations in the context of non-international armed conflicts and peace operations; they 

are not intended to address international armed conflicts.24

8.2 HUMANE TREATMENT OF DETAINEES

Detainees shall in all circumstances be treated humanely and protected against any cruel, 

inhuman, or degrading treatment. This requirement has been reflected in international law,25

domestic law,26 national policy,27 and DoD policies.28 Violations of the requirement to treat 

detainees humanely may be violations of criminal law, although it is not a purpose of this section 

to address liability under criminal law.

8.2.1 Protection Against Violence, Torture, and Cruel Treatment. Detainees must be 

protected against violence to life and person, in particular murder of all kinds, mutilation, cruel 

treatment, torture, and any form of corporal punishment.29

 

restatement of customary international law, the mere inclusion of a practice in The Copenhagen Process Principles 

and Guidelines should not be taken as evidence that States regard the practice as required out of a sense of legal 

obligation.”).

24 Copenhagen Process: Principles and Guidelines ¶IX (“The Copenhagen Process Principles and Guidelines are 

intended to apply to international military operations in the context of non-international armed conflicts and peace 

operations; they are not intended to address international armed conflicts;”).

25 GWS art. 3 (requiring that “[p]ersons taking no active part in the hostilities, including members of armed forces 

who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, 

shall in all circumstances be treated humanely”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).

26 42 U.S.C. § 2000dd (“No individual in the custody or under the physical control of the United States Government, 

regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or 

punishment.”).

27 See, e.g., Executive Order 13491, Ensuring Lawful Interrogations, 74 FEDERAL REGISTER 4893, 4894 (Jan. 22,

2009) (“Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the 

Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other 

laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in 

all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of 

all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and 

degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, 

employee, or other agent of the United States Government or detained within a facility owned, operated, or 

controlled by a department or agency of the United States.”); George W. Bush, Memorandum: Humane Treatment 

of Taliban and al Qaeda Detainees ¶5 (Feb. 7, 2002) (“I hereby reaffirm the order previously issued by the 

Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the 

extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”).

28 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will be 

treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law 

of war. The humane treatment requirements in this section apply during all military operations, however 

characterized.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.1 (Sept. 5, 2006) 

(“All detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S. 

policy.”); 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.b (“All prisoners will receive humane treatment 

without regard to race, nationality, religion, political opinion, sex, or other criteria.”).

29 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “violence to life and 

person, in particular murder of all kinds, mutilation, cruel treatment and torture”); GWS-SEA art. 3 (same); GPW art. 
515

8.2.2 Protection Against Humiliating or Degrading Treatment. Detainees must be 

protected against outrages upon personal dignity, in particular, humiliating and degrading 

treatment.30

8.2.2.1 Protection Against Rape, Enforced Prostitution, and Other Indecent

Assault. Detainees must be protected against rape, forced prostitution, and other indecent

assault.31 Indecent assault is generally referred to today as sexual assault.32

8.2.2.2 Protection Against Public Curiosity. Detainees must be protected against 

insults and public curiosity.33 For example, displaying detainees publicly with the purpose of 

exposing them to ridicule and humiliation is prohibited.34 

8.2.2.3 DoD Practice of Generally Prohibiting Taking Photographs Without 

Authorization. In order to protect detainees against public curiosity, among other reasons, DoD 

policy has generally prohibited the taking of photographs of detainees except for authorized 

purposes.35

8.2.3 Prohibition Against Biological or Medical Experiments. Medical or biological 

 

3 (same); GC art. 3 (same). Consider AP I art. 75(2)(a) (prohibiting with respect to persons who are in the power of 

a Party to the conflict “[v]iolence to the life, health, or physical or mental well-being of persons, in particular: (i) 

Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal punishment; and (iv) [Mutilation];”) 

(brackets in original); AP II art. 4(2) (prohibiting with respect to persons who do not take a direct part or who have 

ceased to take part in hostilities “[v]iolence to the life, health and physical or mental well-being of persons, in 

particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;”).

30 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “outrages upon personal 

dignity, in particular, humiliating and degrading treatment;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 

(same).

31 Consider AP I art. 75(2)(b) (prohibiting with respect to persons who are in the power of a Party to the conflict 

“[o]utrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any 

form of indecent assault”); AP II art. 4(2)(e) (prohibiting “[o]utrages upon personal dignity, in particular humiliating 

and degrading treatment, rape, enforced prostitution and any form of indecent assault;”). Compare § 9.5.1 (Respect 

for Their Persons and Honor); § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).

32 BLACK’S LAW DICTIONARY (9th ed., 2009) (“indecent assault. See sexual assault (2) under assault.”).

33 DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(2) (Aug. 19, 2014) (“All detainees will be respected as 

human beings ... . They will be protected against ... public curiosity, ... .”); DOD DIRECTIVE 2310.01E, The 

Department of Defense Detainee Program, ¶E4.1.1.3 (Sept. 5, 2006) (“All detainees will be respected as human 

beings. They will be protected against ... public curiosity ... .”); Chairman’s Commentary to the Copenhagen 

Process: Principles and Guidelines, ¶2.3 (“Furthermore, humane treatment implies that detainees will be protected 

from insults and public curiosity.”).

34 Compare § 9.5.3 (Protection Against Insults and Public Curiosity).

35 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.d (“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 EPW, 

CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Internment Facility 

commander’s chain of command.”).
516

experiments on detainees are prohibited.36

8.2.4 Threats to Commit Inhumane Treatment. Threats to commit the unlawful acts 

described above (i.e., violence against detainees, or humiliating or degrading treatment, or 

biological or medical experiments) are also prohibited.37 This prohibition may be understood to 

arise separately (i.e., as a distinct prohibition against certain threats), or it may be understood to 

result when such threats themselves constitute a form of torture or other abuse.38

8.2.5 Duty to Protect Detainees. Detainees should be protected not only against unlawful 

acts by agents of the Detaining Power, but also against unlawful acts from others, including other

detainees or the civilian population.39

8.2.6 No Adverse Distinction. Detainees shall be treated humanely without any adverse 

distinction founded on race, color, religion or faith, sex, birth or wealth, national or social origin, 

political or other opinion, or any other similar criteria.40

 36 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.1 (“[The principle 

requiring humane treatment of detainees] also incorporates the prohibition against torture and other forms of cruel, 

inhuman or degrading treatment or punishment, the prohibition against corporal and collective punishment and 

medical experiments; and includes threats to commit the foregoing acts.”). Compare § 9.5.2.4 (No Physical 

Mutilation or Medical, Scientific, or Biological Experiments); § 10.5.1.1 (Measures of Physical Suffering, 

Extermination, or Other Brutality).

37 Consider AP I art. 75(2)(e) (prohibiting with respect to persons who are in the power of a Party to the conflict 

“[t]hreats to commit any of the foregoing acts,” which include “(a) Violence to the life, health, or physical or mental 

well-being of persons, in particular: (i) Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal 

punishment; and (iv) [Mutilation]; (b) Outrages upon personal dignity, in particular humiliating and degrading 

treatment, enforced prostitution and any form of indecent assault;”); AP II art. 4(2)(h) (prohibiting with respect to 

persons who do not take a direct part or who have ceased to take part in hostilities “[t]hreats to commit any of the 

foregoing acts,” which include (a) violence to the life, health and physical or mental well-being of persons, in 

particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment and (b) 

outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and 

any form of indecent assault).

38 See, e.g., 18 U.S.C. § 2340 (defining “torture” to include “severe mental pain or suffering” caused by or resulting 

from “(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the 

administration or application, or threatened administration or application, of mind-altering substances or other 

procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) 

the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the 

administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the 

senses or personality;”) (emphasis added).

39 Compare § 9.5.2 (Protection Against Acts of Violence or Intimidation).

40 GWS art. 3 (“Persons taking no active part in the hostilities, including members of armed forces who have laid 

down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all 

circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, 

birth or wealth, or any other similar criteria.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). 

Consider AP I art. 75(1) (“In so far as they are affected by a situation referred to in Article 1 of this Protocol, 

persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under 

the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a 

minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, 

language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on 

any other similar criteria.”); AP II art. 2(1) (“This Protocol shall be applied without any adverse distinction founded 
517

Special consideration for more vulnerable categories of detainees is consistent with the 

requirement that detainees must be humanely treated without adverse distinction.41

Distinction based on the above criteria may also be made so long as it is not adverse and 

it is made to advance legitimate interests, such as maintaining order in the camp.42

8.3 SECURITY MEASURES

8.3.1 Searches. Although detainees must always be treated humanely, detainees and their 

property may be searched and secured, when necessary for security reasons and intelligence 

purposes.43

The dignity and honor of the detainee being searched should be protected to the greatest 

degree possible under the circumstances.44 The person conducting the search should avoid doing 

or saying anything likely to be regarded as indecent. In some circumstances, it may be 

appropriate for a witness to observe the search so as to protect both the person being searched 

from abuse and the person conducting the search from unfounded accusations of abuse.

8.3.1.1 Search of Female Detainees. It is appropriate for female detainees to be 

searched by female personnel. This practice helps reduce the risk of accusations of indecent 

behavior.

8.3.2 Search of Detainee Property. Items in the possession of detainees may be removed 

and searched for security and intelligence purposes.

45

8.3.3 Securing Detainees With Handcuffs and Other Security Devices. When necessary 

for security reasons, detainees may be secured temporarily with handcuffs, flex cuffs, blindfolds, 

or other security devices.46

 

on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or 

other status, or on any other similar criteria (hereinafter referred to as ‘adverse distinction’) to all persons affected by 

an armed conflict as defined in Article 1.”).

41 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.4 (“The principle 

of humane treatment of all persons requires that special consideration be given to the treatment of detainees who 

may be vulnerable in this context, such as women, children, the aged and those with disabilities. Such special 

consideration is consistent with the requirement that detainees should be humanely treated without adverse 

distinction.”).

42 Compare § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction); 

§ 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief); § 10.5.5 (No Adverse 

Distinction Based on Race, Religion, or Political Opinion).

43 Compare § 9.6 (Security Measures With Respect to POWs).

44 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

45 Refer to § 10.18.2 (Articles of Personal or Sentimental Value).

46 See also Copenhagen Process: Principles and Guidelines, ¶2.2 (“Sensory deprivation of persons who are 

detained may in some circumstances amount to ill-treatment if used as a form of punishment or to inflict suffering. 

However, sensory deprivation may not in itself amount to ill-treatment as such if the purpose is to ensure the safety 

of the detainee or of others. For example, using earmuffs during transportation to protect a detainee’s hearing will 
518

8.3.4 Use of Force to Maintain Order and to Prevent Escape. Physical force is not to be 

used against a detained person except in circumstances where such force is necessary and 

proportionate.47

As with POWs, the use of weapons against detainees, 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.48 For example, detainees should not be 

fired upon if they are apprehended within the camp limits while making preparations to escape, 

and there is no risk of escape or harm to anyone.

8.3.4.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Non-lethal 

weapons may be employed to control rioting detainees or to prevent their escape. In particular, 

the use of riot control agents to control rioting detainees is not prohibited.49

If the use of deadly force is warranted and authorized against detainees, there is no legal

requirement to employ non-lethal weapons before resort to deadly force.

50

8.4 INTERROGATION

The law of war does not prohibit interrogation of detainees, but interrogation must be 

conducted in accordance with the requirements for humane treatment. 

8.4.1 Humane Treatment During Interrogation. Interrogation must be carried out in a 

manner consistent with the requirements for humane treatment, including the prohibitions against 

torture, cruelty, degrading treatment, and acts or threats of violence.

51

In addition to the legal prohibitions on torture or other illegal methods of interrogation, 

practical considerations have also strongly counseled against such methods.52

 

not amount to ill-treatment. Similarly, sensory deprivation undertaken as a reasonable security measure such as 

blindfolding temporarily a detainee to protect the identity of another detainee or for reasons of operational safety 

will not amount to ill-treatment.”). Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).

47 See Copenhagen Process: Principles and Guidelines, ¶6 (“Physical force is not to be used against a detained 

person except in circumstances where such force is necessary and proportionate.”).

48 Compare § 9.22.6 (Use of Force to Maintain Order and to Prevent Escape).

49 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

50 Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly 

Force Is Warranted).

51 Refer to § 8.2 (Humane Treatment of Detainees).

52 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation, 1-8 (Sept. 28, 1992) 

(“Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation 

sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage 

subsequent collection efforts and can induce the source to say what he thinks the interrogator wants to hear. 

Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while 

undermining domestic and international support for the war effort. It also may place US and allied personnel in 

enemy hands at a greater risk of abuse by their captors.”).
519

8.4.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose 

additional requirements on the interrogation of detainees. 

8.4.2.1 Only Treatment or Techniques of Interrogation Authorized by and Listed 

in the U.S. Army Field Manual on Intelligence Interrogation. No person in the custody or under 

the effective control of the Department of Defense or under detention in a Department of 

Defense facility shall be subject to any treatment or technique of interrogation not authorized by 

and listed in the United States Army Field Manual on Intelligence Interrogation.53 The Army 

has published field manuals on interrogation for many years.

54

8.5 ADEQUATE FOOD, DRINKING WATER, AND CLOTHING

Detainees shall be provided with adequate food, drinking water, and clothing.

8.5.1 Food for Detainees. Daily food rations for detainees shall be sufficient in quantity, 

quality, and variety to keep detainees in a good state of health or in any event no worse than that 

afforded the local civilian population.

55

8.5.1.1 Accounting for the Customary Diet. DoD practice has been to take 

account of the customary diet of the internees.56 For example, the detainee’s cultural and 

religious requirements have been considered in determining and ensuring the appropriate diet.

Drinking Water. Sufficient drinking water shall be supplied to detainees.

57 8.5.2 

8.5.3 Clothing. As needed, detainees shall be supplied with sufficient clothing, 

underwear, and footwear that is appropriate for the climate.58

8.6 GENERAL CONDITIONS OF DETENTION FACILITIES

Detainees shall be afforded, to the same extent as the local civilian population, safeguards 

as regards health and hygiene and protection against the rigors of the climate and the dangers of 

 53 PUBLIC LAW 109-163, § 1402(a) (Jan. 6, 2006), codified at 10 U.S.C. § 801 note (“No person in the custody or 

under the effective control of the Department of Defense or under detention in a Department of Defense facility 

shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army 

Field Manual on Intelligence Interrogation.”); PUBLIC LAW 109-148, § 1002(a) (Dec. 30, 2005), codified at 10 

U.S.C. § 801 note (same).

54 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 2-22.3, Human Intelligence Collector Operations (Sept. 

6, 2006); DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (Sept. 28, 1992); 

DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (May 8, 1987).

55 Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local 

civilian population, be provided with food and drinking water and be afforded safeguards as regards health and 

hygiene and protection against the rigours of the climate and the dangers of the armed conflict;”). Compare § 9.13.1

(Food for POWs); § 10.13.1 (Food for Internees).

56 Compare § 9.13.1.1 (Accounting for the Habitual Diet); § 10.13.1.1 (Accounting for the Customary Diet).

57 Compare § 9.13.2 (Drinking Water); § 10.13.2 (Drinking Water).

58 Compare § 9.13.4 (Clothing for POWs); § 10.13.4 (Clothing of Internees).
520

the armed conflict.59

8.6.1 Safeguards as Regards Health and Hygiene. The obligation to afford safeguards as 

regards health and hygiene would include taking sanitary measures necessary to ensure the 

cleanliness and healthfulness of camps and to prevent epidemics. For example, the DoD practice 

has been to give detainees medical examinations upon arrival at an internment facility, disinfect 

them, and provide them with any necessary inoculations. In addition, quarters should be kept 

free from vermin, and detainees suffering from contagious diseases should be placed in 

quarantine as needed.60

8.6.2 Protection Against the Rigors of Climate. The obligation to afford protection 

against the rigors of climate would include ensuring that detention facilities are adequately 

heated, lighted, and protected against dampness.61

8.6.3 Protection From the Dangers of Armed Conflict. Detention facilities shall not be

located close to the combat zone.

62

8.6.4 No Prohibition Against Detention Aboard Ships. Provided the above requirements 

are met, there is no prohibition against the humane detention of persons on ships.63 The GPW 

generally requires that POWs be interned on premises located on land.64

8.7 SEGREGATION OF DETAINEES

Detainees may be segregated into camps or camp compounds according to their 

nationality, language, and customs, and the Detaining Power may use other criteria to segregate 

detainees for administrative, security, intelligence, medical, or law enforcement purposes.65

8.7.1 Gender and Family Segregation. Except when men and women of a family are 

accommodated together, women shall be held in quarters separated from those of men and shall 

 59 Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local 

civilian population, be provided with food and drinking water and be afforded safeguards as regards health and 

hygiene and protection against the rigours of the climate and the dangers of the armed conflict;”).

60 Compare § 9.11.5.1 (Necessary Sanitary Measures).

61 Compare § 10.11.3 (Conditions of Buildings and Quarters).

62 Consider AP II art. 5(2)(c) (“Places of internment and detention shall not be located close to the combat zone.”). 

Compare § 9.11.4.1 (Avoidance of the Combat Zone); § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).

63 For example, Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, THE NEW YORK 

TIMES, Jul. 6, 2011 (“In interrogating a Somali man for months aboard a Navy ship before taking him to New York 

this week for a civilian trial on terrorism charges, the Obama administration is trying out a new approach for dealing 

with foreign terrorism suspects. ... The administration notified the International Committee of the Red Cross of his 

capture, and a Red Cross representative flew out to the ship and met with him. That visit came about two months 

after his capture, during a four-day break between his interrogation for intelligence purposes and separate 

questioning for law-enforcement purposes.”).

64 Refer to § 9.11.3.1 (Location on Land).

65 Compare § 9.12 (Segregation of POWs); § 10.10 (Segregation of Internees).
521

be under the immediate supervision of women.66

8.8 MEDICAL ATTENTION

Wounded and sick detainees shall be cared for.67 They should receive the medical care 

and attention required by their condition.68 Medical or biological experiments on detainees are 

prohibited.69

8.8.1 Consent. Medical care should, wherever possible, be undertaken with the consent 

of the wounded or sick detainee.70 However, medical actions to preserve the health of the 

detainee may be justified even where the detainee refuses to provide consent.71 For example, it 

is not prohibited to administer vaccinations to detainees in order to preserve their health and to 

prevent epidemics. Similarly, it is not prohibited to order detainees to be fed, if they undertake a 

hunger strike.72

8.8.2 Blood Donation and Skin Grafting. Detainees may voluntarily consent to give 

blood for transfusion or skin for grafting for therapeutic purposes; such procedures should take 

place under conditions consistent with generally accepted medical standards and controls 

 66 Consider AP II art. 5(2) (“Except when men and women of a family are accommodated together, women shall be 

held in quarters separated from those of men and shall be under the immediate supervision of women;”); AP I art. 

75(5) (“Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters 

separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases 

where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated 

as family units.”).

67 GWS art. 3 (“The wounded and sick shall be collected and cared for.”); GWS-SEA art. 3 (same); GPW art. 3 

(same); GC art. 3 (same). Compare § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and 

Shipwrecked in the Power of a Party to the Conflict); § 7.16 (Protection of Civilians Who Are Wounded, Sick, 

Infirm, or Expectant Mothers).

68 See, e.g., Copenhagen Process: Principles and Guidelines ¶9 (“Wounded and sick detainees are to receive the 

medical care and attention required by their condition.”).

69 Refer to § 8.2.3 (Prohibition Against Biological or Medical Experiments).

70 For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7 (Jun. 6, 

2006) (“In general, health care will be provided with the consent of the detainee. To the extent practicable, 

standards and procedures for obtaining consent will be consistent with those applicable to consent from other 

patients. Standard exceptions for lifesaving emergency medical care provided to a patient incapable of providing 

consent or for care necessary to protect public health, such as to prevent the spread of communicable diseases, shall 

apply.”).

71 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.5 (“Medical assistance 

should, wherever possible, be undertaken with the consent of the wounded or sick detainee. However, medical 

actions to preserve the health of the detainee may be justified even where the detainee refuses to provide consent.”). 

Compare § 7.5.2.4 (Compulsory Medical Treatment).

72 For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7.1 (Jun. 6, 

2006) (“In the case of a hunger strike, attempted suicide, or other attempted serious self-harm, medical treatment or 

intervention may be directed without the consent of the detainee to prevent death or serious harm. Such action must 

be based on a medical determination that immediate treatment or intervention is necessary to prevent death or 

serious harm, and, in addition, must be approved by the commanding officer of the detention facility or other 

designated senior officer responsible for detainee operations.”).
522

designed for the benefit of both the donor and the recipient.

73 

8.9 ADMINISTRATION AND DISCIPLINE IN DETENTION FACILITIES

Detention facility commanders may establish rules for detainees in the detention facility 

and conduct disciplinary proceedings, subject to the requirements for humane treatment.74

8.9.1 Complaints. Detainees should be permitted to submit, without reprisal, complaints 

regarding their treatment or conditions of detention to the detaining authorities.75 Investigatory 

procedures and a practice of timely and effective investigations of credible complaints of 

maltreatment also help ensure that allegations regarding treatment or conditions of detention that 

may arise years after the detention can be addressed.76

8.10 CONTACTS WITH THE OUTSIDE WORLD

Subject to security measures, practical considerations, and other military necessities, 

detainees should be afforded appropriate contact with the outside world, including: (1) receipt of 

individual or collective relief; (2) correspondence; (3) communication with family; and (4) ICRC 

access.

8.10.1 Receipt of Individual or Collective Relief. Detainees shall be allowed to receive 

individual or collective relief.77

8.10.2 Correspondence. Detainees shall be allowed to send and receive letters and cards, 

 73 Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs for 

transplantation except where these acts are justified] may be made only in the case of donations of blood for 

transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, 

and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and 

controls designed for the benefit of both the donor and the recipient.”).

74 Compare § 9.27 (Disciplinary Proceedings and Punishment); § 10.28 (Disciplinary Proceedings and Punishment).

75 See Copenhagen Process: Principles and Guidelines ¶14 (“Detainees or their representatives are to be permitted 

to submit, without reprisal, oral or written complaints regarding their treatment or conditions of detention. All 

complaints are to be reviewed and, if based on credible information, be investigated by the detaining authority.”). 

Compare § 9.23.1 (POW Right to Make Requests and Complaints); § 10.21.1 (Internee Right to Present Petitions 

and Complaints).

76 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶14.2 (“The 

investigation of complaints permits the detaining authority to verify the validity of the complaint and, if verified, to 

rectify the situation giving rise to the complaint. Investigatory procedures and a practice of timely and effective 

investigations of credible complaints also helps ensure that allegations regarding treatment or conditions of 

detention that may arise years after the detention can be addressed. An independent and impartial authority should 

carry out such investigations, and the results of an investigation should be reported back to the complainant and the 

detaining authority. The investigator may be members of the military and should make recommendations based on 

the investigation it has carried out.”).

77 Consider AP II art. 5(1)(c) (“They shall be allowed to receive individual or collective relief;”).
523

the number of which may be limited by a competent authority if it deems necessary.78

8.10.3 Communication With Family. DoD practice has been, where practicable, to grant

detainees the means to communicate with family members (e.g., exchange of letters, phone calls, 

and video teleconferences with family, family visits).79

8.10.4 ICRC Access to Detainees. An impartial humanitarian body, such as the ICRC, 

may offer its services to the parties to the conflict.80

All departments and agencies of the Federal Government shall provide the International 

Committee of the Red Cross with notification of, and timely access to, any individual detained in 

any armed conflict in the custody or under the effective control of an officer, employee, or other 

agent of the U.S. Government or detained within a facility owned, operated, or controlled by a 

department or agency of the U.S. Government, consistent with Department of Defense 

regulations and policies.81

8.11 RELIGIOUS EXERCISE

Detainees shall be granted free exercise of religion, consistent with the requirements of 

detention.82 Detainees’ religious practices shall be respected.83 They shall be allowed to 

 78 Consider AP II art. 5(2)(b) (“They shall be allowed to send and receive letters and cards, the number of which 

may be limited by competent authority if it deems necessary;”). Compare § 9.20.2 (POW Correspondence Rights 

and Quota); § 10.23.2 (Internees’ Correspondence Rights and Quota).

79 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment 

includes: ... (b) ... appropriate contacts with the outside world (including, where practicable, exchange of letters, 

phone calls, and video teleconferences with immediate family or next of kin, as well as family visits).”). Compare

§ 9.20.2.3 (More Rapid Means of Correspondence in Appropriate Cases); § 10.23.2.3 (More Rapid Means of 

Correspondence in Appropriate Cases).

80 GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer 

its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).

81 Executive Order 13491, Ensuring Lawful Interrogations, §4(b), 74 FEDERAL REGISTER 4893, 4894 (Jan. 22, 2009)

(“All departments and agencies of the Federal Government shall provide the International Committee of the Red 

Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or 

under the effective control of an officer, employee, or other agent of the United States Government or detained 

within a facility owned, operated, or controlled by a department or agency of the United States Government, 

consistent with Department of Defense regulations and policies.”).

82 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will be 

treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law 

of war. The humane treatment requirements in this section apply during all military operations, however 

characterized. (1) Humane treatment includes: ... (e) Free exercise of religion, consistent with the requirements of 

detention.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶E4.1.1 (Sept. 5, 2006) 

(“All persons captured, detained, interned, or otherwise in the control of DoD personnel during the course of 

military operations will be given humane care and treatment from the moment they fall into the hands of DoD 

personnel until release, transfer out of DoD control, or repatriation, including: ... E4.1.1.2. Free exercise of religion, 

consistent with the requirements of detention;”). Compare § 9.15 (Religious Exercise by POWs); § 10.15 (Religious 

Exercise by Internees).

83 Consider AP I art. 75(1) (“Each Party shall respect the person, honour, convictions and religious practices of all 

such persons.”).
524

practice their religion and, if requested and appropriate, to receive spiritual assistance from 

persons, such as chaplains, performing religious functions.84

DoD practice has been for detainees to be provided religious materials of their faith (e.g., 

copies of religious texts) as well as time and other accommodations for religious exercise.85

8.12 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES

Detainees should be provided with reasonable access to intellectual, physical, and 

recreational activities.86 Such opportunity is increasingly important as detention occurs for 

longer periods of time.

Access to additional facilities for intellectual, physical, and recreational activities may be 

made contingent on compliance with camp rules.87 Education programs may be offered to 

discourage violent extremism.88

 84 Consider AP II art. 5(1)(d) (“They shall be allowed to practise their religion and, if requested and appropriate, to 

receive spiritual assistance from persons, such as chaplains, performing religious functions;”).

85 For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with 

President’s Executive Order on Detainee Conditions of Confinement, 25 (2009) (“All detainees [at Guantanamo] are

provided one Koran in the language of their choice, in addition to an Arabic Koran and TafSeer. All detainees are 

provided prayer beads, cap, rug, and current prayer schedule. These items are retained by all detainees regardless of 

disciplinary status, unless deliberately used for self-harm or as a weapon. ... Guards observe silence during all 

prayer times. A monthly prayer schedule is published and call to prayer is sounded five times daily in all camps. 

Prayer is led within each camp and block by a detainee-selected prayer leader. In Camps 2, 3, 5, 6, and Echo group 

prayer is typically conducted by detainees from their individual cells. When this occurs, the food tray access doors 

of the prayer leaders are lowered to facilitate call to prayer on each block/tier. At times when detainees are engaged 

in group or communal activities and prayer call sounds, prayer is led by prayer leaders in person. In Camps 4 and 

Iguana, group prayer is conducted in communal areas of the camps. At Camp 7, prayer is conducted individually in 

their cells. Guard movement and activity is limited to only those actions required to maintain security. Visual 

signals are placed on each block/tier signifying quiet time. Each detainee cell and common area includes an arrow 

pointing towards Mecca.”).

86 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment 

includes: ... (b) Reasonable access to the open air, reasonable educational and intellectual activities, ... .”); 

Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.3 (“Health and hygiene factors 

that need to be addressed include ... ensuring that detainees are permitted to engage in exercise regimes, including 

in the open air, ... .”). Compare § 9.16 (Intellectual, Physical, and Recreational Activities); § 10.16 (Intellectual, 

Physical, and Recreational Activities).

87 For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with 

President’s Executive Order on Detainee Conditions of Confinement, 11 (2009) (“Camp 4 [at Guantanamo], first 

occupied in February 2003, offers communal living, numerous recreation facilities, education and intellectual 

stimulation programs, and houses detainees considered the most compliant with camp rules. Unlike other camps, 

Camp 4 offers communal living in open-bay barracks with open access to fresh air in outdoor recreation and 

communal facilities throughout the day. It includes additional access to large recreation areas equipped with a 

basketball court, volleyball court, and soccer facility, during a specified four-hour period each day. Camp 4 has a 

media center equipped with satellite television, bench seating, and a classroom used to teach literacy and art.”).

88 For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for 

War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 137 (2008) 

(“For persons in detention in Iraq, MNF-I [Multi-National Force-Iraq] has a reintegration program to try to influence 

detainees not to join or rejoin the insurgency, but rather to reintegrate peacefully into society. This effort focuses on 
525

8.13 ADEQUATE WORKING CONDITIONS

If made to work, detainees shall have the benefit of working conditions and safeguards 

similar to those enjoyed by the local civilian population.89

8.13.1 Prohibition on Slavery. Slavery and the slave trade in all their forms are 

prohibited.90 For example, enforced prostitution is prohibited.91

8.14 PROCEDURES FOR DETENTION

8.14.1 Informing of Reasons for Detention. Detainees shall be informed promptly of the 

reasons for their detention in a language that they understand.92

A prompt notification should generally occur within 10 days of detention.

93 The 

notification should ensure that the detainee adequately understands the general reason for 

detention (e.g., security reasons, participation in hostilities or association with an armed group 

that is engaged in hostilities, suspect or witness in law enforcement proceedings).94 When 

feasible, more specific information should be provided to the detainee so that he or she may 

participate in subsequent review procedures from an informed position.95

 education. Detainees are provided access to moderate television, radio, and newspaper alternatives to extremist 

messages. The reintegration program for adults includes instruction in reading, writing, and mathematics. The 

program for juveniles includes both primary and secondary school instruction. In addition, detainees are offered 

classes on democracy, the Iraqi constitution, and the Iraqi government.”).

89 Consider AP II art. 5(1) (Persons deprived of their liberty for reasons related to an non-international armed 

conflict “shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by 

the local civilian population.”).

90 Consider AP II art. 4(2)(f) (prohibiting “slavery and the slave trade in all their forms;”).

91 Refer to § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault).

92 See Copenhagen Process: Principles and Guidelines, ¶7 (“Persons detained are to be promptly informed of the 

reasons for their detention in a language that they understand.”). Consider AP I art. 75(3) (“Any person arrested, 

detained or interned for actions related to the armed conflict shall be informed promptly, in a language he 

understands, of the reasons why these measures have been taken.”).

93 ICRC AP COMMENTARY 876 (¶3072) (“‘Promptly’: unfortunately this expression is rather imprecise. ... [I]t is 

difficult to determine a precise time limit, but ten days would seem the maximum period.”).

94 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶1.3 (“A person may be 

detained for a number of different reasons, including, posing a threat to the security of the military operation, for 

participating in hostilities, for belonging to an enemy organised armed group, for his or her own protection, or if the 

person is accused of committing a serious criminal offence.”).

95 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶7.1 (“Informing the 

detainee of the reasons for detention seeks to ensure that the detainee adequately understands the basis of detention, 

and enables the detainee’s participation in subsequent review procedures from an informed position. To the fullest 

extent feasible the reasons for detention should provide the detainee with information regarding the circumstances 

that form the basis for detention. Operational necessities or resource constraints, such as force protection or the 

availability of interpreters, may sometimes make it difficult to advise the detainee of the specific reasons for the 

detention at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be 

advised of the reasons for detention in a reasonable time, taking into account other essential tasks and resource 

limitations that may affect the detaining authority’s ability to inform the detainee. When feasible, more specific 
526

8.14.2 Review of Continued Detention for Security Reasons. DoD practice has been to 

review periodically the detention of all persons not afforded POW status or treatment.96 A 

detainee who has been deprived of liberty for security reasons is to have, in addition to a prompt 

initial review, the decision to detain reconsidered periodically by an impartial and objective 

authority that is authorized to determine the lawfulness and appropriateness of continued 

detention.97 

The authority conducting the review is not necessarily outside the military, and often 

would be a military commander.98

There is no fixed requirement regarding how often the review must occur, and the period 

between reviews will depend on a variety of factors, including: (1) operational necessities or 

resource constraints, such as force protection, the availability of interpreters, or large numbers of 

detainees; (2) the thoroughness of the review process; and (3) whether there is a true prospect 

that the legal or factual predicates justifying detention have changed.99

8.14.3 Release When the Circumstances Justifying Detention Have Ceased to Exist. 

 

information should be provided to the detainee so that he or she may participate in subsequent review procedures 

from an informed position.”).

96 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3i (Aug. 19, 2014) (“DoD personnel will 

review periodically the detention of all individuals in DoD custody or control who do not receive the protections 

afforded POWs.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.8 (Sept. 5, 2006) 

(“Detainees under DoD control who do not enjoy prisoner of war protections under the law of war shall have the 

basis for their detention reviewed periodically by a competent authority.”).

97 See Copenhagen Process: Principles and Guidelines ¶12 (“A detainee whose liberty has been deprived for 

security reasons is to, in addition to a prompt initial review, have the decision to detain reconsidered periodically by 

an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued 

detention.”). Compare § 10.9.2.3 (Reconsideration and Periodic Review); § 10.9.3.1 (Internment or Assigned 

Residence for Imperative Reasons of Security).

98 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.2 (“The ‘authority’ 

conducting the review must be objective and impartial but not necessarily outside the military. Although there is no 

requirement for the authority to be a judge or lawyer, he or she should be supported by a legal adviser. The 

authority must have sufficient information available to make an assessment of the legality and propriety of 

continued detention; and must consider both the legal and factual basis for detention. The authority must also be 

able to evaluate the relevant information and make relevant conclusions such as whether the detainee continues to 

constitute a threat to security. Furthermore, the authority must make decisions based on the circumstances of each 

specific case; and each decision must be taken with respect to the individual involved. The authority must have 

sufficient freedom to make a good faith judgment without any outside interference. In order for the review to be 

effective it is necessary that the reviewing authority has the power to determine the lawfulness and appropriateness 

of continued detention of the detainee.”).

99 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.3 (“Security 

detainees are to have their continued detention reviewed periodically or, where practicable, when new information 

becomes available. It is, however, difficult to provide a precise time limit to indicate when the decision to detain 

should be reconsidered or further reviewed. Operational necessities or resource constraints, such as force protection, 

the limited availability of interpreters or large case-loads of review sometimes make it difficult to reconsider the 

decision to detain frequently or at short intervals. Reviews should, however, occur as often as necessary, generally 

every six months. The length of time between reviews may also depend on the thoroughness of the review process 

and on whether there is a true prospect that the legal or factual predicates justifying detention have changed. More 

thorough reviews may require more resources and take place over longer intervals.”).
527

Except in cases of arrest or detention for penal offenses, such persons shall be released with the 

minimum delay possible and in any event as soon as the circumstances justifying the arrest, 

detention, or internment have ceased to exist.100

8.14.3.1 Participants in Hostilities or Persons Belonging to Armed Groups That 

Are Engaged in Hostilities. For persons who have participated in hostilities or belong to armed 

groups that are engaged in hostilities, the circumstance that justifies their continued detention is 

the continuation of hostilities.101 Thus, release of such persons is generally only required after 

the conflict has ceased.102 As a matter of policy, release of lawfully detained persons often 

occurs before the conclusion of hostilities.103

However, even after hostilities have ceased, other circumstances may warrant continued 

detention of such persons. For example, persons who have participated in hostilities on behalf of 

non-State armed groups might be detained pending law enforcement proceedings and, after a 

conviction, pursuant to a lawful sentence.104

8.14.3.2 Safe and Orderly Release. If it is decided to release persons deprived of 

their liberty, necessary measures to ensure their safety shall be taken by those so deciding.105 

For example, detainees should not be released into a situation in which the detainee would be 

attacked by hostile elements upon release.106

 100 Consider AP I art. 75(3) (“Except in cases of arrest or detention for penal offences, such persons shall be released 

with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or 

internment have ceased to exist.”). Compare § 9.37 (Release and Repatriation After Hostilities); § 10.9.5 (Release 

As Soon As Reasons for Internment No Longer Exist).

101 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality) (“we understand Congress’ grant of authority 

[under the AUMF] for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration 

of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”); Al-Bihani v. 

Obama, 590 F.3d 866, 874 (2010) (rejecting the argument that Taliban fighters must be released because the conflict 

had formally concluded as a principle that “would make each successful campaign of a long war but a Pyrrhic 

prelude to defeat” and under which “the victors would be commanded to constantly refresh the ranks of the fledgling 

democracy’s most likely saboteurs.”). Cf. Stewart v. Kahn, 78 U.S. 493, 507 (1870) (“In the latter case, the [war] 

power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently 

the power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from its 

rise and progress.”).

102 Compare § 9.37 (Release and Repatriation After Hostilities).

103 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m(2) (Aug. 19, 2014) (“Unprivileged 

belligerents may be released or transferred while active hostilities are ongoing if a competent authority determines 

that the threat the individual poses to the security of the United States can be mitigated by other lawful means. Such 

mitigation may involve credible assurances that a receiving country will take appropriate steps to mitigate any threat 

the detainee poses to the security of the United States and its interests, parole agreements by the detainee, or other 

agreements with the government of the receiving State.”).

104 Compare § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).

105 Consider AP II art. 5(4) (“If it is decided to release persons deprived of their liberty, necessary measures to 

ensure their safety shall be taken by those so deciding.”).

106 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.10 (“Detaining 

authorities are to ensure that necessary measures are taken to ensure the safety of released detainees. For example, a 
528

The obligation to release detainees in a safe and orderly manner, as well as operational 

necessities (e.g., force protection) and logistical constraints (e.g., the limited availability of 

transport), may make it difficult to release a detainee at the precise moment that the 

circumstances justifying detention cease.107 Continued detention in order to facilitate a safe and 

orderly release may be necessary.108

8.14.4 Transfers of Detainees. Because the transfer of a detainee from U.S. custody to 

another entity or State may implicate certain U.S. legal obligations or policies, detainees should 

not be transferred to another State or entity without proper authorization.109

8.14.4.1 U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would 

Likely Be Tortured. U.S. policy provides that no person shall be transferred to another State if it 

is more likely than not that the person would be tortured in the receiving country, regardless of 

whether the person is physically present in the United States or whether such transfer would 

otherwise be consistent with applicable law.

110

8.15 NATIONAL ACCOUNTABILITY FOR DETENTION

A proper accounting of detainees is an important part of a State’s implementation of the 

requirements of humane treatment.

8.15.1 Registration of Detainees. The detaining authority should register detainees 

 

detainee is not to be released in a location where the conditions are such that the detainee may be threatened or 

attacked by hostile or malign elements upon release.”).

107 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.8 (“It is difficult to 

provide a precise time limit to indicate how soon a detainee should be released after the circumstances justifying 

detention have ceased to exist. Operational necessities, such as force protection, the safety of a detainee, or the 

limited availability of transport sometimes make it difficult to release a detainee at the precise moment that the 

circumstances justifying detention cease.”).

108 Compare § 9.37.3 (Without Delay).

109 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m (Aug. 19, 2014) (“No detainee will be 

released, repatriated, or transferred out of DoD custody or control except in accordance with applicable law, 

regulation, policy, and other issuances.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee 

Program, ¶4.6 (Sept. 5, 2006) (“No detainee shall be released or transferred from the care, custody, or control of a 

DoD Component except in accordance with applicable law, regulation, policy, and other issuances.”).

110 See, e.g., Munaf v. Geren, 553 U.S. 674, 702 (2008) (“Indeed, the Solicitor General states that it is the policy of 

the United States not to transfer an individual in circumstances where torture is likely to result.”); PUBLIC LAW 105-

277, § 2242(a) (Oct. 21, 1998), codified at 8 U.S.C. § 1231 note (“It shall be the policy of the United States not to 

expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial 

grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person 

is physically present in the United States.”). One of the formal understandings of the United States made upon 

ratification of the Convention Against Torture provided that “the United States understands the phrase, ‘where there 

are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of 

the Convention, to mean ‘if it is more likely than not that he would be tortured.’” United States, Statement on 

Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 

Dec. 10, 1984, Oct. 21, 1994, 1830 UNTS 320, 322.
529

promptly.

111 Detainees should be registered within a reasonable time, taking into account other 

essential tasks and resource limitations that may affect the detaining authority’s ability to register 

detainees.112

Registration of detainees assists in ensuring that all detainees can be accounted for and 

that allegations of illegal detention can be addressed.113 DoD practice has been to register 

detainees with the National Detainee Reporting Center that is also used to account for the 

detention of POWs under the GPW and protected persons under the GC.114

8.15.2 Records of Detainee Property. DoD practice has been for property in the 

possession of detainees to be inventoried, and for records of such property to be maintained in 

order to maintain accountability of it (e.g., to prevent theft) and to ensure its lawful 

disposition.115

8.16 CRIMINAL PROCEDURE AND PUNISHMENT

The passing of sentences and the carrying out of executions without previous judgment 

pronounced by a regularly constituted court affording all the judicial guarantees that are 

recognized as indispensable by civilized peoples are prohibited.116 

 111 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8 (“Persons detained are 

to be promptly registered by the detaining authority.”). For example, DOD DIRECTIVE 2310.01E, DoD Detainee 

Program, ¶3d (Aug. 19, 2014) (“Detainees will be registered, and property in their possession will be inventoried. 

Records of their detention and such property will be maintained according to applicable law, regulation, policy, and

other issuances. (1) DoD Components will maintain full accountability for all detainees under DoD control. 

Detainees will be assigned an Internment Serial Number (ISN) normally within 14 days after their capture by, or 

transfer to, the custody or control of DoD personnel, barring exceptional circumstances.”); DOD DIRECTIVE 

2310.01E, The Department of Defense Detainee Program, ¶4.4.1 (Sept. 5, 2006) (“Detainees shall be assigned an 

Internment Serial Number (ISN) as soon as possible after coming under DoD control, normally within 14 days of 

capture. DoD Components shall maintain full accountability for all detainees under DoD control.”).

112 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.3 (“It is difficult to 

provide a precise time limit to indicate when a detainee should be registered. Operational necessities or resource 

constraints, such as force protection, or the limited availability of interpreters sometimes make it difficult to register 

a detainee at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be 

registered within a reasonable time, taking into account other essential tasks and resource limitations that may affect 

the detaining authority’s ability to register detainees.”).

113 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.1 (“Registration of 

detainees assists in ensuring that all detainees can be accounted for and that allegations of (illegal) detention can be 

addressed.”).

114 For example, Declaration of Vice Admiral Robert S. Harward, ¶8 (Dec. 17, 2010), attached to Hamidullah v. 

Gates, Response to Order to Show Cause and Motion to Dismiss, Civil Action No. 10-CV-758 (D.D.C. Dec. 17, 

2010) (“DoD has registered individuals held under its control at the DFIP with the National Detainee Reporting 

Center (‘NDRC’) -- which accounts for persons who receive Internment Serial Numbers issued by DoD while in 

DoD’s custody -- and with the International Committee of the Red Cross (‘ICRC’).”). Compare § 9.31.4 (U.S. 

Practice in Reporting to the ICRC Central Tracing Agency); § 10.31.4 (U.S. Practice in Reporting to the ICRC 

Central Tracing Agency).

115 Compare § 9.7.4 (Money and Articles of Value); § 10.19.1 (Money and Valuables in the Internee’s Possession).

116 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “the passing of 

sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court 
530

The specific rules addressed in this section may be understood as examples of such 

guarantees.117

8.16.1 No Private Rights Created by This Section in Particular. As with all other sections 

of this manual, Section 8.16 does not create any private rights.118 The competent prosecuting 

authorities shall ensure that the requirements reflected in this section are met.

8.16.2 General Limits on Punishments. 

8.16.2.1 Individual Penal Responsibility and No Collective Punishment. No one 

shall be convicted of an offense except on the basis of individual penal responsibility.119 

Collective punishments are prohibited. Collective punishments have been specifically 

prohibited with respect to POWs, protected persons under the GC, and inhabitants of occupied 

territory, and also in connection with non-international armed conflict.120 This prohibition 

includes penalties of any kind inflicted upon persons or groups of persons for acts that these 

persons have not committed, including administrative penalties.

121 Punishment on the basis of 

conspiracy, joint criminal enterprise, and other theories of secondary liability are not prohibited

by this rule.

122

8.16.2.2 No Crime or Punishment Without Prior Law. No one shall be accused or 

convicted of a criminal offense on account of any act or omission that did not constitute a 

criminal offense under the national or international law to which he or she was subject at the 

time when it was committed; nor shall a heavier penalty be imposed than that which was 

 

affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”); GWS-SEA art. 3 

(same); GPW art. 3 (same); GC art. 3 (same). Consider AP I art. 75(4) (“No sentence may be passed and no penalty 

may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a 

conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles 

of regular judicial procedure, which include the following:”); AP II art. 6(2) (“No sentence shall be passed and no 

penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a 

court offering the essential guarantees of independence and impartiality.”).

117 ICRC AP COMMENTARY 878 (¶3084) (“Article 3 [of the 1949 Geneva Conventions] relies on the ‘judicial 

guarantees which are recognized as indispensable by civilized peoples’, while Article 75 [of AP I] rightly spells out 

these guarantees. Thus this article, and to an even greater extent, Article 6 of Protocol II (Penal prosecutions), gives 

valuable indications to help explain the terms of Article 3 on guarantees.”).

118 Refer to § 1.1.1 (Purpose).

119 Consider AP I art. 75(4)(a) (“No one shall be convicted of an offence except on the basis of individual penal 

responsibility;”); AP II art. 6(2)(b) (“No one shall be convicted of an offence except on the basis of individual penal 

responsibility;”).

120 Refer to § 9.26.6 (Prohibited Penalties); § 10.5.3.2 (Collective Penalties and Measures of Intimidation or 

Terrorism); § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory); § 17.6.7 (Prohibition on 

Collective Punishment).

121 GC COMMENTARY 225 (“This paragraph then lays a prohibition on collective penalties. This does not refer to 

punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of 

any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, 

for acts that these persons have not committed.”).

122 Refer to § 18.23 (Theories of Individual Criminal Liability).
531

applicable at the time when the criminal offense was committed; if, after the commission of the 

offense, provision is made by law for the imposition of a lighter penalty, the offender shall 

benefit thereby.123

8.16.2.3 No Repetition of Punishment. No one shall be prosecuted or punished by 

the same party for an offense in respect of which a final judgment acquitting or convicting that 

person has been previously pronounced under the same law and judicial procedure.124

8.16.2.4 Limitations on the Death Penalty. The death penalty shall not be 

pronounced on persons who were under the age of eighteen years at the time of the offense and 

shall not be carried out on pregnant women or mothers of young children.125

8.16.3 Rights of Defense and Trial Procedure. The procedure shall provide for an 

accused to be informed without delay of the particulars of the notice alleged against him or her 

and shall afford the accused before and during his or her trial all necessary rights and means of 

defense.126

8.16.3.1 Presumption of Innocence. Anyone charged with an offense is presumed 

innocent until proved guilty according to law.127

8.16.3.2 Right to Trial in Presence. Anyone charged with an offense shall have 

 123 Consider AP I art. 75(4)(c) (“No one shall be accused or convicted of a criminal offence on account of any act or 

omission which did not constitute a criminal offence under the national or international law to which he was subject 

at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time 

when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the 

imposition of a lighter penalty, the offender shall benefit thereby;”); AP II art. 6(2)(c) (“No one shall be accused or 

convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under 

the national or international law to which he was subject at the time when it was committed; nor shall a heavier 

penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after 

the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall 

benefit thereby;”).

124 Consider AP I art. 75(4)(h) (“No one shall be prosecuted or punished by the same Party for an offence in respect 

of which a final judgement acquitting or convicting that person has been previously pronounced under the same law 

and judicial procedure;”).

125 Consider AP II art. 6(4) (“The death penalty shall not be pronounced on persons who were under the age of 

eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young 

chidren [sic].”).

126 Consider AP I art. 75(4)(a) (“The procedure shall provide for an accused to be informed without delay of the 

particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary 

rights and means of defence;”); AP II art. 6(2)(a) (“The procedure shall provide for an accused to be informed 

without delay of the particulars of the offence alleged against him and shall afford the accused before and during his 

trial all necessary rights and means of defence;”).

127 Consider AP I art. 75(4)(d) (“Anyone charged with an offence is presumed innocent until proved guilty 

according to law;”); AP II art. 6(2)(d) (“Anyone charged with an offence is presumed innocent until proved guilty 

according to law;”).
532

the right to be tried in his or her presence.128

8.16.3.3 No Compulsory Self-Incrimination. No one shall be compelled to testify 

against himself or herself or to confess guilt.129

8.16.3.4 Right to Obtain and Examine Witnesses. Anyone charged with an 

offense shall have the right to examine, or have examined, the witnesses against him or her and 

to obtain the attendance and examination of witnesses on his or her behalf under the same 

conditions as witnesses against him or her.

130

8.16.3.5 Right to Have a Public Judgment. Anyone prosecuted for an offense 

shall have the right to have the judgment pronounced publicly.131

8.16.3.6 Advice on Appellate Procedure. A convicted person shall be advised on 

conviction of his or her judicial and other remedies, and of the time-limits within which they 

may be exercised.132

 128 Consider AP I art. 75(4)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”); 

AP II art. 6(2)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”).

129 Consider AP I art. 75(4)(f) (“No one shall be compelled to testify against himself or to confess guilt;”); AP II art. 

6(2)(f) (“No one shall be compelled to testify against himself or to confess guilt.”).

130 Consider AP I art. 75(4)(g) (“Anyone charged with an offence shall have the right to examine, or have examined, 

the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same 

conditions as witnesses against him;”).

131 Consider AP I art. 75(4)(i) (“Anyone prosecuted for an offence shall have the right to have the judgement 

pronounced publicly;”).

132 Consider AP I art. 75(4)(j) (“A convicted person shall be advised on conviction of his judicial and other remedies 

and of the time-limits within which they may be exercised.”); AP II art. 6(3) (“A convicted person shall be advised 

on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.”).
533

IX – Prisoners of War (POWs)

Chapter Contents

9.1 Introduction

9.2 General Principles Applicable to the Treatment of POWs

9.3 POW Status

9.4 National-Level GPW Implementation Measures

9.5 Humane Treatment and Basic Protections for POWs

9.6 Security Measures With Respect to POWs

9.7 POW Effects and Articles of Personal Use

9.8 Interrogation of POWs

9.9 Evacuation From Combat Areas

9.10 Transit or Screening Facilities

9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living 

Conditions

9.12 Segregation of POWs

9.13 Food, Water, Tobacco, and Clothing for POWs

9.14 Medical Attention for Interned POWs

9.15 Religious Exercise by POWs

9.16 Intellectual, Physical, and Recreational Activities

9.17 Canteens for POWs

9.18 Financial Resources of POWs

9.19 POW Labor

9.20 POW Correspondence and Relief Shipments

9.21 Private Legal Matters of POWs

9.22 Internal Discipline of POW Camps

9.23 POW Requests, Complaints, and Reports About Conditions of Captivity

9.24 POW Representatives

9.25 POW Escapes

9.26 General Principles Applicable to POW Discipline

9.27 Disciplinary Proceedings and Punishment

9.28 Judicial Proceedings and Punishment

9.29 Transfer of POWs From the POW Camp

9.30 Transfer of POWs to the Custody of Another Detaining Power

9.31 National Accounting of the Detention of POWs

9.32 Role of the Protecting Power in the GPW

9.33 Access to POWs by the Protecting Powers, ICRC, and Relief Organizations

9.34 Death of POWs

9.35 Exchanges and Other Release and Repatriation of POWs During Hostilities

9.36 Direct Repatriation and Accommodation in Neutral Countries During 

Hostilities

9.37 Release and Repatriation After Hostilities

9.38 Procedure on Release and Repatriation After Hostilities

9.39 Code of Conduct for U.S. Armed Forces
534

9.1 INTRODUCTION

This Chapter addresses the treatment of prisoners of war (POWs). 

9.1.1 Brief History of POW Law. States have made significant humanitarian advances in 

the international law relating to the treatment of POWs.

1

 Before the modern law of war, POWs 

were often put to death, held for ransom or as hostages, or sold into slavery.

Gradually, protections for POWs, such as providing for their repatriation at the end of 

conflict without ransom, were concluded in treaties.2

 The United States concluded bilateral 

treaties for the humane treatment and protection of POWs, written with a view towards 

forbidding abuses that occurred during the Revolutionary War.3

 Eventually multilateral treaties 

for the protection of POWs were concluded, which also drew from the experience of POWs 

during prior conflicts.4 War crimes trials after World War II for POW mistreatment recognized 

that the humane treatment of POWs was required under customary international law.5 

After World War II, the 1949 Geneva Conventions were concluded, and more than 190 

States, including the United States, are Parties to the GPW.6

9.1.2 Interpretation and Application of the GPW. The GPW underlies most of the 

international law rules applicable to the United States for the treatment of POWs. 

The GPW’s provisions should be interpreted in light of the principles that underlie POW 

detention and, in particular, in light of the goal of advancing the humane treatment of POWs.

7

 

 1 WINTHROP, MILITARY LAW & PRECEDENTS 788 (“Modern sentiment and usage have induced in the practice of war 

few changes so marked as that which affects the status of prisoners of war. The time has long passed when ‘no 

quarter’ was the rule on the battlefield, or when a prisoner could be put to death by virtue simply of his capture.”).

2 See, e.g., Treaty of Peace Between Spain and the Netherlands, Signed at Munster, in Westphalia, on 30 January 

1648, LEVIE, DOCUMENTS ON POWS 5 (“LXIII. All prisoners of war shall be delivered up by both sides, without the 

payment of any ransom, and without any distinction and without exception with respect to the prisoners who served 

outside of the Low Countries and under other standards and flags than those of the said Sovereign States.”).

3 For example, Treaty of Amity and Commerce between His Majesty the King of Prussia and the United States of 

America, art. 24, Sept. 10, 1785, 18 STAT. 641, 647.

4 Refer to § 19.8.1 (1899 Hague II); § 19.13.2 (1929 GPW).

5 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 232 (“The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners of 

war, that the U.S.S.R. was not a party to the [1929] Geneva Convention, is quite without foundation.”); United 

States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 495 

(quoting the International Military Tribunal at Nuremberg’s discussion of the murder and maltreatment of Soviet 

POWs and noting: “All of these unlawful acts, as well as employment under inhumane conditions and at prohibited 

labor, is shown by the record in this case. They were deliberate, gross and continued violations of the customs and 

usages of war as well as the Hague Regulations (1907) and the Geneva Convention (1929) and of international 

common law.”).

6 Refer to § 19.16 (1949 Geneva Conventions).

7 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the 

Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 55 (“Our recourse 

to fundamental principles to address an ambiguity in article 4 is not unusual. In the context of the law of armed 

conflict, interpreters faced with changed or unexpected circumstances have not hesitated to resort to a treaty’s 
535

The subsequent practice of States in applying the GPW could assist in interpreting its provisions 

because States’ decades of experience in applying the GPW may be very helpful in 

understanding its requirements.8

9.1.2.1 GPW – Notes on Terminology. “Prisoner of war” (abbreviated POW in 

this manual) does not refer to any person who is held prisoner in connection with a war; rather, 

POW is term of art that is defined and used in the GPW.9

In the GPW, the Detaining Power refers to the State that holds the POW.

In the GPW, the Power on which the POWs depend means the State that the POWs 

served before falling into the power of the enemy. (In some cases, this State might be different 

from the POW’s State of nationality.)

In the GPW, the Protecting Power refers to a neutral State that helps implement the 

GPW.10

9.1.2.2 Special Agreements Under the GPW. Under the GPW, States may 

conclude a variety of special agreements during international armed conflict to facilitate the 

protection of POWs.

The GPW specifically provides for agreements:

• to entrust to an effective and impartial organization the duties of the Protecting Powers;11

• to establish a system for marking POW camps;

12

• on how to allocate the profits made by camp canteens in case of a general repatriation;13

• to establish the corresponding ranks for their medical personnel and staff of National Red 

Cross Societies and other Voluntary Aid Services in order to help determine the senior 

medical officer in POW camps;14

 

fundamental principles to avoid a non-contextual reading of a treaty term that, wrenched from its original context, 

might lead to a conclusion that does violence to the treaty’s object and purpose. And they have done so even when 

construing treaty text far less ambiguous than article 4.”). Refer to § 9.2 (General Principles Applicable to the 

Treatment of POWs).

8 Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

9 Refer to § 9.3 (POW Status).

10 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

11 Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties 

Under the 1949 Geneva Conventions).

12 Refer to § 9.4.2.3 (Location and Marking of POW Camps).

13 Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).

14 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).
536

• for the relief of retained personnel and the procedure for relief;15

• to modify the amount of advances of pay due to POWs based on their military rank

during and at the close of hostilities;16

• to notify periodically, through the Protecting Power, the account balances of POWs;

17

• to vary the required information provided for in the list of all appropriate particulars of all 

POWs whose captivity has been terminated;18

• regarding individual parcels and collective relief shipments to POWs;

19

• for the accommodation in neutral countries of seriously wounded and sick POWs;

20

• for the direct repatriation or internment in a neutral country of able-bodied POWs who 

have undergone a long period of captivity;21

• to determine the conditions that POWs who are accommodated in a neutral country must 

fulfill in order to permit their repatriation, and to establish the status of POWs 

accommodated in a neutral country;22

• to determine the equitable apportionment of costs of and a plan for repatriation for when 

hostilities have ceased;23

• to regulate the conditions of the transport of personal effects and the payment of the costs 

associated with the repatriation of POWs;

24 

• to establish a commission to search for dispersed POWs and to ensure their repatriation 

with the least possible delay;25 and 

• on the procedure, or to select an umpire who will decide the procedure, to be followed for 

 15 Refer to § 7.9.5.8 (Agreements on Possible Relief of Retained Personnel).

16 Refer to § 9.18.3 (Advance of Pay).

17 Refer to § 9.18.6.3 (Periodic Notification of the Amount of the Accounts of POWs).

18 Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).

19 Refer to § 9.20.3.3 (Special Agreements Concerning Relief Shipments).

20 Refer to § 9.36.2 (Accommodation in Neutral Countries).

21 Refer to § 9.36.2 (Accommodation in Neutral Countries).

22 Refer to § 9.36.3.1 (Repatriation From a Neutral State).

23 Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities).

24 Refer to § 9.38.3 (Personal Property); § 9.31.2.3 (Collection of Personal Valuables Left by POWs).

25 Refer to § 9.37.5 (Commissions to Search for Dispersed POWs).
537

an inquiry concerning any alleged violation of the GPW.26

In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 

67, 72, 73, 75, 109, 110, 118, 119, 122, and 132 of the GPW, Parties to the GPW may conclude 

other special agreements for all matters concerning which they may deem it suitable to make 

separate provision.27 No special agreement shall adversely affect the situation of POWs, as 

defined by the GPW, nor restrict the rights that it confers upon them.28

POWs shall continue to have the benefit of such agreements as long as the GPW is 

applicable to them, except where express provisions to the contrary are contained in these or 

subsequent agreements, or where more favorable measures have been taken with regard to them 

by one or other of the parties to the conflict.29

9.1.3 DoD Policies and Regulations for the Treatment of POWs. DoD policies and 

regulations regarding the treatment of POWs provide authoritative guidance for DoD personnel 

and fill an important role in implementing the complex requirements of the GPW.30 

Practitioners are advised to consult all applicable policies and regulations, as these, in many 

cases, exceed the requirements of the GPW, U.S. statutes, and Executive Orders.

9.2 GENERAL PRINCIPLES APPLICABLE TO THE TREATMENT OF POWS

Certain principles provide the foundation for the rules governing the treatment of POWs.

9.2.1 Detention Is Non-Punitive in Character. The detention of POWs is not punishment, 

and is devoid of all penal character.

31 It is intended to disable the POW and to prevent him or 

her from further participation in hostilities.32

 26 Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).

27 GPW art. 6 (“In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 67, 72, 

73, 75, 109, 110, 118, 119, 122 and 132, the High Contracting Parties may conclude other special agreements for all 

matters concerning which they may deem it suitable to make separate provision.”).

28 GPW art. 6 (“No special agreement shall adversely affect the situation of prisoners of war, as defined by the 

present Convention, nor restrict the rights which it confers upon them.”).

29 GPW art. 6 (“Prisoners of war shall continue to have the benefit of such agreements as long as the Convention is 

applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent 

agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties 

to the conflict.”).

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

31 WINTHROP, MILITARY LAW & PRECEDENTS 788 (“It is now recognized that—‘Captivity is neither a punishment 

nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’”); Francis 

Lieber, The Status of Rebel Prisoners of War, reprinted in II THE MISCELLANEOUS WRITINGS OF FRANCIS LIEBER 

293 (1881) (“A belligerent is not a criminal, and the imprisonment of a captured belligerent is not a punishment. A 

prisoner of war is no convict; his imprisonment is a simple war measure.”).

32 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 232 

(quoting approvingly a German Admiral who argued for the humane treatment of POWs during World War II, “war 

captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent 

the prisoners of war from further participation in the war.”).
538

9.2.2 Responsibility of the Detaining Power. POWs are in the hands of the enemy 

Power, and not of the individuals or military units who have captured them.33 Irrespective of the 

individual responsibilities that may exist, the Detaining Power is responsible for the treatment 

given POWs.

34

9.2.3 Responsibility of POWs. Just as the Detaining Power is responsible for the 

treatment of POWs, POWs also have certain responsibilities related to their detention.

POWs continue to have obligations to the Power on which they depend.35 POWs are also 

obliged to obey the laws, regulations, and orders of the Detaining Power.36 Despite this general 

obligation, POWs may not be punished in respect of their successful escape, if recaptured by the 

Detaining Power.37

9.2.4 Humane Treatment. Humane treatment is a fundamental principle underlying the 

GPW; it is always required.38 Moreover, interpretations of the GPW that provide for humane 

treatment should be favored over rigid interpretations of the GPW that lead to results that would 

be detrimental to the welfare of POWs.

9.2.5 Reciprocity in the Treatment of POWs. The rules for the treatment of POWs have 

long been based on the principle that POWs should be treated as the Detaining Power would 

want its forces held by the enemy to be treated.39 Aside from being legally required, the 

 33 GPW art. 12 (“Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units 

who have captured them.”); 1929 GPW art. 2 (“Prisoners of war are in the power of the hostile Power, but not of the 

individuals or corps who have captured them.”); HAGUE IV REG. art. 4 (“Prisoners of war are in the power of the 

hostile Government, but not of the individuals or corps who capture them.”); LIEBER CODE art. 74 (“A prisoner of 

war, being a public enemy, is the prisoner of the government, and not of the captor.”).

34 GPW art. 12 (“Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for 

the treatment given them.”).

35 Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).

36 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the 

Detaining Power).

37 Refer to § 9.25.1 (No Punishment for Successful Escape).

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

39 For example, Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson 

Plan—First Hour, ¶6, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva 

Conventions of 1949 and Hague Convention No. IV of 1907, 6 (Aug. 29, 1975) (“Although we shall presently 

discuss the most important of the many specific rules set out in these [1949 Geneva] Conventions, you should 

always keep in mind that these rules are embodied in one general principle: treat all prisoners of war, civilians, or 

other detained personnel humanely. ... But, you ask, what does it mean to treat someone humanely? If you treat 

such people as you would like to be treated were you captured or detained, you will be treating them humanely. 

Remember that a PW is in your protective custody, and you cannot harm him.”); George Washington, Commanderin-Chief of the Continental Army, Letter to Lieutenant General Thomas Gage, Head Quarters, Cambridge (Aug. 11, 

1775), reprinted in JARED SPARKS, THE WRITINGS OF GEORGE WASHINGTON; PART SECOND, III 60 (1837) (“My 

Duty now makes it necessary to apprize you, that for the future I shall regulate my Conduct towards those 

Gentlemen, who are or may be in our Possession, exactly by the Rule you shall observe towards those of ours, now 

in your Custody. If severity and hardship mark the line of your conduct, painful as it may be to me, your prisoners 

will feel its effects. But if kindness and humanity are shown to ours, I shall with pleasure consider those in our 

hands only as unfortunate, and they shall receive from me that treatment to which the unfortunate are entitled.”).
539

favorable treatment of POWs held by the U.S. armed forces can promote the favorable treatment 

of members of the U.S. armed forces held by enemy States.40

A similar concept may also be found in provisions of the GPW that provide for the 

treatment of POWs with reference to the treatment of the armed forces of the Detaining Power. 

For example, POWs shall be quartered under conditions as favorable as those for the forces of 

the Detaining Power who are billeted in the same area.41 Similarly, in judicial proceedings, 

POWs should benefit from the same courts and same procedures as the members of the armed 

forces of the Detaining Power.42

9.3 POW STATUS

9.3.1 POW Status Versus POW Protections. In some cases, the policy of the United 

States has been to afford detainees certain POW protections even when they may not apply as a 

matter of law.43 Certain POW protections may be afforded to an individual without affecting the 

legal status of that individual or the legal status of a group to which that person belongs.

44

9.3.2 Persons Entitled to POW Status. During international armed conflict, persons 

entitled to POW status, if they fall into the power of the enemy, include:

45

 40 For example, Martin Tollefson, Enemy Prisoners of War, 31 IOWA LAW REVIEW 51, 56 footnote 8 (1946) (“The 

writer of this law review article was a member of a committee of three officers sent by the Secretary of War to 

inspect concentration camps, civilian internee camps, and prisoner-of-war camps in Germany immediately upon 

their liberation. Testimony was frequently and freely given to these committee members by Americans held as 

prisoners of war (not in concentration camps where American servicemen were not interned) to the effect that they 

had been given better treatment as a result of the fair treatment given by the United States to German prisoners. 

Occasionally testimony was given by interned Americans that they were of the opinion that the reason they survived 

prisoner of war internment in Germany was the result of fair treatment of German prisoners.”).

41 Refer to 9.11.6 (Conditions of Living Quarters).

42 Refer to § 9.28.2 (Same Courts and Same Procedures).

43 For example, MAJOR GENERAL GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 66 (1975) (“The 

classification of Viet Cong combatants and Viet Cong suspects posed an interesting legal problem. Because it 

believed the Viet Cong were traitors and criminals, the Vietnam government was reluctant to accord prisoner of war 

status to Viet Cong captives. Furthermore it was certainly arguable that many Viet Cong did not meet the criteria of 

guerrillas entitled to prisoner of war status under Article 4, Geneva Prisoner of War Conventions. However, civil 

incarceration and criminal trial of the great number of Viet Cong was too much for the civil resources at hand. In 

addition, Article 22 prohibited the mingling of civil defendants with prisoners of war. By broadly construing Article 

4, so as to accord full prisoner of war status to Viet Cong Main Force and Local Force troops, as well as regular 

North Vietnamese Army troops, any Viet Cong taken in combat would be detained for a prisoner of war camp rather 

than a civilian jail. The MACV policy was that all combatants captured during military operations were to be 

accorded prisoner of war status, irrespective of the type of unit to which they belonged. Terrorists, spies, and 

saboteurs were excluded from consideration as prisoners of war. Suspected Viet Cong captured under 

circumstances not warranting their treatment as prisoners of war were handled as civilian defendants.”).

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

45 GPW art. 4A (“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the 

following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to 

the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of 

other militias and members of other volunteer corps, including those of organized resistance movements, belonging 

to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided 
540

• members of the armed forces of a State that is a party to the conflict, including;

46

o deserters;47 and

o military medical and religious personnel not entitled to retained personnel status 

(e.g., those not exclusively engaged in medical duties at the time of their 

capture);

48

• members of certain militia and volunteer corps;49

• members of regular armed forces who profess allegiance to a government or authority not 

recognized by Detaining Power;

50

• persons authorized to accompany the armed forces;

51

• members of crews of merchant marine vessels or civil aircraft;

52 and

• participants in a levée en masse.

53

9.3.2.1 Persons Who Are Not Entitled to POW Status. Certain categories of

persons are not entitled to POW status:

• spies, saboteurs, and other persons engaging in similar acts behind enemy lines;54 and

 that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: 

(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign 

recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance 

with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or 

an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually 

being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, 

members of labour units or of services responsible for the welfare of the armed forces, provided that they have 

received authorization from the armed forces which they accompany, who shall provide them for that purpose with 

an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of 

the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more 

favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, 

who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time 

to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of 

war.”).

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

47 Refer to § 4.5.2.5 (Deserters).

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

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

50 Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not 

Recognized by the Detaining Power).

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

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

53 Refer to § 4.7 (Levée en Masse).
541

• persons who are nationals of the Detaining Power or its co-belligerents,

55 such as a

defector who subsequently is captured by the force from which he or she defected.56

9.3.2.2 Examples of Categories of Persons Who Are Not Necessarily Excluded 

From POW Status. The following categories of persons are not necessarily excluded from POW 

status simply because they belong to one of these categories:

• mercenaries;57

• persons who are alleged to have committed war crimes;

58

• nationals of neutral or non-belligerent States serving in the armed forces of an enemy 

State;

59 and

• persons whose capture has not been acknowledged by the Power to which they belong.60

9.3.3 Persons Entitled to POW Treatment. Certain persons, although not entitled to POW 

status, shall likewise be treated as POWs under the GPW:

• persons belonging, or having belonged, to the armed forces of an Occupied State if it is 

deemed necessary to intern them;

61 and

• persons belonging to one of the categories enumerated in Article 4 of the GPW who have 

been received by neutral or non-belligerent Powers on their territory and whom these 

Powers are required to intern under international law.

62

9.3.4 Fallen Into the Power of the Enemy.

9.3.4.1 Having Fallen. Persons must have “fallen” into the power of the enemy to 

receive POW status.63

The person need not have been captured to have “fallen” into the power of the enemy; it 

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

55 Refer to § 4.4.4 (Nationality and Combatant Status).

56 Refer to § 4.5.2.6 (Defectors).

57 Refer to § 4.21 (Mercenaries).

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

59 Refer to § 4.4.4.1 (Nationals of Neutral States in Enemy Forces).

60 For example, 2004 UK MANUAL ¶8.3 footnote 20 (“During the Gulf conflict 1991, the Iraqi action in declaring 

that captured aircrew would only be treated as prisoners of war (PW) if the coalition forces admitted that they had 

been captured was a clear breach of GC III, Art 4.”).

61 Refer to § 4.5.4 (Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State).

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

63 Compare § 10.3.2.1 (“Find Themselves”).
542

may be the case that he or she became a prisoner without fighting, e.g., by surrendering.64

Although defectors serving with their new armed force may be viewed as being in “the 

power of the enemy,” they are not regarded as “hav[ing] fallen into” that condition, since they 

have voluntarily chosen to switch sides.65 Thus, defectors are not considered by their new armed 

forces to be entitled to POW status.

66

9.3.4.2 Into the Power. A person is considered to have fallen into the power of 

the enemy when that person has been captured by, or surrendered to, members of the military 

forces, the civilian police, or local civilian defense organizations or other enemy civilians who 

have taken that person into custody.67 The person need not be captured by the armed forces of 

the opposing State. 

9.3.4.3 Of the Enemy. Persons who have been captured by States that are not 

adversaries in the armed conflict are not technically in the hands of the enemy.68 However, 

persons who are entitled to POW status or treatment and are interned by a neutral State under its 

duties under international law are generally entitled to POW treatment, as a minimum, under 

Article 4B(2) of the GPW.

69 Similarly, for example, military forces engaged in peace operations 

who are detained by the forces of a State that is a party to a conflict should, at a minimum, be 

afforded POW treatment by analogy.

9.3.5 Treatment and Determination of POW Status in Case of Doubt. Should any doubt 

arise as to whether persons, having committed a belligerent act and having fallen into the hands 

of the enemy, belong to any of the categories enumerated in Article 4 of the GPW, such persons 

shall enjoy the protection of the GPW until such time as their status has been determined by a 

 64 GPW COMMENTARY 50 (“The words ‘fallen into the power of the enemy’ replace the word ‘captured’ which 

appeared in the 1929 Convention, the first expression having a wider significance and also covering the case of 

soldiers who became prisoners without fighting, for example following a surrender.”).

65 See U.N. GENERAL ASSEMBLY, Report of the Secretary-General: Respect for Human Rights in Armed Conflicts, 

U.N. Doc. A/7720 ¶88 (Nov. 20, 1969) (“One of the requirements of the acquisition of prisoner of war status is that 

the persons concerned must ‘have fallen into the power of the enemy.’ The view has been expressed that persons 

who defect from their own forces and give themselves up to the enemy and therefore do not have prisoner of war 

status, are not subject to the provisions of Geneva Convention III and are therefore neither entitled to the rights nor 

bound by the obligations of prisoners of war.”); 1958 UK MANUAL ¶126 note 1 (“Defectors are not considered to 

have ‘fallen’ into the power of the enemy within the meaning of Art. 4A. ... The term ‘fallen’ clearly shows that it 

concerns combatants who pass into enemy hands, not of their own free will but by a force beyond their control 

because they are under its restraint,’”).

66 Refer to § 4.5.2.6 (Defectors).

67 1956 FM 27-10 (Change No. 1 1976) ¶84b (“A person is considered to have fallen into the power of the enemy 

when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian 

defense organizations or enemy civilians who have taken him into custody.”).

68 See GPW COMMENTARY 50 (“The existence of a state of belligerence is no longer officially in question; the term 

‘enemy’ covers any adversary during an ‘armed conflict which may arise between two or more of the High 

Contracting Parties’ pursuant to the first paragraph of Article 2.”).

69 Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).
543

competent tribunal.70 

9.3.6 Commencement and Duration of POW Status and Treatment. The GPW applies to 

persons referred to in Article 4 of the GPW from the time they fall into the power of the enemy 

until their final release and repatriation.71

9.3.7 Non-Renunciation of Rights Secured by the GPW. POWs may in no circumstances 

renounce, in part or in entirety, the rights secured to them by the GPW, or by special agreements, 

if any, that are referred to in Article 6 of the GPW.72 A similar provision of the GC applies to 

protected persons, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick, 

shipwrecked, and military medical and religious personnel.73

This rule is intended to prevent States from evading their obligations by coercing enemy 

nationals in their power to waive their rights. The prohibition on the non-renunciation of rights 

is based on a recognition that: (1) POWs are in a vulnerable position; (2) it would be difficult to 

establish whether a POW had voluntarily renounced his or her rights; and (3) an absolute 

prohibition would best serve the interests of the majority of POWs.74

The non-renunciation of rights, in particular, prevents a POW from being compelled to 

serve in the armed forces of the Detaining Power.75 The non-renunciation of POW rights, 

however, applies only to those who have fallen into the power of the enemy, and thus would not 

prevent persons from defecting to the enemy’s side before capture.

76

The non-renunciation of rights by the GPW does not prohibit States from affording 

POWs the right to refuse repatriation at the conclusion of the conflict.77

 70 Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined); § 4.27.3 (Competent 

Tribunal to Assess Entitlement to POW Status or Treatment).

71 GPW art. 5 (“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into 

the power of the enemy and until their final release and repatriation.”).

72 GPW art. 7 (“Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them 

by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”). 

Refer to § 9.1.2.2 (Special Agreements Under the GPW).

73 Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC); § 7.2.2 (Non-Renunciation of Rights Secured 

by the GWS or GWS-Sea).

74 See GPW COMMENTARY 89 (“In the end, however, the Diplomatic Conference unanimously adopted the absolute 

prohibition mainly because it is difficult, if not impossible, to prove the existence of duress or pressure [against a 

POW for him or her to renounce rights]. ... [The Diplomatic Conference] adopted the rule because it seemed to 

safeguard the interests of the majority. ... The Conference also accepted the view that in war-time prisoners in the 

hands of the enemy are not really in a sufficiently independent and objective state of mind to realize fully the 

implications of a renunciation of their rights.”). See also LEVIE, POWS 91 (“Obviously, prisoners of war can never 

negotiate on a basis of equality with the Detaining Power.”).

75 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled).

76 Refer to § 4.5.2.6 (Defectors).

77 Refer to § 9.37.4.2 (POWs Who Resist Repatriation).
544

9.4 NATIONAL-LEVEL GPW IMPLEMENTATION MEASURES

The GPW requires a number of measures at the national level to facilitate protection for 

POWs. 

9.4.1 Appointment or Establishment of Entities. The GPW provides for certain bodies or 

entities to be appointed or established.

9.4.1.1 Appointment of a Protecting Power. The GPW contemplates that a

Protecting Power will have been appointed to assist in the implementation of the GPW.

78 A 

Protecting Power has a variety of roles under the GPW related to the protection of POWs.

79

9.4.1.2 Establishment of a National POW Information Bureau. A National POW 

Information Bureau shall be established by each of the Powers concerned.

80 

9.4.1.3 Establishment of a Central POW Information Agency. A Central POW 

Information Agency shall be established in a neutral country by the Power concerned jointly.

81

9.4.1.4 Appointment of Mixed Medical Commissions. Mixed Medical 

Commissions shall be appointed to examine sick and wounded POWs and to make all 

appropriate decisions regarding them.

82

9.4.1.5 Graves Registration Service. A Graves Registration Service shall be 

established by each of the Powers concerned.

83

9.4.2 Notification of Certain Laws or Policies Between Belligerents. Parties to a conflict 

must notify opposing belligerents or the Protecting Power of certain matters relating to POWs.

9.4.2.1 Notification of Parole Policy. Upon the outbreak of hostilities, each party

to a conflict shall notify the adverse party or parties of its laws or regulations allowing or 

forbidding its armed forces to accept parole.84 U.S. policy has prohibited the acceptance of 

parole.85

9.4.2.2 Notification of Offenses Punishable by Death. Information on what 

offenses are punishable by death should be communicated to the Protecting Power and the 

 78 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

79 Refer to § 9.32 (Role of the Protecting Power in the GPW).

80 Refer to § 9.31.2 (National POW Information Bureau).

81 Refer to § 9.31.3 (Central POW Information Agency).

82 Refer to § 9.36.5 (Mixed Medical Commissions).

83 Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).

84 Refer to § 9.11.2 (Parole of POWs).

85 Refer to § 9.39.1.3 (Code of Conduct – Article III).
545

POWs.

86

9.4.2.3 Location and Marking of POW Camps. The Detaining Power should 

provide the Powers concerned useful information regarding the geographic location of POW 

camps, and agreements on their markings may be reached.

87

9.4.2.4 Requirements for the Validity of Wills. Information on the requirements 

for the validity of wills should be communicated to the opposing party so that POWs in enemy 

custody may prepare valid wills.

88

9.4.2.5 Communication or Agreement Between the Powers Concerned on Ranks. 

Titles and ranks of persons entitled to POW status or treatment shall be communicated to one 

another by the parties to the conflict.

89 Ranks of persons entitled to retained personnel status or 

treatment should also be communicated and agreed upon so that the senior medical officer in a 

POW Camp may be determined.90

9.4.2.6 Arrangements Made for POWs to Write Correspondence and Receive 

Collective Relief. Immediately upon POWs falling into its power, the Detaining Power shall 

inform them and the Powers on which they depend, through the Protecting Power, of the 

measures taken to carry out the provisions of the Section V of the GPW, which relates to POW 

correspondence and relief shipments.

91 The Detaining Power shall likewise inform the parties

concerned of any subsequent modifications of such measures.92

9.4.3 Issue of Identification Cards to Persons Liable to Become POWs. Parties to the 

GPW must provide persons under their jurisdiction who are liable to become POWs with identity 

cards.93 This card must show:

• the owner’s surname (i.e., last name), first names (i.e., first and middle names);

• rank, army, regimental, personal or serial number or equivalent information; and 

• date of birth.

 86 Refer to § 9.28.6 (Death Sentences).

87 Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps); § 9.11.4.3 (Marking of POW Camps).

88 Refer to § 9.21.2.1 (Preparation of Wills).

89 Refer to § 9.22.4.1 (Communication of Titles and Ranks).

90 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

91 GPW art. 69 (“Immediately upon prisoners of war falling into its power, the Detaining Power shall inform them 

and the Powers on which they depend, through the Protecting Power, of the measures taken to carry out the 

provisions of the present Section.”).

92 GPW art. 69 (“They shall likewise inform the parties concerned of any subsequent modifications of such 

measures.”).

93 GPW art. 17 (“Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to 

become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, 

personal or serial number or equivalent information, and date of birth.”).
546

In accordance with this requirement, DoD practice has been to issue all members of the 

U.S. armed forces identification cards that indicate their status under the Geneva Conventions.94

An individual’s loss of the identification card issued by a State Party is not a basis for 

denial of POW status.95 

9.5 HUMANE TREATMENT AND BASIC PROTECTIONS FOR POWS

POWs must at all times be humanely treated.

96 POWs are entitled in all circumstances to 

respect for their persons and their honor.97 Likewise, POWs must at all times be protected, 

particularly against acts of violence or intimidation and against insults and public curiosity.98

Any unlawful act or omission by the Detaining Power causing death or seriously 

endangering the health of a POW in its custody is prohibited, and will be regarded as a serious 

breach of the GPW.99

9.5.1 Respect for Their Persons and Honor. POWs are entitled in all circumstances to 

respect for their persons and their honor.100 For example, the rape or other indecent assault of 

POWs is forbidden.

101

9.5.2 Protection Against Acts of Violence or Intimidation. POWs must at all times be 

protected, particularly against acts of violence or intimidation.102 For example, the murder of 

POWs is forbidden.103

 94 For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions (Apr.

16, 2012); DOD INSTRUCTION 1000.1, Identity Cards Required by the Geneva Convention (Jan. 30, 1974).

95 Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).

96 GPW art. 13 (“Prisoners of war must at all times be humanely treated.”); HAGUE IV REG. art. 4 (“[Prisoners of 

war] must be humanely treated.”).

97 GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).

98 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or 

intimidation and against insults and public curiosity.”).

99 GPW art. 13 (“Any unlawful act or omission by the Detaining Power causing death or seriously endangering the 

health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present 

Convention.”).

100 GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).

101 Compare § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault); § 10.5.1.2

(Protection for Women Against Rape or Other Indecent Assault).

102 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or 

intimidation and against insults and public curiosity.”).

103 For example, Trial of the Rear-Admiral Nisuke Masuda and Four Others of the Imperial Japanese Navy (The 

Jaluit Atoll Case), I U.N. LAW REPORTS 71, 72 (U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island, 

Kwajalein Atoll, Marshall Islands, Dec. 7-13, 1945) (“The charge against the five accused, as approved by the 

Convening Authority, was one of murder. The specification stated that they ‘did, on or about 10th March, 1944, on 

the Island of Aineman, Jaluit Atoll, Marshall Islands, at a time when a state of war existed between the United States 

of America and the Japanese Empire, wilfully, feloniously, with malice aforethought without justifiable cause, and 
547

9.5.2.1 Prohibition on Killing of POWs. A commander of a force may not put 

enemy prisoners to death because their presence retards the force’s movements or diminishes the 

force’s power of resistance by necessitating a large guard, or by reason of the prisoners 

consuming supplies, or because it appears certain that they will regain their liberty through the 

impending success of enemy forces. It is likewise unlawful for a commander to kill enemy 

prisoners in the force’s custody on grounds of self-preservation, even in the case of airborne or 

commando operations, although the circumstances of the operation may make necessary rigorous 

supervision of and restraint upon the movement of POWs.104

Older sources that permitted commanders in dire circumstances to deny quarter do not 

reflect the current law.105

9.5.2.2 Protection Against Violence by the Civilian Population or Others. POWs 

must be protected against violence by the civilian population.106 POWs should be protected not 

only against unlawful acts by the agents of the Detaining Power, but also against violence from 

other POWs.107

 

without trial or other due process, assault and kill, by shooting and stabbing to death, three American fliers, then and 

there attached to the Armed forces of the United States of America, and then and there captured and unarmed 

prisoners of war in the custody of the said accused, all in violation of the dignity of the United States of America, 

the International rules of warfare and the moral standards of civilised society.’”).

104 1956 FM 27-10 (Change No. 1 1976) ¶85 (“A commander may not put his prisoners to death because their 

presence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of 

their consuming supplies, or because it appears that they will regain their liberty through the impending success of 

their forces. It is likewise unlawful for a commander to kill his prisoners on the grounds of self-preservation, even 

in the case of airborne or commando operations, although the circumstances of the operation may make necessary 

rigorous supervision of and restraint upon the movement of prisoners of war.”); 1958 UK MANUAL ¶137 (“A 

commander may not put his prisoners of war to death because their presence retards his movements or diminishes 

his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it 

appears that they will regain their liberty through the impending success of the forces to which they belong. It is 

unlawful for a commander to kill prisoners of war on grounds of self-preservation. This principle admits of no 

exception, even in the case of airborne or so-called commando operations—although the circumstances of the 

operation may make necessary rigorous supervision of and restraint upon their movement.”).

105 See, e.g., LIEBER CODE art. 65 (“[A] commander is permitted to direct his troops to give no quarter, in great 

straits, when his own salvation makes it impossible to cumber himself with prisoners.”).

106 See, e.g., Trial of Erich Heyer and Six Others (The Essen Lynch Case), I U.N. LAW REPORTS 88, 89 (British 

Military Court for the Trial of War Criminals, Essen, Dec. 18-19 and 21-22, 1945) (“[P]risoners of war were 

marched through one of the main streets of Essen, the crowd around grew bigger, started hitting them and throwing 

sticks and stones at them. An unknown German corporal actually fired a revolver at one of the airmen and wounded 

him in the head. When they reached the bridge, the airmen were eventually thrown over the parapet of the bridge; 

one of the airmen was killed by the fall; the others were not dead when they landed, but were killed by shots from 

the bridge and by members of the crowd who beat and kicked them to death.”); United States, et al. v. Göring, et al., 

Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 229 (“When Allied airmen were forced to land 

in Germany, they were sometimes killed at once by the civilian population. The Police were instructed not to 

interfere with these killings, and the Ministry of Justice was informed that no one should be prosecuted for taking 

part in them.”).

107 GPW COMMENTARY 143 (“Respect for physical integrity generally means that it is prohibited to kill, wound or 

even endanger prisoners of war. As we have seen above, Article 13 defines this obligation in a positive manner by 

specifying certain acts which constitute grave breaches. It should be emphasized that this protection must be 
548

9.5.2.3 No Exposure to a Combat Zone or Use as a Human Shield. No POW may 

at any time be sent to or detained in areas where he or she may be exposed to the fire of the 

combat zone, nor may his or her presence be used to render certain points or areas immune from 

military operations.108

9.5.2.4 No Physical Mutilation or Medical, Scientific, or Biological Experiments. 

In particular, no POW may be subjected to physical mutilation or to medical or scientific 

experiments of any kind that are not justified by the medical, dental, or hospital treatment of the 

POW concerned and carried out in his or her interest.109 The GWS and GWS-Sea also prohibit 

biological experiments on the wounded, sick, and shipwrecked.110

This prohibition was established in the 1949 Geneva Conventions in order to prohibit 

expressly criminal practices that occurred during World War II and to prevent the wounded, sick, 

or shipwrecked in captivity from being used as “guinea pigs” for medical experiments.111

The prohibition on subjecting the wounded, sick, or shipwrecked to biological 

experiments does not prevent doctors from trying new treatments that are justified on medical 

grounds and are employed solely for therapeutic purposes.112 

 enforced not only in regard to the agents of the Detaining Power, but also, should the occasion arise, in regard to 

fellow prisoners. Any infraction should be liable to punishment.”) (emphasis added).

108 GPW art. 23 (“No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to 

the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military 

operations.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE 

THE NMT 588 (“To use prisoners of war as a shield for the troops is contrary to international law.”). Refer to § 5.16

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

109 GPW art. 13 (“In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific 

experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner 

concerned and carried out in his interest.”).

110 GWS art. 12 (“Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in 

particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments;”).

111 See GWS COMMENTARY 139 (“It was intended, by prohibiting the subjection of wounded and sick to biological 

experiments, to put an end for all time to criminal practices of which certain prisoners have been the victims, and 

also to prevent wounded or sick in captivity from being used as ‘guinea-pigs’ for medical experiments.”). See, e.g., 

United States v. Karl Brandt, et. al (The Medical Case), II TRIALS OF WAR CRIMINALS BEFORE THE NMT 171, 175-

78 (“(A) High-Altitude Experiments. From about March 1942 to about August 1942 experiments were conducted at 

the Dachau concentration camp, for the benefit of the German Air Force, to investigate the limits of human 

endurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber in 

which the atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated. 

The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was 

raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and illtreatment. ... (L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments 

were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on 

phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken from 

incendiary bombs, and caused severe pain, suffering, and serious bodily injury.”).

112 GWS COMMENTARY 139 (“But the provision refers only to ‘biological experiments’. Its effect is not to prevent 

the doctors in charge of wounded and sick from trying new therapeutic methods which are justified on medical 

grounds and are dictated solely by a desire to improve the patient’s condition. Doctors must be free to resort to the 
549

POWs may voluntarily consent to give blood for transfusion or skin for grafting for 

therapeutic purposes; such procedures should take place under conditions consistent with 

generally accepted medical standards and controls designed for the benefit of both the donor and 

the recipient.

113

9.5.3 Protection Against Insults and Public Curiosity. POWs must at all times be 

protected against insults and public curiosity.114 For example, organizing a parade of POWs 

through the civilian population, thereby exposing them to assault, ridicule, and insults, would be 

prohibited.115 Displaying POWs in a humiliating fashion on television or on the internet would 

also be prohibited.116 For this reason and others, DoD policy has prohibited the taking of 

 

new remedies which science offers, provided always that such remedies have first been satisfactorily proved to be 

innocuous and that they are administered for purely therapeutic purposes.”).

113 Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs 

for transplantation except where these acts are justified] may be made only in the case of donations of blood for 

transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, 

and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and 

controls designed for the benefit of both the donor and the recipient.”).

114 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or 

intimidation and against insults and public curiosity.”).

115 See, e.g., Trial of Lieutenant General Kurt Maelzer, XI U.N. LAW REPORTS 53 (U.S. Military Commission, 

Florence, Italy, Sept. 9-14, 1946) (“Some time in January, 1944, Field Marshal Kesselring, commander-in-chief of 

the German forces in Italy, ordered the accused who was commander of Rome garrison to hold a parade of several 

hundreds of British and American prisoners of war in the streets of the Italian capital. This parade, emulating the 

tradition of the triumphal marches of ancient Rome, was to be staged to bolster the morale of the Italian population 

in view of the recent allied landings, not very far from the capital. The accused ordered the parade which took place 

on 2nd February, 1944. 200 American prisoners of war were marched from the Coliseum, through the main streets 

of Rome under armed German escort. ... A film was made of the parade and a great number of photographs taken 

which appeared in the Italian press under the caption ‘Anglo Americans enter Rome after all ... flanked by German 

bayonettes.’”) (ellipses in original); United States, et al. v. Araki, et al., Majority Judgment, International Military 

Tribunal for the Far East, 49,708, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO 

INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 574 (2008) (“About 1,000 

prisoners captured in the fighting in Malaya arrived in Korea and were marched through the streets of Seoul, Fusan, 

and Jinsen where they were paraded before 120,000 Koreans and 57,000 Japanese. These prisoners had previously 

been subjected to malnutrition, ill-treatment and neglect so that their physical condition would elicit contempt from 

those who saw them.”); STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICAN 

PRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 196 (1998) (“[H]oping to win increased support from Hanoi’s 

patrons, [the North Vietnamese] deliberately marched the group [of POWs] past the Soviet and Chinese embassies 

to impress officials there with the numbers of PWs the DRV held. As the column turned onto the main avenue, the 

prisoners were met by larger and noisier crowds, in some places massed 10 deep (John McKamey estimated as many 

as a hundred thousand altogether). Cued by a chanting [Northern Vietnamese POW interrogator-indoctrinator] and 

incited by blaring loudspeakers and marshals with bullhorns, the throng erupted into a frenzy as the PWs filed past. 

The hostile galleries cursed the prisoners, hurled bricks and bottles, and pressed close enough to pummel them with 

outstretched arms while guards grabbed the men by the hair or used rifle butts to force them to lower their heads. 

Scores of spectators broke through the makeshift barriers, darting in between the Americans—kicking, screaming, 

spitting, striking the defenseless men with clenched fists as they stumbled along dazed and now frightened.”).

116 WILLIAM M. HAMMOND, THE UNITED STATES ARMY IN VIETNAM: PUBLIC AFFAIRS, THE MILITARY AND THE 

MEDIA, 1962-1968, 272 (1990) (“Hanoi itself diverted public attention in the United States by releasing photographs 

showing an angry mob of North Vietnamese jeering a parade of captured American pilots-a blatant violation of the 

1949 Geneva Conventions which prohibited the exposure of prisoners of war to public curiosity and abuse.”).
550

photographs of detainees except for authorized purposes.117

Reprisals Prohibited. Measures of reprisal against POWs are prohibited.118 9.5.4

9.5.5 No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief. 

Taking into consideration the provisions of the GPW relating to rank and sex, and subject to any 

privileged treatment that may be accorded to them by reason of their state of health, age, or 

professional qualifications, all POWs shall be treated alike by the Detaining Power, without any 

adverse distinction based on race, nationality, religious belief, or political opinions, or any other 

distinction founded on similar criteria.119 

Distinction based on nationality, political opinion, or other similar criteria may be made 

so long as it is not adverse and it is made to advance legitimate interests, such as maintaining 

order in the camp.

120

In some cases, the Detaining Power must make distinctions between POWs as to rank or 

age,

121 state of health,122 or professional status,123 as well as to provide specific protection for 

women. 

9.5.6 Due Regard for Women POWs. Women POWs shall be treated with all the regard 

due to their sex and shall in all cases benefit from treatment as favorable as that granted to 

men.124 This principle also applies under the GWS and GWS-Sea to women who are wounded, 

sick, and shipwrecked.125

The GPW provides specifically for separate dormitories for women POWs in camps with 

both men and women and for separate bathroom facilities for women POWs.126 The GPW also 

 117 Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).

118 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

119 GPW art. 16 (“Taking into consideration the provisions of the present Convention relating to rank and sex, and 

subject to any privileged treatment which may be accorded to them by reason of their state of health, age or 

professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse 

distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on 

similar criteria.”).

120 Refer to § 9.12.1 (Assembling According to Nationality, Language, and Customs).

121 Refer to § 9.22.4 (Rank and Age of POWs); § 9.19.1.2 (Labor Assignment – Officers and Persons of Equivalent 

Status).

122 Refer to § 9.14.2.1 (Persons Requiring Special Treatment); § 9.36.1 (Direct Repatriation of Seriously Wounded, 

Injured, or Sick POWs).

123 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3

(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).

124 GPW art. 14 (“Women shall be treated with all the regard due to their sex and shall in all cases benefit by 

treatment as favourable as that granted to men.”).

125 Refer to § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction).

126 Refer to § 9.11.6.1 (Separate Dormitories for Women); § 9.11.5.2 (Sanitary Conveniences (e.g., latrines, 

bathrooms)).
551

provides for women POWs undergoing disciplinary punishment or serving a sentence to be 

confined in separate quarters under the supervision of women.127 Although the GPW does not 

specifically provide for this, female POWs should be under the immediate supervision of 

women.128

9.6 SECURITY MEASURES WITH RESPECT TO POWS

Although POWs must always be treated humanely, the confinement and mode of treating 

a POW may be varied during captivity for security purposes.129 For example, POWs and their 

property may be searched and secured, when operationally necessary (e.g., immediately upon 

capture).130

9.6.1 Search of POWs. POWs may be searched for security reasons, intelligence 

purposes, and other administrative reasons. For example, POWs may be searched for concealed 

weapons, items of intelligence value, or contraband, such as cameras and cell phones.

131

The dignity and honor of the POW being searched should be protected to the greatest 

degree possible under the circumstances.132 The person conducting the search should avoid 

doing anything unnecessary or saying anything likely to be regarded as indecent or inappropriate. 

In some circumstances, it may be appropriate for a witness to observe the search so as to protect 

 127 Refer to § 9.27.6.1 (Premises Where Disciplinary Punishments Are to Be Served); § 9.28.7.2 (Confinement of 

Women POWs Who Have Been Sentenced).

128 Refer to § 8.7.1 (Gender and Family Segregation).

129 LIEBER CODE art. 75 (“Prisoners of war are subject to confinement and imprisonment such as may be deemed 

necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The 

confinement and mode of treating a prisoner may be varied during his captivity according to the demands of 

safety.”). See also GPW COMMENTARY 140 (“The requirement of humane treatment and the prohibition of certain 

acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to 

cases where repressive measures are legitimately imposed on a protected person, since the dictates of humanity must 

be respected even if measures of security or repression are being applied.”).

130 See Trial of Erich Weiss and Wilhelm Mundo, Relevance of the Plea of Self-Defence in War Crime Trials, XIII 

U.N. LAW REPORTS 149, 150 (U.S. General Military Government Court, Ludwigsburg, Germany, Nov. 9-10, 1945) 

(“In the light of the foregoing the rules contained in Articles 2 and 3 of the Geneva Convention, 1929, would appear 

to be subject to the principle that, given faithful observation of these provisions by the detaining authorities, the 

latter are generally entitled to use the force reasonably necessary to secure the custody of the prisoners or to protect 

themselves from an attack by the prisoners.”).

131 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of the 

capturing unit will ensure that: ... (a) Each EPW/RP will be searched immediately after capture. ... Weapons, 

ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest 

intelligence unit. Propaganda and other Psychological Operations (PSYOP) materials will be confiscated, identified 

by the EPW/RP name and ISN and turned over to the supporting EPW/CI PSYOP unit through intelligence 

channels.”); Office of the Provost Marshal General, World War II - A Brief History 492-93 (1946) (“Each prisoner 

was searched and disarmed immediately upon capture and contraband articles were taken from him, including all 

equipment issued to him by his government, except clothing. He was permitted to retain his helmet and gas mask in 

combat zones. Contraband included cameras, binoculars, signalling devices, compasses, and such other articles as 

might be useful to him in an escape. All military papers, documents, maps, and diaries were retained for intelligence 

examination.”).

132 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).
552

both the person being searched from abuse and the person conducting the search from unfounded 

accusations of abuse.

It is appropriate for female POWs to be searched by female personnel of the Detaining 

Power, if possible.133 This practice helps reduce the risk of accusations of indecent behavior.

9.6.2 Securing POWs With Handcuffs and Other Security Devices. When necessary for 

security reasons (e.g., to prevent escape or destruction of documents), POWs may be secured 

temporarily with handcuffs, flex cuffs, blindfolds, or other security devices.134

9.6.3 Search of POW Property. Items in the possession of POWs may be removed and 

searched for security and intelligence purposes, but certain items of personal or sentimental value

must be returned as soon as possible.135

9.7 POW EFFECTS AND ARTICLES OF PERSONAL USE

9.7.1 POW Effects and Articles of Personal Use. All effects and articles of personal use, 

except arms, horses, military equipment, and military documents, shall remain in the possession 

of POWs, likewise their metal helmets and gas masks and like articles issued for personal 

protection.136 Effects and articles used for their clothing or feeding shall likewise remain in their 

possession, even if such effects and articles are part of their regulation military equipment.137

These rules do not prohibit the search of POW effects and articles of personal use.

138 

Items that may otherwise be legitimately impounded (e.g., articles of value being 

withdrawn for reasons of security) are not precluded from being impounded because they may be 

characterized as an effect or article of personal use or an effect or article used for clothing or 

feeding.

139

Identity Documents. At no time should POWs be without identity documents.140 9.7.2 

 133 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of the 

capturing unit will ensure that: ... (a) Each EPW/RP will be searched immediately after capture. Use males to 

search males and females to search female prisoners, when possible.”).

134 See Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions, Oct. 13, 1942, HANSARD,

383 HOUSE OF COMMONS DEBATES § 1500 (“His Majesty’s Government have never countenanced any general order 

for the tying up of prisoners on the field of battle. Such a process, however, may be necessary from time to time 

under stress of circumstances, and may indeed be in the best interest of the safety of the prisoners themselves.”).

135 Refer to § 9.7.3 (Badges, Decorations, and Articles Having Above All a Personal or Sentimental Value).

136 GPW art. 18 (“All effects and articles of personal use, except arms, horses, military equipment and military 

documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like 

articles issued for personal protection.”).

137 GPW art. 18 (“Effects and articles used for their clothing or feeding shall likewise remain in their possession, 

even if such effects and articles belong to their regulation military equipment.”).

138 Refer to § 9.6.3 (Search of POW Property).

139 Refer to § 9.7.4 (Money and Articles of Value).

140 GPW art. 18 (“At no time should prisoners of war be without identity documents.”).
553

The Detaining Power shall supply such documents to POWs who possess none.141

Identity documents may be seized when necessary (e.g., intelligence purposes), provided 

that the Detaining Power supplies a replacement identity document.142

9.7.3 Badges, Decorations, and Articles Having Above All a Personal or Sentimental 

Value. Badges of rank and nationality, decorations, and articles having “above all” a personal or 

sentimental value may not be taken from POWs.143 Such items might include a ring, wristwatch, 

personal correspondence, or family photographs.

This rule does not prohibit the search of items, including a search in order to determine 

whether the items in question have above all a personal or sentimental value.

144

Items that may otherwise be legitimately impounded (e.g., articles of value being 

withdrawn for reasons of security) are not precluded from being impounded because of their 

personal or sentimental value to the POW.

145

9.7.4 Money and Articles of Value. Sums of money carried by POWs may not be taken 

away from them except by order of an officer, and after the amount and particulars of the owner 

have been recorded in a special register and an itemized receipt has been given, legibly inscribed 

with the name, rank, and unit of the person issuing this receipt.146

Sums in the currency of the Detaining Power, or that are changed into such currency at 

the POW’s request, shall be placed to the credit of the POW’s account as provided for in Article 

64 of the GPW.147

The Detaining Power may withdraw articles of value from POWs only for reasons of 

security; when such articles are withdrawn, the procedure laid down for sums of money 

 141 GPW art. 18 (“The Detaining Power shall supply such documents to prisoners of war who possess none.”).

142 GPW COMMENTARY 168 (“It is obvious, however, that no Detaining Power would undertake not to seize the 

individual service records of combatants immediately following capture, since valuable information might be 

contained therein. The Convention does not, therefore, restrict the right of the Detaining Power to seize military 

documents; in this respect it departs from the 1929 text but also stipulates that at no time should prisoners of war be 

without identity documents. As we have already seen in connection with Article 17, the Detaining Power must 

therefore supply an identity document in place of any individual service record which it impounds.”).

143 GPW art. 18 (“Badges of rank and nationality, decorations and articles having above all a personal or sentimental 

value may not be taken from prisoners of war.”).

144 Refer to § 9.6.3 (Search of POW Property).

145 Refer to § 9.7.4 (Money and Articles of Value).

146 GPW art. 18 (“Sums of money carried by prisoners of war may not be taken away from them except by order of 

an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized 

receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt.”).

147 GPW art. 18 (“Sums in the currency of the Detaining Power, or which are changed into such currency at the 

prisoner’s request, shall be placed to the credit of the prisoner’s account as provided in Article 64.”). Refer to

§ 9.18.6.1 (Cash in POW Hands Taken at the Time of Capture); § 9.18.6 (POW Accounts).
554

impounded shall apply.148 For example, an article of value may be impounded for reasons of 

security, even if it constitutes an article of personal use or an article having above all a personal 

or sentimental value.149

Such objects, likewise sums taken away in any currency other than that of the Detaining 

Power and the conversion of which has not been asked for by the owners, shall be kept in the 

custody of the Detaining Power and shall be returned in their initial shape to POWs at the end of 

their captivity.150

9.7.4.1 Unexplained Possession of Large Sums of Money by POWs. The 

unexplained possession by a POW of a large sum of money justifiably leads to the inference that 

such funds are not his or her own property and are in fact either property of the enemy 

government or property that has been looted or otherwise stolen.151

9.7.5 No Bartering With POWs for Personal Effects. It is not proper for members of the 

forces of the Detaining Power to engage in bartering and other transactions with POWs 

concerning their personal effects.152

9.7.6 Accountability for Impounded Personal Effects. In addition to the specific 

requirements for seized money or articles of value, it is a best practice for other items taken from 

POWs to be itemized and separated (packaged) with the name, unit, service number of the POW, 

and other identifying information to permit accountability, safekeeping, and return when 

appropriate to the POW.

9.8 INTERROGATION OF POWS

The law of war does not prohibit interrogation of POWs, but specifies conditions and 

limitations for conducting interrogation. 

9.8.1 Humane Treatment During Interrogation. Interrogation must be carried out in a 

manner consistent with the requirements for humane treatment, including the prohibition against 

 148 GPW art. 18 (“The Detaining Power may withdraw articles of value from prisoners of war only for reasons of 

security; when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply.”).

149 LEVIE, POWS 113 (“[A] prisoner of war might have an antique pocket watch with a compass in the stem. Even 

though such a watch falls within the category of ‘articles of personal use’ [Article 18, first paragraph] or of ‘articles 

having above all a personal or sentimental value’ [Article 18, third paragraph], which prisoners of war may normally 

retain, no Detaining Power could be censured for taking the watch and placing it in safekeeping until the owner is 

repatriated.”).

150 GPW art. 18 (“Such objects, likewise sums taken away in any currency other than that of the Detaining Power 

and the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining 

Power and shall be returned in their initial shape to prisoners of war at the end of their captivity.”).

151 1956 FM 27-10 (Change No. 1 1976) ¶94c (“The unexplained possession by a prisoner of war of a large sum of 

money justifiably leads to the inference that such funds are not his own property and are in fact either property of the 

enemy government or property which has been looted or otherwise stolen.”).

152 1956 FM 27-10 (Change No. 1 1976) ¶94b (“It is not proper for members of the forces of the Detaining Power to 

engage in bartering and other transactions with prisoners of war concerning their personal effects.”).
555

acts of violence or intimidation, and insults.

153

No physical or mental torture, nor any other form of coercion, may be inflicted on POWs 

to secure from them information of any kind whatever.154 POWs who refuse to answer may not 

be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.155

Prohibited means include imposing inhumane conditions,156 denial of medical treatment, or the 

use of mind-altering chemicals.157

9.8.2 Language of Interrogation. The questioning of POWs shall be carried out in a 

language that they understand.158 

9.8.3 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose 

additional requirements on the interrogation of POWs.159 

9.8.4 Accountability Information That POWs Are Bound to Provide Upon Questioning. 

Every POW, when questioned on the subject, is bound to give only his or her surname, first 

names and rank, date of birth, and army, regimental, personal or serial number, or, failing this, 

equivalent information.160 If POWs willfully infringe this rule, they may render themselves 

liable to a restriction of the privileges accorded to their rank or status.161 However, POWs who 

refuse to provide this information may not be coerced or exposed to any other unpleasant or 

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

154 GPW art. 17 (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of 

war to secure from them information of any kind whatever.”).

155 GPW art. 17 (“Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant 

or disadvantageous treatment of any kind.”).

156 Trial of Erich Killinger and Four Others (The Dulag Luft Case), III U.N. Law REPORTS 67 (British Military 

Court, Wuppertal, Nov. 26-Dec. 3, 1945) (“The function of Dulag Luft was, shortly, to obtain information of an 

operational and vital nature from the captured crews of Allied machines. The allegation was that excessive heating 

of the prisoners cells took place at Dulag Luft between the dates laid in the charge for the deliberate purpose of 

obtaining from prisoners of war information of a kind which under the Geneva Convention they were not bound to 

give, and that the accused were concerned in that ill-treatment. The Prosecution also alleged a ‘lack of and refusal 

of required medical attention’ and ‘in some cases, blows.’ ... Killinger, Junge and Eberhardt were found guilty and 

sentenced to imprisonment for five, five and three years respectively. The remaining two accused were found not 

guilty.”).

157 U.S. Army, Office of The Judge Advocate General, JAGW 1961/1157, Memo re: Use of “Truth Serum” in 

Questioning Prisoners of War, Jun. 21, 1961, LEVIE, DOCUMENTS ON POWS 708, 709 (“3. In view of the foregoing, 

it is the opinion of this division that the suggested use of a chemical ‘truth serum’ during the questioning of 

prisoners of war would be in violation of the obligations of the United States under the Geneva Convention Relative 

to the Treatment of Prisoners of War.”).

158 GPW art. 17 (“The questioning of prisoners of war shall be carried out in a language which they understand.”).

159 Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).

160 GPW art. 17 (“Every prisoner of war, when questioned on the subject, is bound to give only his surname, first 

names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent 

information.”).

161 GPW art. 17 (“If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges 

accorded to his rank or status.”).
556

disadvantageous treatment of any kind for failing to respond.

The provision of accountability information is important because it allows the Detaining 

Power to fulfill its obligations under the GPW. For example, the Detaining Power requires this 

information to establish lists of POWs for evacuation.162 In addition, the Detaining Power is 

required to gather further information on POWs to facilitate notification of their families.

163

9.8.4.1 POWs Unable to State Their Identity. POWs who, owing to their physical 

or mental condition, are unable to state their identity, shall be handed over to the medical 

service.164 The identity of such POWs shall be established by all possible means, subject to the 

prohibition on physical or mental torture, or coercion, as well as the prohibition on threats, 

insults, or exposure to unpleasant or disadvantageous treatment.

165 

9.9 EVACUATION FROM COMBAT AREAS

POWs shall be evacuated, as soon as possible after their capture, to camps situated in an 

area far enough from the combat zone for them to be out of danger.166 POWs shall not be 

unnecessarily exposed to danger while awaiting evacuation from a fighting zone.167

9.9.1 Delay in Evacuation for Medical Reasons. Only those POWs who, owing to 

wounds or sickness, would run greater risks by being evacuated than by remaining where they 

are, may be temporarily kept back in a danger zone.168

9.9.2 Conditions of Evacuation. The evacuation of POWs shall always be effected 

humanely and in conditions similar to those for the forces of the Detaining Power in their 

changes of station.

169 The Detaining Power shall supply POWs who are being evacuated with 

sufficient food and potable water, and with the necessary clothing and medical attention.

170 The 

Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and 

 162 Refer to § 9.9.2 (Conditions of Evacuation).

163 Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

164 GPW art. 17 (“Prisoners of war who, owing to their physical or mental condition, are unable to state their 

identity, shall be handed over to the medical service.”).

165 GPW art. 17 (“The identity of such prisoners shall be established by all possible means, subject to the provisions 

of the preceding paragraph.”).

166 GPW art. 19 (“Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an 

area far enough from the combat zone for them to be out of danger.”).

167 GPW art. 20 (“Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a 

fighting zone.”).

168 GPW art. 19 (“Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being 

evacuated than by remaining where they are, may be temporarily kept back in a danger zone.”).

169 GPW art. 20 (“The evacuation of prisoners of war shall always be effected humaneIy and in conditions similar to 

those for the forces of the Detaining Power in their changes of station.”).

170 GPW art. 20 (“The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food 

and potable water, and with the necessary clothing and medical attention.”).
557

shall establish as soon as possible a list of the POWs who are evacuated.171

Provided that the requirements of humane treatment are met, the Detaining Power may 

subject POWs to security measures while evacuating them away from the combat zone. For 

example, POWs may be handcuffed, flex-cuffed, or blindfolded for security reasons.

172

9.9.3 Release Under Unusual Conditions Rather Than Evacuation. When persons 

entitled to protection as POWs have fallen into the power of an adverse party under unusual 

conditions of combat that prevent their evacuation as provided for in Part III, Section I, of the 

GPW, they may be released, provided that feasible precautions are taken to ensure their safety.173

Release in such circumstances is permissible, but is not required.

174 In some cases, 

enemy forces may give their parole.175

9.9.3.1 Unusual Conditions of Combat Preventing Evacuation. Unusual 

conditions of combat may include airborne operations, commando raids, and long-range 

reconnaissance patrols.176

9.9.3.2 Feasible Precautions to Ensure Safety. POWs may be released in these 

circumstances only if feasible precautions are taken to ensure their safety.177 For example, a 

long-range reconnaissance patrol need not make itself militarily ineffective by handing over all 

 171 GPW art. 20 (“The Detaining Power shall take all suitable precautions to ensure their safety during evacuation, 

and shall establish as soon as possible a list of the prisoners of war who are evacuated.”).

172 Refer to § 9.6 (Security Measures With Respect to POWs).

173 Consider AP I art. 41(3) (“When persons entitled to protection as prisoners of war have fallen into the power of 

an adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III, 

Section I, of the Third Convention, they shall be released and all feasible precautions shall be taken to ensure their 

safety.”).

174 Cf. APPENDIX TO 1985 CJCS MEMO ON AP I, ANNEX-3 (providing a draft proposed understanding to AP I: “9. It 

is the understanding of the United States that Article 41, paragraph 3 [of AP I], does not obligate a Detaining Power 

to release prisoners of war simply because these individuals cannot be immediately evacuated from a combat zone. 

The United States continues to recognize, however, an obligation to provide for the safety of such personnel.”); 

2004 UK MANUAL ¶8.32.1 (“If, because of unusual conditions of combat, it is not possible to evacuate prisoners of 

war, they are to be released and all feasible precautions taken to ensure their safety. There is no obligation to release 

prisoners of war in circumstances in which safe evacuation is temporarily impossible. In such cases, prisoners of 

war may be held until release or evacuation is possible. There is, however, a continuing obligation to take all 

feasible measures to provide for the safety of such prisoners of war so long as they remain in the custody of the 

detaining power. This principle admits of no exception even in the case of airborne, commando, or special forces 

operations, although the circumstances of the operation may necessitate rigorous supervision of and restraint upon 

the movement of prisoners of war.”).

175 Refer to § 9.11.2 (Parole of POWs).

176 BOTHE, PARTSCH, & SOLF, NEW RULES 224 (AP I art. 41, ¶2.4) (“Articles 19 and 20 of the Third Convention 

require the prompt and humane evacuation of prisoners of war from the combat zone to places out of the danger 

area. In certain types of operations, particularly airborne operations, commando raids, and long range 

reconnaissance patrols, compliance with these articles is clearly impractical, and there has been dispute as to what is 

required in such cases.”).

177 Refer to § 5.2.3.2 (What Precautions Are Feasible).
558

its supplies to POWs whom it has captured.178 However, the patrol should take reasonable steps 

under the circumstances to help ensure the POWs’ safety and survival, such as providing them 

with a modicum of food and water.

179

9.9.3.3 Accountability Measures. In addition, it is a best practice to take feasible 

measures to account for the persons captured and released, such as recording: (1) full names, (2) 

serial numbers, (3) unit affiliation, and (4) the time, date, and location of capture and release.

9.10 TRANSIT OR SCREENING FACILITIES

POWs may be sent to transit or screening facilities before internment in a POW camp. 

For example, special interrogation centers have been used as screening facilities to interrogate 

POWs before their internment in the POW camp.180

9.10.1 Sending of Capture Cards in Transit or Screening Camps. Even in transit or 

screening camps, POWs are to be enabled to send capture cards within one week after arrival at a 

camp.181

9.10.2 Transit or Screening Camps Near Military Operations. Facilities within a zone of 

military operations are often established in order to house POWs captured during military 

operations in that particular zone that, due to their proximity to the fighting, are not able to meet 

all the requirements of the GPW.182 Transit or screening facilities must, however, provide 

 178 Cf. XV OFFICIAL RECORDS OF THE CDDH 384 (Committee III Report, CDDH/236/Rev.1, ¶24) (“Paragraph 3 

dealing with the release of prisoners who could not be evacuated proved quite difficult. The phrase ‘unusual 

conditions of combat’ was intended to reflect the fact that that circumstance would be abnormal. What, in fact, most 

representatives referred to was the situation of the long distance patrol which is not equipped to detain and evacuate 

prisoners. The requirement that all ‘feasible precautions’ be taken to ensure the safety of released prisoners was 

intended to emphasize that the detaining power, even in those extraordinary circumstances, was expected to take all 

measures that were practicable in the light of the combat situation. In the case of the long distance patrol, it need not 

render itself ineffective by handing the bulk of its supplies over to the released prisoners, but it should do all that it 

reasonably can do, in view of all the circumstances, to ensure their safety.”).

179 1958 UK MANUAL ¶137 note 1 (“Whether a commander may release prisoners of war in the circumstances stated 

in the text [commando operations and other situations in which it is not feasible to care for POWs] is not clear. No 

provision is made in the Convention [the GPW] for such release, and there may well be occasions when such a 

release will deprive the prisoners of war of such maintenance and food as is available, as, for example, if they are 

released in a desert or jungle or in mountainous districts. If such a release be made, it would seem clear that the 

commander should supply the prisoners with that modicum of food, water, and weapons as would give them a 

chance of survival.”).

180 For example, John Brown Mason, German Prisoners of War in the United States, 39 AJIL 198, 203 (1945) (“In 

American practice [during World War II], the prisoners are questioned at special interrogation centers. Practically 

no complaint has been made by the prisoners to the Swiss Legation about the treatment in these transient centers.”).

181 Refer to § 9.20.1 (Capture, Health, or Transfer Card).

182 GPW COMMENTARY 176 (“The camps mentioned in the present paragraph are those which the military 

authorities may have to establish in a combat zone in order to house prisoners captured during military operations in 

that particular zone. In view of the fact that they are near the fighting zone, it is not always possible to require that 

such camps should fulfil all the material conditions specified in the Convention.”).
559

POWs reasonable protection from the effects of combat, basic sanitation, and food and water.183 

If POWs must, during evacuation, pass through transit camps, their stay in such camps 

shall be as brief as possible.

184

9.10.3 Facilities of a Permanent Nature. Transit or screening camps of a permanent kind 

shall be fitted out under conditions similar to those described in Section II of the GPW for 

regular internment camps for POWs, and the POWs in those camps shall have the same 

treatment as in other camps.185

9.10.4 Use of Ships for Temporary Detention. POWs may be detained temporarily on 

board a ship if operational or humanitarian needs dictate, pending a reasonable opportunity to 

transfer them to a shore facility, or to another vessel for evacuation to a shore facility.186 For 

example, they may be temporarily detained on board naval vessels: (a) while being transported 

between land facilities; or (b) if such action would appreciably improve their safety or health 

prospects, such as avoidance of exposure to severe environmental or combat conditions, or 

improved access to medical care for those requiring it. Such limited detention does not violate 

the requirement for internment of POWs on land.

187

9.11 GENERAL CONDITIONS IN POW CAMPS: LOCATION, SAFETY, HYGIENE, AND LIVING 

CONDITIONS

9.11.1 Internment in POW Camps. The Detaining Power may subject POWs to 

internment.188 It may impose on them the obligation of not leaving, beyond certain limits, the 

camp where they are interned, or if that camp is fenced in, of not going outside its perimeter.189

9.11.1.1 Prohibition on Close Confinement. Subject to the provisions of the GPW

 183 Refer to § 9.9.2 (Conditions of Evacuation).

184 GPW art. 20 (“If prisoners of war must, during evacuation, pass through transit camps, their stay in such camps 

shall be as brief as possible.”).

185 GPW art. 24 (“Transit or screening camps of a permanent kind shall be fitted out under conditions similar to 

those described in the present Section, and the prisoners therein shall have the same treatment as in other camps.”).

186 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.b (“Special policy pertaining to the 

temporary detention of EPW, CI, RP and other detained persons aboard United States Naval Vessels: (1) Detention 

of EPW/RP on board naval vessels will be limited. (2) EPW recovered at sea may be temporarily held on board as 

operational needs dictate, pending a reasonable opportunity to transfer them to a shore facility, or to another vessel 

for transfer to a shore facility. (3) EPW/RP may be temporarily held aboard naval vessels while being transported 

between land facilities. They may also be treated and temporarily quartered aboard naval vessels incidental to their 

treatment, to receive necessary and appropriate medical attention if such detention would appreciably improve their 

health or safety prospects. (4) Holding of EPW/RP on vessels must be temporary, limited to the minimum period 

necessary to evacuate them from the combat zone or to avoid significant harm that would be faced if detained on 

land. (5) Use of immobilized vessels for temporary holding of EPW/RP is not authorized without SECDEF 

approval.”).

187 Refer to § 9.11.3.1 (Location on Land).

188 GPW art. 21 (“The Detaining Power may subject prisoners of war to internment.”).

189 GPW art. 21 (“It may impose on them the obligation of not leaving, beyond certain limits, the camp where they 

are interned, or if the said camp is fenced in, of not going outside its perimeter.”).
560

relative to penal and disciplinary sanctions, POWs may not be held in close confinement except 

where necessary to safeguard their health and then only during the continuation of the 

circumstances that make such confinement necessary.190

9.11.2 Parole of POWs. POWs may be partially or wholly released on parole or promise, 

in so far as is allowed by the laws of the Power on which they depend.191 Such measures shall 

be taken particularly in cases where this may contribute to the improvement of their state of 

health.192 No POW shall be compelled to accept liberty on parole or promise.

193

Upon the outbreak of hostilities, each party to the conflict shall notify the adverse party

of the laws and regulations allowing or forbidding its own nationals to accept liberty on parole or 

promise.194 U.S. policy prohibits U.S. servicemembers from accepting parole or special favors 

from the enemy.195

POWs who are paroled or who have given their promise in conformity with the laws and 

regulations so notified are bound on their personal honor scrupulously to fulfill, both towards the 

Power on which they depend and towards the Power that has captured them, the engagements of 

their paroles or promises.196 In such cases, the Power on which they depend is bound neither to 

require nor to accept from them any service incompatible with the parole or promise given.197

9.11.3 Location of POW Camps. 

9.11.3.1 Location on Land. POWs may be interned only in premises located on 

land.

198 This rule is intended to ensure that POWs are interned in a relatively safe and healthy 

 190 GPW art. 21 (“Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, 

prisoners of war may not be held in close confinement except where necessary to safeguard their health and then 

only during the continuation of the circumstances which make such confinement necessary.”).

191 GPW art. 21 (“Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed 

by the laws of the Power on which they depend.”).

192 GPW art. 21 (“Such measures shall be taken particularly in cases where this may contribute to the improvement 

of their state of health.”).

193 GPW art. 21 (“No prisoner of war shall be compelled to accept liberty on parole or promise.”).

194 GPW art. 21 (“Upon the outbreak of hostilities, each Party to the conflict shall notify the adverse Party of the 

laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise.”).

195 Refer to § 9.39.1.3 (Code of Conduct – Article III).

196 GPW art. 21 (“Prisoners of war who are paroled or who have given their promise in conformity with the laws and 

regulations so notified, are bound on their personal honour scrupulously to fulfil, both towards the Power on which 

they depend and towards the Power which has captured them, the engagements of their paroles or promises.”); 

HAGUE IV REG. art. 10 (“Prisoners of war may be set at liberty on parole if the laws of their country allow, and in 

such cases, they are bound, on their personal honour, scrupulously to fulfil, both towards their own Government and 

the Government by whom they were made prisoners, the engagements they have contracted. In such cases their own 

Government is bound neither to require of nor accept from them any service incompatible with the parole given.”).

197 GPW art. 21 (“In such cases, the Power on which they depend is bound neither to require nor to accept from them 

any service incompatible with the parole or promise given.”).

198 GPW art. 22 (“Prisoners of war may be interned only in premises located on land and affording every guarantee 

of hygiene and healthfulness.”).
561

environment. For example, in prior conflicts, POWs interned on ships were not held in hygienic 

and humane conditions. Similarly, POWs held on ships faced increased risk from the dangers of 

war.

Because the purpose of the rule is to provide for the detention of POWs in a relatively 

safe and healthy environment, detention aboard ship for POWs captured at sea or pending the 

establishment of suitable facilities on land is nonetheless consistent with the GPW if detention on 

a ship provides the most appropriate living conditions for POWs.

199 Ships may also be used to 

transport POWs or for screening.

200

9.11.3.2 Use of Penitentiaries as POW Camps. Except in particular cases that are 

justified by the interests of the POWs themselves, POWs shall not be interned in 

penitentiaries.201 This rule reflects the principle that POW detention is not punitive, but also 

recognizes that penitentiaries may sometimes provide the most appropriate lodging.202

9.11.3.3 Location Outside the Theater of Military Operations. The GPW does not 

prohibit locating POW camps outside the theater of military operations, and there is much State 

practice in conducting detention operations outside of the theater in which POWs were 

captured.

203 Although the GC imposes geographic restrictions on the transfer of protected 

 199 For example, Gregory P. Noone, Christian P. Fleming, Robert P. Morean, John V. Danner, Jr., Philip N. Fluhr, 

Jr., Jonathan I. Shapiro, Sandra L. Hodgkinson, Edward J. Cook, & Dillon L. Ross IV, Prisoners of War in the 21st 

Century: Issues in Modern Warfare, 50 NAVAL LAW REVIEW 1, 16 (2004) (“During OIF [Operation Iraqi 

Freedom], a U.S. naval vessel in the Persian Gulf served as a temporary detention facility for EPWs. EPW 

internment camps in Iraq were not yet ready for prisoners. Additionally, Kuwait refused to allow Coalition forces to 

build EPW camps in Kuwait and they would not allow Coalition forces to bring EPWs into Kuwait. The cavernous 

hold of USS DUBUQUE (LPD-8), an amphibious assault ship, was converted into a detention facility where 

prisoners were held and interrogated as EPWs until camps were operational on shore.”); Joint Chiefs of Staff, Memo 

re: Policy Concerning Temporary Detention of Prisoners of War, Civilian Internees, and Other Detained Persons 

Aboard Naval Vessels, ¶2a.(3) -¶2b (Aug. 24, 1984) (“PW/CI/DET may be temporarily held on board naval vessels 

if such detention would appreciably improve the safety or health prospects for the PW/CI/DET. b. Holding of 

PW/CI/DET on board vessels must be truly temporary, limited to the minimum period necessary to evacuate the 

PW/CI/DET from the combat zone or to avoid the significant harm the PW/CI/DET would face if detained on 

land.”); 2004 UK MANUAL ¶8.37.1 footnote 123 (“[Temporary internment on board ship for the purpose of 

evacuation from the combat zone] was done during the Falklands conflict 1982, with the concurrence of the ICRC, 

because there was nowhere suitable to hold PW on the Falklands Islands and the intention was to repatriate them as 

quickly as possible.”).

200 Refer to § 9.10.4 (Use of Ships for Temporary Detention).

201 GPW art. 22 (“Except in particular cases which are justified by the interest of the prisoners themselves, they shall 

not be interned in penitentiaries.”).

202 For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE 

SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 248 (1948) (“Experience in the recent War showed that 

a great variety of buildings and quarters were put into service. A converted penitentiary, for example, proved a 

better lodging than many other buildings.”).

203 For example, Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW REVIEW 51, 59 (1946) (“The total 

number of enemy prisoners of war interned within the United States [during World War II] was 435,788. Included 

were 378,898 Germans, 51,455 Italians, and 5,435 Japanese. The number of prisoners of war in the United States 

was somewhat negligible prior to January 1943. It increased rapidly beginning with May of that year, largely as a 

result of the success of the African campaign. The increase continued irregularly but speedily until it reached its 

peak shortly after the surrender of Germany, when the influx of prisoners of war from Europe ceased.”).
562

persons held in occupied territory, the GPW does not impose such restrictions on the transfer of 

POWs from the territory in which they were captured.204

Locating POW camps outside the theater of operations may be necessary for security 

(such as to discourage escape or reduce risk of enemy raids to release POWs) or other military 

reasons, such as improving the safety of POWs.

9.11.4 Safety of POW Camps. 

9.11.4.1 Avoidance of the Combat Zone. POW camps should be situated in an 

area far enough from the combat zone for POWs to be out of danger.205

9.11.4.2 Sharing Information on the Location of POW Camps. Detaining Powers

shall give the Powers concerned, through the intermediary of the Protecting Powers, all useful 

information regarding the geographic location of POW camps.

206

9.11.4.3 Marking of POW Camps. Whenever military considerations permit, 

POW camps shall be indicated in the daytime by the letters “PW” or “PG,” placed so as to be 

clearly visible from the air.207 The Powers concerned may, however, agree upon any other 

system of marking.208 No place, other than an internment camp, shall be marked as such.209

The caveat that POW camps need to be marked, as such, only when military 

considerations permit was intended to allow for camps not to be marked, e.g., if marking camps 

would provide landmarks that would facilitate aerial bombardment by the enemy.

210

9.11.4.4 Air-Raid Shelters and Protective Measures for POWs. POWs shall have 

shelters against air bombardment and other hazards of war, to the same extent as the local 

civilian population.211 With the exception of those engaged in the protection of their quarters 

against these hazards, they may enter such shelters as soon as possible after the giving of the 

 204 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

205 Cf. GPW art. 19 (“Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in 

an area far enough from the combat zone for them to be out of danger.”).

206 GPW art. 23 (“Detaining Powers shall give the Powers concerned, through the intermediary of the Protecting 

Powers, all useful information regarding the geographical location of prisoner of war camps.”).

207 GPW art. 23 (“Whenever military considerations permit, prisoner of war camps shall be indicated in the day-time 

by the letters PW or PG, placed so as to be clearly visible from the air.”).

208 GPW art. 23 (“The Powers concerned may, however, agree upon any other system of marking.”).

209 GPW art. 23 (“Only prisoner of war camps shall be marked as such.”).

210 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 254 (“Miss BECKETT (United 

Kingdom) said that her Delegation was opposed to any mandatory provision regarding the marking of prisoner of 

war camps, owing to the small area of the United Kingdom. Camps so marked would provide excellent landmarks 

in the event of aerial bombardment. Large countries might conclude special agreements on the matter.”).

211 GPW art. 23 (“Prisoners of war shall have shelters against air bombardment and other hazards of war, to the same 

extent as the local civilian population.”).
563

alarm.212 Any other protective measure taken in favor of the population shall also apply to 

POWs.

213

9.11.4.5 Fire Precautions. All precautions must be taken in POW camps against 

the danger of fire.214

9.11.5 Hygiene of POW Camps. POWs may be interned only in premises affording 

every guarantee of hygiene and healthfulness.215 POWs interned in unhealthy areas, or where 

the climate is injurious for them, shall be removed as soon as possible to a more favorable 

climate.216

9.11.5.1 Necessary Sanitary Measures. The Detaining Power shall be bound to 

take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to 

prevent epidemics.217 For example, the Detaining Power should give POWs medical 

examinations upon arrival, disinfect them, and provide them with any necessary inoculations.218 

In addition, quarters should be kept free from vermin, and POWs suffering from contagious 

diseases should be placed in quarantine as needed.

219

Although the Detaining Power is ultimately responsible for sanitary conditions, the 

Detaining Power may require POWs to assist in ensuring that POW camps are clean and healthy. 

For example, POWs may be assigned cleaning duties.

220 Additionally, POWs may be required 

to take baths or showers if necessary for health reasons.221 Similarly, POWs may be required to 

receive inoculations to prevent the spread of contagious diseases.

 212 GPW art. 23 (“With the exception of those engaged in the protection of their quarters against the aforesaid 

hazards, they may enter such shelters as soon as possible after the giving of the alarm.”).

213 GPW art. 23 (“Any other protective measure taken in favour of the population shall also apply to them.”).

214 GPW art. 25 (“All precautions must be taken against the danger of fire.”).

215 GPW art. 22 (“Prisoners of war may be interned only in premises located on land and affording every guarantee 

of hygiene and healthfulness.”).

216 GPW art. 22 (“Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be 

removed as soon as possible to a more favourable climate.”).

217 GPW art. 29 (“The Detaining Power shall be bound to take all sanitary measures necessary to ensure the 

cleanliness and healthfulness of camps and to prevent epidemics.”).

218 GPW COMMENTARY 206 (“Among the special measures which the Detaining Power must take in regard to 

prisoners of war, we would mention first very strict examination upon entry into the camp, thorough disinfection and 

inoculation with all necessary vaccines.”).

219 GPW COMMENTARY 207 (“Prisoners suffering from contagious diseases must be placed in quarantine. Careful 

attention must also be paid to quarters, and all necessary measures taken to keep them free of vermin.”). Refer to

§ 9.14.1.1 (Camp Infirmary).

220 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled).

221 GPW COMMENTARY 208 (“Baths and showers may be made compulsory for prisoners of war, provided no risk to 

their health is involved. This interpretation is not based on the present provision [paragraph 3 of GPW art. 29], but 

on paragraph 1 of this Article, which requires the Detaining Power to take all necessary sanitary measures. If baths 

and showers are considered necessary to ensure healthfulness in the camps and to prevent epidemics, they must be 

compulsory.”).
564

9.11.5.2 Sanitary Conveniences (e.g., latrines, bathrooms). POWs shall have for 

their use, day and night, conveniences that conform to the rules of hygiene and are maintained in 

a constant state of cleanliness.222 The term “sanitary conveniences” should be taken to mean 

primarily the latrines. Access to the latrines at night is specified in the 1949 Geneva 

Conventions because lack of access was a frequent problem in POW camps in World War II.223

In any camps in which women POWs are accommodated, separate conveniences shall be 

provided for them.224

9.11.5.3 Showers, Baths, Personal Toilet, and Laundry. Also, apart from the 

baths and showers with which the camps shall be furnished, POWs shall be provided with 

sufficient water and soap for their personal toilet and for washing their personal laundry; the 

necessary installations, facilities, and time shall be granted them for that purpose.225 For 

example, the POW camp may have camp laundry facilities that the POWs may use to wash their 

clothes, or the POWs may have access to a laundry service outside the camp.

226

Although the frequency with which baths or showers may be taken is not specified, a 

reasonable opportunity (e.g., considering the available resources, the POWs’ cultural practices, 

the activities in which they are engaged) should be afforded.227

9.11.6 Conditions of Living Quarters. POWs shall be quartered under conditions as 

favorable as those for the forces of the Detaining Power who are billeted in the same area.228 

These conditions shall make allowance for the habits and customs of the POWs and shall in no 

 222 GPW art. 29 (“Prisoners of war shall have for their use, day and night, conveniences which conform to the rules 

of hygiene and are maintained in a constant state of cleanliness.”).

223 See GPW COMMENTARY 207 (“During the Second World War, prisoners of war sometimes had no access to the 

conveniences during the night. The new Convention makes an express stipulation in this respect.”); I REPORT OF 

THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE SECOND WORLD WAR 

(SEPTEMBER 1, 1939 – JUNE 30, 1947) 263 (1948) (“Delegates of the ICRC frequently drew the attention of camp 

commandants to the fact that sanitary conveniences were insufficient in number and often inaccessible to PW at 

night.”).

224 GPW art. 29 (“In any camps in which women prisoners of war are accommodated, separate conveniences shall be 

provided for them.”).

225 GPW art. 29 (“Also, apart from the baths and showers with which the camps shall be furnished, prisoners of war 

shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; the 

necessary installations, facilities and time shall be granted them for that purpose.”).

226 See GPW COMMENTARY 208 (“The time allowed must also be sufficient for the washing of personal laundry. In 

camps where other ranks are interned, this task is usually performed by the prisoners themselves; in camps for 

officers, it is usually done outside the camp against payment.”).

227 See also GPW COMMENTARY 208 (“In the first place, this paragraph [of article 29 of the GPW] provides that the 

camps must be furnished with baths and showers. Taking into account the difficulties which the Detaining Power 

may have in providing hot baths and showers for a large number of prisoners, one bath or shower per week for each 

prisoner may be considered reasonable.”).

228 GPW art. 25 (“Prisoners of war shall be quartered under conditions as favourable as those for the forces of the 

Detaining Power who are billeted in the same area.”).
565

case be prejudicial to their health.229 In particular, the dormitories of POWs as regards both total 

surface and minimum cubic space, and the general installations, bedding, and blankets for 

POWs, should be as favorable as those of the forces of the Detaining Power in that area and 

should allow for their habits and customs.230

The premises provided for the use of POWs individually or collectively shall be entirely 

protected from dampness and adequately heated and lighted, in particular between dusk and 

lights out.231

9.11.6.1 Separate Dormitories for Women. In any camps in which women POWs, 

as well as men, are accommodated, separate dormitories shall be provided for women POWs.

232

Although the GPW refers only to separate dormitories and the quarters as a whole need 

not necessarily be separated, the Detaining Power may provide separate quarters or even camps 

for men and women POWs, as appropriate.233

9.12 SEGREGATION OF POWS

Although the Detaining Power must treat POWs without any adverse distinction based 

upon race, nationality, religion, or political belief, or any other distinction based upon similar 

criteria,234 the Detaining Power shall assemble POWs in camps or camp compounds according to 

their nationality, language, and customs, and may use other similar criteria to segregate detainees 

in order to maintain order in the camps or to impose punishment, or for medical reasons.

9.12.1 Assembling According to Nationality, Language, and Customs. The Detaining 

Power shall assemble POWs in camps or camp compounds according to their nationality, 

language, and customs, provided that such POWs shall not be separated from POWs belonging 

to the armed forces with which they were serving at the time of their capture, except with their 

consent.235 For example, unless they otherwise consent, POWs who are serving in the armed 

forces of a State of which they are not nationals should be quartered with POWs from that State 

 229 GPW art. 25 (“The said conditions shall make allowance for the habits and customs of the prisoners and shall in 

no case be prejudicial to their health.”).

230 GPW art. 25 (“The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards 

both total surface and minimum cubic space, and the general installations, bedding and blankets.”).

231 GPW art. 25 (“The premises provided for the use of prisoners of war individually or collectively, shall be entirely 

protected from dampness and adequately heated and lighted, in particular between dusk and lights out.”).

232 GPW art. 25 (“In any camps in which women prisoners of war, as well as men, are accommodated, separate 

dormitories shall be provided for them.”).

233 GPW COMMENTARY 195 (“Strictly speaking, this paragraph refers only to dormitories and the quarters as a 

whole need not necessarily be separated; the Detaining Power is, however, at liberty to provide separate quarters if it 

deems fit and in order more easily to fulfil the other requirements of the Convention with regard to women 

prisoners.”).

234 Refer to § 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief).

235 GPW art. 22 (“The Detaining Power shall assemble prisoners of war in camps or camp compounds according to 

their nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war 

belonging to the armed forces with which they were serving at the time of their capture, except with their consent.”).
566

as opposed to with POWs of their nationality. 

The assembling of POWs on the basis of nationality, language, and customs is intended 

to ameliorate the possibility of cultural conflicts within POW camps, such as those that occurred 

during World War I.236

9.12.1.1 Other Permissible Criteria for Segregating POWs. In addition to 

nationality, language, and customs, the Detaining Power may segregate POWs along the basis of 

other criteria to advance legitimate interests, such as maintaining order in camps or imposing

punishment, or for medical reasons.237 For example, it may be appropriate to segregate POWs 

on the basis of political opinion.238 POWs who are deserters or who fear attacks by other POWs 

may also be segregated.239 In addition, it may be appropriate to segregate POWs based on 

whether they are connected with potential war crimes proceedings.240 POWs may be segregated 

according to their known or suspected security risk level. A combination of classifications may 

be used to ensure an orderly and secure POW camp.241

 236 GPW COMMENTARY 183 (“The First World War was the first occasion on which soldiers of every race and 

nationality fought on the same battlefields, and the very varied composition of armed forces sometimes raised 

difficult problems for the Detaining Powers. It was difficult to expect men to live side by side solely because they 

had belonged to the same armed forces when not only their culture and civilization were very different, but also they 

had customs and habits which differed very much, for instance in matters of hygiene.”).

237 1956 FM 27-10 (Change No. 1 1976) ¶92b (“The foregoing provision [GPW art. 16] does not preclude the 

segregation of prisoners of war to maintain order in camps, to impose punishment, or for medical reasons.”).

238 For example, LEVIE, POWS 178 (“The incidents which occurred in the prisoner-of-war camps there [during the 

Korean War] demonstrated that where ideology is concerned, and where there is a major schism within the prisonerof-war group itself, segregation by political opinion may be an absolute requirement in order to ensure the safety of 

many of the prisoners of war. Once again, it is necessary to state that there is no valid objection to this procedure as 

long as there is, nevertheless, compliance with the provisions of the third paragraph of Article 22 and as long as 

there is no discrimination in the treatment received by the individuals confined in different camps or compounds.”).

239 For example, Gordon Risius, Prisoners of War in the United Kingdom, in PETER ROWE, THE GULF WAR 1990-91

IN INTERNATIONAL AND ENGLISH LAW 289, 298 (1993) (“Four [Iraqi] prisoners [of war held in the United Kingdom] 

were accommodated separately at their own request. They considered themselves to be deserters, and were 

concerned that they might be attacked by the other prisoners if they were not segregated.”).

240 For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The 

United States Army, 1776-1945, 253 (Jun. 24, 1955) (“All Japanese PW’s were divided into two classes after 

screening—processed and categorized. A processed prisoner of war was one who had been questioned and found 

not to be connected with any war crime. His name was recorded, a serial number assigned, and he was sent to a 

branch PW labor camp pending repatriation. A categorized prisoner of war was one held as a war criminal or as a 

material witness to atrocities committed by members of the Japanese forces. These were segregated from the other 

prisoners, but were eligible for use as laborers under adequate security.”).

241 For example, Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW REVIEW 51, 59 (1946) (“The most 

effective means, however, of stopping the crime wave [of murder and forced suicides in U.S.-run POW camps in 

World War II] and other troubles, among prisoners of war, was the adoption of a well-planned program of 

segregation. Prisoners were carefully screened and re-screened, classified, segregated, and transferred to camps 

accordingly. At the one extreme were found the rabid Nazis, and at the other the confirmed anti-Nazis, with the 

great mass of German prisoners falling in a middle category. In addition, there were many finer classifications and 

segregations. The trouble makers, the Gestapo agents, and the SS and SA men, for instance, had to be segregated 

from those who were willing to cooperate irrespective of their political views. Those who were inclined to be 
567

9.13 FOOD, WATER, TOBACCO, AND CLOTHING FOR POWS

9.13.1 Food for POWs. The basic daily food rations shall be sufficient in quantity, 

quality, and variety to keep POWs in good health and to prevent loss of weight or the 

development of nutritional deficiencies.242 

9.13.1.1 Accounting for the Habitual Diet. Account shall also be taken of the 

habitual diet of the POWs.

243 For example, the POWs’ cultural and religious requirements 

should be considered in determining and ensuring the appropriate diet.244 The preparation of the 

food by the POWs themselves also helps conform the food to the POWs’ habitual diet.245

9.13.1.2 Additional Food for Certain Groups. The Detaining Power shall supply 

POWs who work with such additional rations as are necessary for the labor on which they are 

employed.246

9.13.1.3 No Collective Disciplinary Measures Affecting Food. Collective 

disciplinary measures affecting food are prohibited.247 The use of food as an inducement to 

recalcitrant POWs to restore order in a POW camp is permissible.248

9.13.1.4 Messing and Means for Preparing Additional Food. Adequate premises 

shall be provided for messing.249 Supervision of messes by the POWs themselves shall be 

 

particularly cooperative had to be given protection. Approximately one dozen different classes of camps were 

maintained to make the segregation effective.”).

242 GPW art. 26 (“The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of 

war in good health and to prevent loss of weight or the development of nutritial deficiencies.”).

243 GPW art. 26 (“Account shall also be taken of the habitual diet of the prisoners.”).

244 For example, FINAL REPORT ON THE PERSIAN GULF WAR 585 (“Rations for EPW were nourishing. The usual 

menu consisted of: Four slices of bread w/jam, cheese, 1/4 liter milk or juice for breakfast; 1 US meal ready to eat, 

North Atlantic Treaty Organization, or Saudi rations for lunch; and, beans, tomatoes, rice, meat (lamb or chicken), 

and tea for supper. Items prohibited by local and regional religious beliefs were not served to EPWs. US personnel 

removed these items from ration packets and replaced them with acceptable substitutes.”).

245 GPW COMMENTARY 198 (“The present provision, which is additional to the requirements in the first sentence, 

should ensure that prisoners are provided with food corresponding to their needs, their taste and their habits. 

Paragraph 4 of this same Article [Article 26 of the GPW], which provides that prisoners of war may be associated 

with the preparation of their meals, will facilitate the application of this clause.”).

246 GPW art. 26 (“The Detaining Power shall supply prisoners of war who work with such additional rations as are 

necessary for the labour on which they are employed.”).

247 GPW art. 26 (“Collective disciplinary measures affecting food are prohibited.”).

248 LEVIE, POWS 130 footnote 115 (“During the rioting at Koje-do in Korea in 1952 (see note V-8 infra), in order to 

move recalcitrant Communist prisoners of war to smaller, more manageable, prisoner-of-war compounds where 

control by the Detaining Power could be reestablished, the military authorities of the United Nations Command 

made food available in the new, small compounds and refused to make it available in the old, large compounds. If 

the prisoner of war wanted to eat, he had to move to the new compound. The ICRC Delegate took the position that 

this was collective punishment involving food. The United Nations Command took the position that as food was 

available in the new compounds, to which the prisoners of war were free to move, there was no denial of food to 

them.”).

249 GPW art. 26 (“Adequate premises shall be provided for messing.”).
568

facilitated in every way.250 

POWs shall, as far as possible, be associated with the preparation of their meals; they 

may be employed for that purpose in the kitchens.251 Furthermore, they shall be given the means 

of preparing, themselves, the additional food in their possession.252 For example, the POWs 

should have access to facilities to prepare food purchased at the canteen or received in relief 

packages.

Drinking Water. Sufficient drinking water shall be supplied to POWs.

253 9.13.2

Use of Tobacco. The use of tobacco shall be permitted.254 9.13.3 The Detaining Power 

is not required to give tobacco to POWs, but should offer it for sale at the canteen.255 The 

Detaining Power may impose reasonable restrictions on smoking to ensure that the camp is a 

healthful and safe environment.

9.13.4 Clothing for POWs. Clothing, underwear, and footwear shall be supplied to 

POWs in sufficient quantities by the Detaining Power, which shall make allowance for the 

climate of the region where the POWs are detained.256 The regular replacement and repair of 

these articles shall be assured by the Detaining Power.257 

9.13.4.1 Uniforms for POWs. Uniforms of enemy armed forces captured by the 

Detaining Power should, if suitable for the climate, be made available to clothe POWs.

258 The 

Power to which the POWs belong may send uniforms to the POWs through the Protecting 

Powers or ICRC.259

 250 GPW art. 44 (“Supervision of the mess by the officers themselves shall be facilitated in every way.”); GPW art. 

45 (“Supervision of the mess by the prisoners themselves shall be facilitated in every way.”).

251 GPW art. 26 (“Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they 

may be employed for that purpose in the kitchens.”).

252 GPW art. 26 (“Furthermore, they shall be given the means of preparing, themselves, the additional food in their 

possession.”).

253 GPW art. 26 (“Sufficient drinking water shall be supplied to prisoners of war.”).

254 GPW art. 26 (“The use of tobacco shall be permitted.”).

255 Refer to § 9.17 (Canteens for POWs).

256 GPW art. 27 (“Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient quantities by 

the Detaining Power, which shall make allowance for the climate of the region where the prisoners are detained.”).

257 GPW art. 27 (“The regular replacement and repair of the above articles shall be assured by the Detaining 

Power.”).

258 GPW art. 27 (“Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the 

climate, be made available to clothe prisoners of war.”).

259 For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE 

SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 258 (1948) (“As in the case of food, countries whose 

economic conditions were considerably impaired by the war could not make adequate provision of the clothing of 

the prisoners in their hands. The Powers to which these PW belonged thereupon sent large quantities of uniforms to 

the camps through the ICRC. The object was not only to ensure that PW should have enough clothing, but also to 

give them uniforms of their national forces, which in any case could not be supplied by the detaining Power.”).
569

The GPW does not prohibit providing POWs with uniforms of the armed forces of the 

Detaining Power. If this were necessary, it would be appropriate to remove insignia or alter the 

uniforms, which would reduce the risk that POWs might be mistaken for members of the armed 

forces of the Detaining Power.

260 

Similarly, uniforms or other clothing for POWs may contain markings denoting the 

individuals as POWs because the absence of any such markings may facilitate escape.261 Any 

markings on clothing for POWs must be consistent with the principle of respect for the person 

and honor of the POW and, therefore, may not be humiliating or degrading.262

9.13.4.2 Appropriate Clothing for Work. POWs who work shall receive 

appropriate clothing, wherever the nature of the work demands.263

9.14 MEDICAL ATTENTION FOR INTERNED POWS

In addition to the rules relating to the general rules applicable to the medical care of the 

wounded and sick,264 the following rules also apply to the medical care of POWs who have been 

interned in POW camps.

The GPW and the GWS contemplate that POWs will benefit from the services of retained 

medical personnel or POWs who are trained as medical personnel but not attached to the medical 

service.265 However, the provision in the GPW and the GWS for such personnel does not relieve 

the Detaining Power of its obligations to provide for the medical care of POWs.266

9.14.1 Access to Medical Attention. 

9.14.1.1 Camp Infirmary. Every camp shall have an adequate infirmary where 

POWs may have the attention they require, as well as an appropriate diet.267 Isolation wards 

shall, if necessary, be set aside for cases of contagious or mental disease.268

 260 Cf. GPW COMMENTARY 201 (“Prisoners may in no case be obliged to wear the uniform of the Detaining Power if 

they consider that their honour does not so permit (Article 14, paragraph 1). The Detaining Power must therefore, as 

a minimum, alter those uniforms, in particular by removing all badges of nationality.”).

261 GPW COMMENTARY 201 (“Detaining Powers have never been willing to allow prisoners of war to wear civilian 

clothing, in order not to make escape easier.”).

262 Refer to § 9.5.3 (Protection Against Insults and Public Curiosity). Compare § 10.13.4.1 (No Humiliating 

Clothing).

263 GPW art. 27 (“In addition, prisoners of war who work shall receive appropriate clothing, wherever the nature of 

the work demands.”).

264 Refer to § 7.5.2 (Medical Care of the Wounded and Sick).

265 Refer to § 7.9 (Captured Medical and Religious Personnel).

266 Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

267 GPW art. 30 (“Every camp shall have an adequate infirmary where prisoners of war may have the attention they 

require, as well as appropriate diet.”).

268 GPW art. 30 (“Isolation wards shall, if necessary, be set aside for cases of contagious or mental disease.”).
570

9.14.1.2 Right of POWs to Present Themselves for Examination. POWs may not 

be prevented from presenting themselves to the medical authorities for examination.269

The GPW contemplates that POWs would have daily sick call in which they could 

present themselves for medical examination, even when undergoing disciplinary punishment.270

The right of POWs to present themselves for examination does not mean that POWs must 

necessarily be examined every day by a doctor, nor does it preclude disciplinary punishment if 

POWs abusively make groundless requests for medical examination.271

9.14.1.3 Monthly Medical Inspections. Medical inspections of POWs shall be 

held at least once a month.272 They shall include the checking and the recording of the weight of 

each POW.273 Their purpose shall be, in particular, to supervise the general state of health, 

nutrition, and cleanliness of POWs, and to detect contagious diseases, especially tuberculosis, 

malaria, and venereal disease.274 For this purpose, the most efficient methods available shall be 

employed.275 The GPW gives as an example periodic mass miniature radiography for early 

detection of tuberculosis, but medical experts should be consulted for the best practices.

9.14.2 Medical Treatment for Interned POWs. 

9.14.2.1 Persons Requiring Special Treatment. POWs suffering from serious 

disease, or whose condition necessitates special treatment, a surgical operation, or hospital care, 

must be admitted to any military or civilian medical unit where such treatment can be given, 

even if their repatriation is contemplated in the near future.276 Special facilities shall be afforded 

for the care to be given to the disabled, in particular to the blind, and for their rehabilitation, 

pending repatriation.277

9.14.2.2 Treatment by Medical Personnel of the Power on Which They Depend. 

POWs shall have the attention, preferably, of medical personnel of the Power on which they 

 269 GPW art. 30 (“Prisoners of war may not be prevented from presenting themselves to the medical authorities for 

examination.”).

270 Refer to § 9.27.6.4 (Attendance at Daily Medical Inspection and Medical Attention).

271 Compare § 10.14.1.2 (Right of Internees to Present Themselves for Examination).

272 GPW art. 31 (“Medical inspections of prisoners of war shall be held at least once a month.”).

273 GPW art. 31 (“They shall include the checking and the recording of the weight of each prisoner of war.”).

274 GPW art. 31 (“Their purpose shall be, in particular, to supervise the general state of health, nutrition and 

cleanliness of prisoners and to detect contagious diseases, especially tuberculosis, malaria and venereal disease.”).

275 GPW art. 31 (“For this purpose the most efficient methods available shall be employed, e. g. periodic mass 

miniature radiography for the early detection of tuberculosis.”).

276 GPW art. 30 (“Prisoners of war suffering from serious disease, or whose condition necessitates special treatment, 

a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment 

can be given, even if their repatriation is contemplated in the near future.”).

277 GPW art. 30 (“Special facilities shall be afforded for the care to be given to the disabled, in particular to the 

blind, and for their rehabilitation, pending repatriation.”).
571

depend and, if possible, of their nationality.278 The preference for POWs to have the attention of 

the medical personnel of the Power on which they depend is also reflected in the provisions of 

the GPW and GWS on the duties of retained personnel.279

These medical personnel may be retained personnel or persons who are trained as 

medical personnel but not attached to the medical service in their armed forces.280

9.14.2.3 Certification Recording Treatment. The detaining authorities shall, upon 

request, issue to every POW who has undergone treatment an official certificate indicating the 

nature of his or her illness or injury, and the duration and kind of treatment received.281 A 

duplicate of this certificate shall be forwarded to the Central POW Information Agency.282

9.14.2.4 Cost of Treatment. The costs of treatment, including those of any 

apparatus necessary for the maintenance of POWs in good health, particularly dentures and other 

artificial appliances, and eyeglasses, shall be borne by the Detaining Power.283

9.14.3 Receipt of Medical Supplies. POWs may receive individual parcels and collective 

shipments containing medical supplies.284 However, medical supplies generally are to be sent in 

collective shipments so that they may be properly administered by the camp doctors.285

9.14.4 Inquiry in Certain Cases of Death or Serious Injury. In certain cases of death or 

serious injury of a POW, an official inquiry shall be conducted by the Detaining Power.

286

9.15 RELIGIOUS EXERCISE BY POWS

POWs shall enjoy complete latitude in the exercise of their religious duties, including 

attendance at the service of their faith, on condition that they comply with the disciplinary 

 278 GPW art. 30 (“Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which 

they depend and, if possible, of their nationality.”).

279 Refer to § 7.9.3 (Duties of Retained Personnel).

280 Refer to § 4.9 (Military Medical and Religious Personnel); § 4.5.2.2 (Members Trained as Medical Personnel, but 

Not Attached to the Medical Service).

281 GPW art. 30 (“The detaining authorities shall, upon request, issue to every prisoner who has undergone 

treatment, an official certificate indicating the nature of his illness or injury, and the duration and kind of treatment 

received.”).

282 GPW art. 30 (“A duplicate of this certificate shall be forwarded to the Central Prisoners of War Agency.”).

283 GPW art. 30 (“The costs of treatment, including those of any apparatus necessary for the maintenance of 

prisoners of war in good health, particularly dentures and other artificial appliances, and spectacles, shall be borne 

by the Detaining Power.”).

284 Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

285 Refer to § 9.20.3.2 (Medical Supplies in Relief Shipments).

286 Refer to § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).
572

routine prescribed by the military authorities.287 

The GPW and the GWS contemplate that POWs will benefit from the services of retained 

chaplains or POWs who are ministers of religion without having officiated as chaplains to their 

own forces.288 However, the provision in the GPW and the GWS for such personnel does not 

relieve the Detaining Power of its obligations to provide for the exercise of religion by POWs.289

9.15.1 Premises for Religious Services for POWs. Adequate premises shall be provided 

where religious services may be held.

290 The premises where services are held should be 

sufficiently spacious and clean, and should provide effective shelter to those attending services, 

but need not be set aside exclusively for religious services.291

9.15.2 Chaplains. Chaplains who fall into the hands of the enemy Power and who remain 

or are retained with a view to assisting POWs shall be allowed to minister to them and to 

exercise freely their ministry among POWs of the same religion, in accordance with their 

religious conscience.

292 They shall be allocated among the various camps and labor detachments 

containing POWs belonging to the same forces, speaking the same language, or practicing the 

same religion.293

9.15.3 Appointment of Other Ordained Ministers or Qualified Laypersons. When POWs

do not have the assistance of a retained chaplain or of a POW minister of their faith, a minister 

belonging to the POWs’ or a similar denomination, or in his or her absence a qualified layperson, 

if such a course is feasible from a confessional point of view, shall be appointed, at the request of 

the POWs concerned, to fill this office.294 This appointment, subject to the approval of the 

Detaining Power, shall take place with the agreement of the community of POWs concerned and, 

 287 GPW art. 34 (“Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including 

attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the 

military authorities.”).

288 Refer to § 7.9 (Captured Medical and Religious Personnel).

289 Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

290 GPW art. 34 (“Adequate premises shall be provided where religious services may be held.”).

291 GC COMMENTARY 388 (“It does not seem essential that these premises should be set aside exclusively for 

religious services. The parallel text in the Prisoners of War Convention (Article 34, paragraph 2) speaks of 

‘adequate’ premises. In both cases, it should be understood that the premises where services are held should be 

sufficiently spacious and clean and so built as to give effective shelter to those attending the services.”).

292 GPW art. 35 (“Chaplains who fall into the hands of the enemy Power and who remain or are retained with a view 

to assisting prisoners of war, shall be allowed to minister to them and to exercise freely their ministry amongst 

prisoners of war of the same religion, in accordance with their religious conscience.”).

293 GPW art. 35 (“They shall be allocated among the various camps and labour detachments containing prisoners of 

war belonging to the same forces, speaking the same language or practising the same religion.”).

294 GPW art. 37 (“When prisoners of war have not the assistance of a retained chaplain or of a prisoner of war 

minister of their faith, a minister belonging to the prisoners’ or a similar denomination, or in his absence a qualified 

layman, if such a course is feasible from a confessional point of view, shall be appointed, at the request of the 

prisoners concerned, to fill this office.”).
573

wherever necessary, with the approval of the local religious authorities of the same faith.295 The 

person thus appointed shall comply with all regulations established by the Detaining Power in 

the interests of discipline and military security.296

9.16 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES

While respecting the individual preferences of every POW, the Detaining Power shall 

encourage the practice of intellectual, educational, and recreational pursuits, and sports and 

games, among POWs, and shall take the measures necessary to ensure the exercise thereof by 

providing them with adequate premises and necessary equipment.

297 Adequate premises and 

necessary equipment may include, for example, musical instruments, theatrical accessories, 

books, language courses, recreation rooms, or soccer fields.298

9.16.1 Voluntariness of the Activities. The Detaining Power should seek to encourage 

the POWs in engaging in these activities, while respecting their individual preferences. For 

example, it would be prohibited to compel POWs to listen to propaganda or to punish them if 

they do not participate.

299 

On the other hand, as reflected in U.S. practice, censoring educational or intellectual 

materials for security reasons or to refrain from providing POWs with anti-democratic political 

 295 GPW art. 37 (“This appointment, subject, to the approval of the Detaining Power, shall take place with the 

agreement of the community of prisoners concerned and, wherever necessary, with the approval of the local 

religious authorities of the same faith.”).

296 GPW art. 37 (“The person thus appointed shall comply with all regulations established by the Detaining Power in 

the interests of discipline and military security.”).

297 GPW art. 38 (“While respecting the individual preferences of every prisoner, the Detaining Power shall 

encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners, 

and shall take the measures necessary to ensure the exercise thereof by providing them with adequate premises and 

necessary equipment.”).

298 For example, GPW COMMENTARY 237 (“During the Second World War the problem was often solved to the 

complete satisfaction of the prisoners of war. They were provided with musical instruments, theatrical accessories, 

books, language courses, recreation rooms, football fields, etc. The necessary equipment was usually supplied by 

relief societies or purchased by the prisoners themselves.”).

299 GPW COMMENTARY 237 (“[W]here propaganda involves inhuman treatment, it is ipso facto contrary to the 

Conventions, since such treatment is expressly prohibited. Where no inhuman treatment is involved, propaganda is 

nevertheless usually dangerous for prisoners of war and contrary to the Conventions, since it may be inconsistent 

with equality of treatment, respect for honour and, in particular, the present provision which affirms the right of 

prisoners to use their leisure time according to their own preferences.”). For example, The Secretary of Defense’s 

Advisory Committee on Prisoners of War, POW The Fight Continues After The Battle: The Report of the Secretary 

of Defense’s Advisory Committee on Prisoners of War 10-11 (Aug. 1955) (“[T]he enemy had established a system 

of indoctrination courses. The prisoner might start the hard way—and be punished by restricted rations and other 

privations. If he began to show the ‘proper spirit’—to cooperate with his captors—he was lectured and handed 

Communist literature. A docile prisoner who read the literature and listened politely to the lectures, was graduated 

to a better class. Finally he might be sent to ‘Peaceful Valley.’ In this lenient camp the food was relatively good. 

Prisoners might even have tobacco. And here they were given all sorts of Marxian propaganda. The graduates from 

‘Peaceful Valley’ and others who accepted Communist schooling were called ‘Progressives.’ Prisoners who refused 

to go along with the program often remained in tougher circumstances. They were considered ‘Reactionaries.’”).
574

propaganda would be permissible.300 Such censorship would be consistent with the general 

authority of the Detaining Power to censor POW correspondence and shipments with a view 

towards deleting or confiscating matter prejudicial to its military security.301 

9.16.2 Education. The GPW does not provide specifically for the Detaining Power to 

grant facilities for POWs to continue their studies or to take up new subjects as the GC does for 

internees.302 Nonetheless, as the duration of detention increases, the Detaining Power should 

make an effort to do so as part of its general obligation to encourage intellectual and educational 

pursuits among POWs.303

To advance educational opportunities for POWs, the Detaining Power may seek ways to 

encourage and assist them in teaching one another.304

9.16.3 Opportunities for Physical Exercise and for Being Outdoors. POWs shall have 

opportunities for taking physical exercise, including sports and games, and for being outdoors.305 

Sufficient open spaces shall be provided for this purpose in all camps.306

9.16.4 Contributions by Sources Apart From the Detaining Power. Apart from the 

Detaining Power, POWs may receive assistance from a variety of sources that allow them to

engage in intellectual, physical, and recreational activities.

 300 For example, Office of the Provost Marshal General, World War II - A Brief History 443 (1946) (“Libraries and 

reading rooms were permitted to be maintained by prisoners, subject to censorship of the reading material. This 

censorship was exercised largely at the camp level. As time went on, however, increasing staff supervision was 

exercised by the Office of The Provost Marshal General, since quantities of reading material were available from 

welfare agencies and other sources, and censorship at the camp level was often impractical. Supervision was 

exercised by directives, correspondence with camps, and extensive liaison with welfare agencies and the Office of 

Censorship. Publications which related to military matters or which contained anti-democratic political propaganda 

were excluded.”).

301 Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

302 Refer to § 10.16.2 (Education).

303 For example, Office of the Provost Marshal General, World War II - A Brief History 443 (1946) (“The need of 

educating prisoners became, progressively, of increasing importance and was reflected in additional coverage in the 

official regulations and directives. Opportunities developed for prisoners to receive further education, subject to 

certain limitations which were required because of the prisoners’ status. At the beginning the prisoners themselves 

took the initiative, aided by relief societies. Once launched, their efforts were given all necessary aid from the War 

Department, whether the courses were at elementary, secondary, or collegiate level.”).

304 DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The United States 

Army, 1776-1945, 160 (Jun. 24, 1955) (“The War Department encouraged the PW’s to organize formal study 

courses and allowed them to select a director of studies from their group to organize and promote educational and 

recreational activities. The PW’s also selected qualified teachers and instructors who were given sufficient free time 

to carry out their educational work. These were paid the standard rate for their educational duties when the work 

excluded them from other paid labor. The expenses of the educational program, including the pay of the director 

and teachers, came from the PW fund of the camp served.”).

305 GPW art. 38 (“Prisoners shall have opportunities for taking physical exercise, including sports and games, and 

for being out of doors.”).

306 GPW art. 38 (“Sufficient open spaces shall be provided for this purpose in all camps.”).
575

For example, relief organizations, including the ICRC, may contribute to ensuring that 

POWs have opportunities for intellectual, physical, and recreational activities.307 In addition, 

POWs may receive shipments that are intended to allow them to engage in these activities.308 

Profits from the canteen may also be used for this purpose.

309

9.17 CANTEENS FOR POWS

Canteens shall be established in all camps, where POWs may procure foodstuffs, soap 

and tobacco, and ordinary articles for daily use.

310 The purpose is to improve the morale of 

POWs by offering goods that are beyond the minimum necessities.311

9.17.1 Establishment of Canteens. Canteens should be established within a reasonable 

period of time, such as after more basic camp facilities have been established and similar 

facilities have been established for U.S. forces in the area. In conflicts of short duration or where 

POWs are to be transferred to another party to the conflict for longer-term internment, it may be 

unnecessary to establish a canteen.

9.17.1.1 “Comfort Pack” Instead of Canteen and Advance of Pay. Before 

canteens can be established, the need for a canteen may be mitigated if POWs are provided a free 

“comfort pack.” The “comfort pack” was developed during Operation DESERT STORM for U.S. 

military personnel during the period before opening of exchanges in which such items were 

available for purchase. Comfort packs were provided to enemy POWs for similar reasons.312

9.17.2 Canteen Stock and Prices. Canteens are like a base or post exchange for POWs. 

The canteen stock should include foodstuffs, soap, tobacco, and other ordinary articles for daily 

use, but need not include luxury items. Ordinary articles for daily use may include, but are not 

limited to, items such as correspondence materials (e.g., stationary, pencils, pens, ink, stamps), 

supplies for repairing personal effects (e.g., buttons, thread, shoe laces), personal hygiene 

articles, tobacco, water, soft drinks, other non-alcoholic beverages, and reading materials.313

 307 Refer to § 9.33.2 (Access by Relief Societies and Other Organizations).

308 Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

309 Refer to § 9.17.3 (Camp Canteen Management and Profits).

310 GPW art. 28 (“Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and 

tobacco and ordinary articles in daily use.”).

311 LEVIE, POWS 143 (“The existence of the canteen and the availability for sale of canteen-type articles has an 

affirmative effect on morale the extent of which is incalculable.”).

312 For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General of 

the Army, Enemy Prisoner of War Health and Comfort Pack (Oct. 28, 1994) (“In the 1991 Gulf War, the U.S. Army 

issued Iraqi EPW health and comfort packs provided by the ICRC or from U.S. stocks (that is, sundry packs for U.S. 

soldiers), but did not establish canteens within the EPW camps due to the short duration of the conflict and EPW 

transfer to Saudi Arabian authorities. Tobacco was provided separately, gratis.”).

313 GPW COMMENTARY 203 (“The term ‘ordinary articles in daily use’ means, in addition to soap and tobacco, 

which are specifically mentioned: (a) all necessary supplies for correspondence (paper, pencils, pens, ink, stamps, 

etc.); (b) all necessary toilet articles (towels, brushes, razors, combs, nail scissors, etc.); (c) all necessary supplies for 
576

The canteen need not stock alcoholic beverages.314 

The prices at canteens shall never be in excess of local market prices.315

9.17.3 Camp Canteen Management and Profits. Canteen profits shall be used for the 

benefit of the POWs, and a special fund shall be created for this purpose.316 The POW 

Representative shall have the right to collaborate in the management of the canteen and of this 

fund.317 The wishes expressed by the POWs should be considered to the extent consistent with 

camp regulations, and the profits should be used whenever needed to improve the conditions for 

POWs.318

9.17.3.1 Use of Canteen Profits for Working Pay of the POW Representative. 

Canteen profits should also be used for working pay of the POW Representative, of his or her 

advisers, if any, and of his or her assistants.

319

9.17.3.2 Disposition of Canteen Profits Upon Camp Closure. When a camp is 

closed, the credit balance of the special fund shall be handed to an international welfare 

foundation, to be employed for the benefit of POWs of the same nationality as those who have 

contributed to the fund.

320 In case of a general repatriation, the profits shall be kept by the 

Detaining Power, subject to any agreement to the contrary between the Powers concerned.321

9.18 FINANCIAL RESOURCES OF POWS

9.18.1 Detaining Power Regulations on the Maximum Amount of Money in POW 

Possession. Upon the outbreak of hostilities, and pending an arrangement on this matter with the 

 

repairing personal effects (buttons, thread, needles, shoe-laces, etc.); (d) miscellaneous articles (pocket torches and 

batteries, string, pen-knives, handkerchiefs, etc.).”).

314 GPW COMMENTARY 203 (“The camp authorities may prohibit the sale of alcoholic drinks, but must permit the 

sale of all other health-giving, refreshing or fortifying beverages, hot or cold, and, if possible, milk.”).

315 GPW art. 28 (“The tariff shall never be in excess of local market prices.”).

316 GPW art. 28 (“The profits made by camp canteens shall be used for the benefit of the prisoners; a special fund 

shall be created for this purpose.”).

317 GPW art. 28 (“The prisoners’ representative shall have the right to collaborate in the management of the canteen 

and of this fund.”).

318 GPW COMMENTARY 204 (“It must be emphasized that, in accordance with the present paragraph, the fund must 

be used for the benefit of the prisoners. The wishes expressed by the prisoners must therefore be taken into 

consideration, to the extent that they do not run contrary to the regulations ensuring good administration and 

discipline in the camp. The Detaining Power may not utilize canteen profits to make up any shortcomings for which 

it is responsible. On the other hand, it is also recommended that canteen profits should not be hoarded, but should 

be utilized whenever needed in order to improve the lot of the prisoners.”).

319 Refer to § 9.24.4.5 (Working Pay of POW Representatives, Advisers, and Assistants).

320 GPW art. 28 (“When a camp is closed down, the credit balance of the special fund shall be handed to an 

international welfare organization, to be employed for the benefit of prisoners of war of the same nationality as those 

who have contributed to the fund.”).

321 GPW art. 28 (“In case of a general repatriation, such profits shall be kept by the Detaining Power, subject to any 

agreement to the contrary between the Powers concerned.”).
577

Protecting Power, the Detaining Power may determine the maximum amount of money in cash 

or in any similar form that POWs may have in their possession.322 Any amount in excess, which 

was properly in their possession and which has been taken or withheld from them, shall be 

placed to their account, together with any monies deposited by them, and shall not be converted 

into any other currency without their consent.323

9.18.2 Purchases Outside the POW Camp. If POWs are permitted to purchase services or 

commodities outside the camp “against payment in cash,” such payments shall be made by the 

POW himself or herself or by the camp administration who will charge them to the accounts of 

the POWs concerned.324 The Detaining Power will establish the necessary rules in this 

respect.325

9.18.3 Advance of Pay. The Detaining Power shall grant all POWs a monthly advance of 

pay, the amount of which shall be fixed by conversion into the currency of the Detaining

Power.

326 

This money allows POWs to purchase items at the canteen. This money may be paid in 

scrip or vouchers that can be used only in the POW camp, to prevent POWs from having or 

hoarding currency that might facilitate their escape.

Since the promulgation of the GPW, advances of pay to POWs by the Detaining Power 

have been infrequent.

327

9.18.3.1 GPW Specified Amounts for Monthly Advances of Pay. Article 60 of the 

 322 GPW art. 58 (“Upon the outbreak of hostilities, and pending an arrangement on this matter with the Protecting 

Power, the Detaining Power may determine the maximum amount of money in cash or in any similar form, that 

prisoners may have in their possession.”).

323 GPW art. 58 (“Any amount in excess, which was properly in their possession and which has been taken or 

withheld from them, shall be placed to their account, together with any monies deposited by them, and shall not be 

converted into any other currency without their consent.”).

324 GPW art. 58 (“If prisoners of war are permitted to purchase services or commodities outside the camp against 

payment in cash, such payments shall be made by the prisoner himself or by the camp administration who will 

charge them to the accounts of the prisoners concerned.”).

325 GPW art. 58 (“The Detaining Power will establish the necessary rules in this respect.”).

326 GPW art. 60 (“The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of 

which shall be fixed by conversion, into the currency of the said Power, of the following amounts: ...”).

327 For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General of 

the Army, Enemy Prisoner of War Health and Comfort Pack (Oct. 28, 1994) (“U.S. and allied or Coalition 

personnel held as prisoners of war during the Korean, Vietnam and 1991 Gulf Wars were not provided an advance 

of pay by their captors. Although members of the Panamanian Defense Force were not entitled to EPW status, the 

United States Army provided an advance of pay during Operation Just Cause (1989-90); the process proved 

cumbersome and unnecessarily complicated, as there was no budget or budget item designated for EPW advance of 

pay. The money was not recouped from the Government of Panama. No record could be found of the establishment 

of an advance of pay system by any nation in any conflict since promulgation of the 1949 GPW.”).
578

GPW specifies the following amounts for monthly advances of pay:

328

• Category I: POWs ranking below sergeants: eight Swiss francs.329

• Category II: Sergeants and other non-commissioned officers, or POWs of equivalent 

rank: twelve Swiss francs.330

• Category III: Warrant officers and commissioned officers below the rank of major or 

POWs of equivalent rank: fifty Swiss francs.331

• Category IV: Majors, lieutenant-colonels, colonels, or POWs of equivalent rank: sixty 

Swiss francs.332

• Category V: General officers or POWs of equivalent rank: seventy-five Swiss francs.333

“POWs of equivalent rank” refers to POWs, such as persons authorized to accompany the 

armed forces, who are not members of the armed forces and thus do not have a military rank.334

9.18.3.2 Special Agreement to Modify the Amount of Advances of Pay. The 

parties to the conflict concerned may, by special agreement, modify the amount of advances of 

pay due to POWs of the categories specified in Article 60 of the GPW.

335 

9.18.3.3 Procedure for Limiting Amounts Drawn From Accounts Pending Special 

Agreement. If the amounts indicated in Article 60 of the GPW would be unduly high compared 

with the pay of the Detaining Power’s armed forces or would, for any reason, seriously 

embarrass the Detaining Power, then, pending the conclusion of a special agreement with the 

Power on which the POWs depend to vary the amounts indicated above, the Detaining Power:336

 328 GPW art. 60 (“The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of 

which shall be fixed by conversion, into the currency of the said Power, of the following amounts:”).

329 GPW art. 60 (“Category I: Prisoners ranking below sergeants: eight Swiss francs.”).

330 GPW art. 60 (“Category II: Sergeants and other non-commissioned officers, or prisoners of equivalent rank: 

twelve Swiss francs.”).

331 GPW art. 60 (“Category III: Warrant officers and commissioned officers below the rank of major or prisoners of 

equivalent rank: fifty Swiss francs.”).

332 GPW art. 60 (“Category IV: Majors, lieutenant-colonels, colonels or prisoners of equivalent rank: sixty Swiss 

francs.”).

333 GPW art. 60 (“Category V: General officers or prisoners of war of equivalent rank: seventy-five Swiss francs.”).

334 Refer to § 9.22.4.1 (Communication of Titles and Ranks).

335 GC art. 60 (“However, the Parties to the conflict concerned may by special agreement modify the amount of 

advances of pay due to prisoners of the preceding categories.”).

336 GPW art. 60 (“Furthermore, if the amounts indicated in the first paragraph above would be unduly high 

compared with the pay of the Detaining Power’s armed forces or would, for any reason, seriously embarrass the 

Detaining Power, then, pending the conclusion of a special agreement with the Power on which the prisoners depend 

to vary the amounts indicated above, the Detaining Power:”).
579

• shall continue to credit the accounts of the POWs with the amounts indicated in the first 

paragraph of Article 60 of the GPW;

337

• may temporarily limit the amount made available from these advances of pay to POWs

for their own use, to sums that are reasonable, but that, for Category I, shall never be 

inferior to the amount that the Detaining Power gives to the members of its own armed 

forces.338

The reasons for any limitations will be given without delay to the Protecting Power.339

9.18.3.4 Reimbursement by the Power on Which the POWs Depend. Advances of 

pay, issued to POWs in conformity with Article 60 of the GPW, shall be considered as made on 

behalf of the Power on which they depend.340

Such advances of pay, as well as all payments made by the Power on which the POWs 

depend under the third paragraph of Article 63 of the GPW (payments made by the POW in their 

own country341) and Article 68 of the GPW (claims by POWs for compensation for personal 

loss342), shall form the subject of arrangements between the Powers concerned, at the close of 

hostilities.343

9.18.4 Supplementary Pay From the Power on Which the POWs Depend. The Detaining 

Power shall accept for distribution as supplementary pay to POWs sums that the Power on which 

the POWs depend may forward to them, on condition that the sums to be paid shall be the same 

for each POW of the same category, shall be payable to all POWs of that category depending on 

that Power, and shall be placed in their separate accounts, at the earliest opportunity, in 

accordance with the provisions of Article 64 of the GPW.

344 Such supplementary pay shall not 

 337 GPW art. 60 (“(a) shall continue to credit the accounts of the prisoners with the amounts indicated in the first 

paragraph above;”).

338 GPW art. 60 (“(b) may temporarily limit the amount made available from these advances of pay to prisoners of 

war for their own use, to sums which are reasonable, but which, for Category I, shall never be inferior to the amount 

that the Detaining Power gives to the members of its own armed forces.”).

339 GPW art. 60 (“The reasons for any limitations will be given without delay to the Protecting Power.”).

340 GPW art. 67 (“Advances of pay, issued to prisoners of war in conformity with Article 60, shall be considered as 

made on behalf of the Power on which they depend.”).

341 Refer to § 9.18.5.1 (Payments Made in the POW’s Own Country).

342 Refer to § 9.19.6.1 (Claims for Compensation From Injury or Other Disability Arising Out of Work); § 9.18.7

(Claims by POWs in Respect of Personal Loss).

343 GPW art. 67 (“Such advances of pay, as well as all payments made by the said Power under Article 63, third 

paragraph, and Article 68, shall form the subject of arrangements between the Powers concerned, at the close of 

hostilities.”).

344 GPW art. 61 (“The Detaining Power shall accept for distribution as supplementary pay to prisoners of war sums 

which the Power on which the prisoners depend may forward to them, on condition that the sums to be paid shall be 

the same for each prisoner of the same category, shall be payable to all prisoners of that category depending on that 

Power, and shall be placed in their separate accounts, at the earliest opportunity, in accordance with the provisions 

of Article 64.”).
580

relieve the Detaining Power of any obligation under the GPW.

345

9.18.5 Remittances and Other Money Transfers. POWs shall be permitted to receive 

remittances of money addressed to them individually or collectively.346

Every POW shall have at his or her disposal the credit balance of his or her account as 

provided for in the Article 64 of the GPW, within the limits fixed by the Detaining Power, which 

shall make such payments as are requested.347 Subject to financial or monetary restrictions that 

the Detaining Power regards as essential, POWs may also have payments made abroad.348 In 

this case, payments addressed by POWs to dependents shall be given priority.349

9.18.5.1 Payments Made in the POW’s Own Country. In any event, and subject to 

the consent of the Power on which they depend, POWs may have payments made in their own 

country, as follows: 

• The Detaining Power shall send to the Power on which the POWs depend, through the 

Protecting Power, a notification giving all the necessary particulars concerning the 

POWs, the beneficiaries of the payments, and the amount of the sums to be paid, 

expressed in the Detaining Power’s currency.350

• This notification shall be signed by the POWs and countersigned by the camp 

commander.351

• The Detaining Power shall debit the POWs’ accounts by a corresponding amount; the 

sums thus debited shall be placed by it to the credit of the Power on which the POWs

depend.352

 345 GPW art. 61 (“Such supplementary pay shall not relieve the Detaining Power of any obligation under this 

Convention.”).

346 GPW art. 63 (“Prisoners of war shall be permitted to receive remittances of money addressed to them

individually or collectively.”).

347 GPW art. 63 (“Every prisoner of war shall have at his disposal the credit balance of his account as provided for in 

the following Article, within the limits fixed by the Detaining Power, which shall make such payments as are 

requested.”).

348 GPW art. 63 (“Subject to financial or monetary restrictions which the Detaining Power regards as essential, 

prisoners of war may also have payments made abroad.”).

349 GPW art. 63 (“In this case payments addressed by prisoners of war to dependents shall be given priority.”).

350 GPW art. 63 (“In any event, and subject to the consent of the Power on which they depend, prisoners may have 

payments made in their own country, as follows: the Detaining Power shall send to the aforesaid Power through the 

Protecting Power, a notification giving all the necessary particulars concerning the prisoners of war, the 

beneficiaries of the payments, and the amount of the sums to be paid, expressed in the Detaining Power’s 

currency.”).

351 GPW art. 63 (“The said notification shall be signed by the prisoners and countersigned by the camp 

commander.”).

352 GPW art. 63 (“The Detaining Power shall debit the prisoners' account by a corresponding amount; the sums thus 

debited shall be placed by it to the credit of the Power on which the prisoners depend.”).
581

To apply the foregoing provisions, the Detaining Power may usefully consult the Model 

Regulations in Annex V of the GPW.

353

9.18.6 POW Accounts. The Detaining Power shall hold an account for each POW, 

showing at least the following:354

• the amounts due to the POW or received by him or her as advances of pay, as working 

pay or derived from any other source;

• the sums in the currency of the Detaining Power that were taken from him or her;

• the sums taken from the POW and converted at his or her request into the currency of that

Power;

• the payments made to the POW in cash, or in any other similar form; 

• the payments made on his or her behalf and request; and

• the sums transferred for payments made in a POW’s own country under the third 

paragraph of Article 63 of the GPW.

355

Every item entered in the account of a POW shall be countersigned or initialed by the 

POW, or by the POW Representative acting on his or her behalf.356

POWs shall at all times be afforded reasonable facilities for consulting and obtaining 

copies of their accounts, which may likewise be inspected by the representatives of the 

Protecting Powers at the time of visits to the camp.357

9.18.6.1 Cash in POW Hands Taken at the Time of Capture. Cash that was taken 

from POWs, in accordance with Article 18 of the GPW, at the time of their capture, and that is in 

the currency of the Detaining Power, shall be placed to their separate accounts, in accordance 

 353 GPW art. 63 (“To apply the foregoing provisions, the Detaining Power may usefully consult the Model 

Regulations in Annex V of the present Convention.”).

354 GPW art. 64 (“The Detaining Power shall hold an account for each prisoner of war, showing at least the 

following: (1) The amounts due to the prisoner or received by him as advances of pay, as working pay or derived 

from any other source; the sums in the currency of the Detaining Power which were taken from him; the sums taken 

from him and converted at his request into the currency of the said Power. (2) The payments made to the prisoner in 

cash, or in any other similar form; the payments made on his behalf and at his request; the sums transferred under 

Article 63, third paragraph.”).

355 Refer to § 9.18.5.1 (Payments Made in the POW’s Own Country).

356 GPW art. 65 (“Every item entered in the account of a prisoner of war shall be countersigned or initialled by him, 

or by the prisoners’ representative acting on his behalf.”).

357 GPW art. 65 (“Prisoners of war shall at all times be afforded reasonable facilities for consulting and obtaining 

copies of their accounts, which may likewise be inspected by the representatives of the Protecting Powers at the time 

of visits to the camp.”).
582

with the Article 64 of the GPW.

358

The amounts, in the currency of the Detaining Power, due to the conversion of sums in 

other currencies that are taken from the POWs at the same time, shall also be credited to their 

separate accounts.359

9.18.6.2 Personal Account in the Event of Transfers to Another POW Camp. 

When POWs are transferred from one camp to another, their personal accounts will follow 

them.360 In case of transfer from one Detaining Power to another, the monies that are their 

property and are not in the currency of the Detaining Power will follow them.361 POWs shall be 

given certificates for any other monies standing to the credit of their accounts.362

9.18.6.3 Periodic Notification of the Amount of the Accounts of POWs. The 

parties to the conflict concerned may agree to notify to each other at specific intervals, through 

the Protecting Power, the amount of the accounts of the POWs.

363

9.18.6.4 Statements of Credit Balance on Termination of Captivity. On the 

termination of captivity, through the release of a POW or the POW’s repatriation, the Detaining 

Power shall give him or her a statement, signed by an authorized officer of that Power, showing 

the credit balance then due to the POW.

364

The Detaining Power shall also send through the Protecting Power to the government 

upon which the POWs depend lists giving all appropriate particulars of all POWs whose 

captivity has been terminated by repatriation, release, escape, death, or any other means, and 

showing the amount of their credit balances.365 Such lists shall be certified on each sheet by an 

 358 GPW art. 59 (“Cash which was taken from prisoners of war, in accordance with Article 18, at the time of their 

capture, and which is in the currency of the Detaining Power, shall be placed to their separate accounts, in 

accordance with the provisions of Article 64 of the present Section.”). Refer to § 9.7.4.1 (Unexplained Possession of 

Large Sums of Money by POWs); § 9.18.1 (Detaining Power Regulations on the Maximum Amount of Money in 

POW Possession).

359 GPW art. 59 (“The amounts, in the currency of the Detaining Power, due to the conversion of sums in other 

currencies that are taken from the prisoners of war at the same time, shall also be credited to their separate 

accounts.”).

360 GPW art. 65 (“When prisoners of war are transferred from one camp to another, their personal accounts will 

follow them.”).

361 GPW art. 65 (“In case of transfer from one Detaining Power to another, the monies which are their property and 

are not in the currency of the Detaining Power will follow them.”).

362 GPW art. 65 (“They shall be given certificates for any other monies standing to the credit of their accounts.”).

363 GPW art. 65 (“The Parties to the conflict concerned may agree to notify to each other at specific intervals 

through the Protecting Power, the amount of the accounts of the prisoners of war.”).

364 GPW art. 66 (“On the termination of captivity, through the release of a prisoner of war or his repatriation, the 

Detaining Power shall give him a statement, signed by an authorized officer of that Power, showing the credit 

balance then due to him.”).

365 GPW art. 66 (“The Detaining Power shall also send through the Protecting Power to the government upon which 

the prisoner of war depends, lists giving all appropriate particulars of all prisoners of war whose captivity has been 

terminated by repatriation, release, escape, death or any other means, and showing the amount of their credit 

balances.”).
583

authorized representative of the Detaining Power.366

These rules may be varied by mutual agreement between any two parties to the 

conflict.367

9.18.6.5 Responsibility for Credit Balance Due From the Detaining Power on the 

Termination of Captivity. The Power on which the POWs depend shall be responsible for 

settling with each POW any credit balance due to him or her from the Detaining Power on the 

termination of the POW’s captivity.368

9.18.7 Claims by POWs in Respect of Personal Loss. Any claim by a POW for 

compensation in respect of personal effects, monies, or valuables impounded by the Detaining 

Power under Article 18 of the GPW and not forthcoming on his or her repatriation, or in respect 

of loss alleged to be due to the fault of the Detaining Power or any of its servants, shall likewise 

be referred to the Power on which the POW depends.369 Nevertheless, any such personal effects 

required for use by the POW while in captivity shall be replaced at the expense of the Detaining 

Power.370

The Detaining Power will, in all cases, provide the POW with a statement, signed by a 

responsible officer, showing all available information regarding the reasons why such effects, 

monies, or valuables have not been restored to him or her.

371 A copy of this statement will be 

forwarded to the Power on which he or she depends through the Central POW Information 

Agency provided for in Article 123 of the GPW.

372

9.19 POW LABOR

The Detaining Power may use the labor of POWs who are physically fit, taking into 

account their age, sex, rank, and physical aptitude, and with a view particularly to maintaining 

 366 GPW art. 66 (“Such lists shall be certified on each sheet by an authorized representative of the Detaining 

Power.”).

367 GPW art. 66 (“Any of the above provisions of this Article may be varied by mutual agreement between any two 

Parties to the conflict.”).

368 GPW art. 66 (“The Power on which the prisoner of war depends shall be responsible for settling with him any 

credit balance due to him from the Detaining Power on the termination of his captivity.”).

369 GPW art. 68 (“Any claim by a prisoner of war for compensation in respect of personal effects, monies or 

valuables impounded by the Detaining Power under Article 18 and not forthcoming on his repatriation, or in respect 

of loss alleged to be due to the fault of the Detaining Power or any of its servants, shall likewise be referred to the 

Power on which he depends.”).

370 GPW art. 68 (“Nevertheless, any such personal effects required for use by the prisoners of war whilst in captivity 

shall be replaced at the expense of the Detaining Power.”).

371 GPW art. 68 (“The Detaining Power will, in all cases, provide the prisoner of war with a statement, signed by a 

responsible officer, showing all available information regarding the reasons why such effects, monies or valuables 

have not been restored to him.”).

372 GPW art. 68 (“A copy of this statement will be forwarded to the Power on which he depends through the Central 

Prisoners of War Agency provided for in Article 123.”).
584

them in a good state of physical and mental health.373

9.19.1 Determining the Appropriate Labor Assignment. In determining whether labor 

should be compelled, as well as the appropriate labor assignment for a POW, the POW’s age, 

gender, rank, and physical aptitude should be considered.374 

9.19.1.1 Labor Assignment – Non-Commissioned Officers. Noncommissioned 

officers shall only be required to do supervisory work.

375 Noncommissioned officers who are 

not required to do supervisory work may ask for other suitable work, which shall, so far as 

possible, be found for them.376

9.19.1.2 Labor Assignment – Officers and Persons of Equivalent Status. If 

officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as 

possible, but they may in no circumstances be compelled to work.377 

9.19.1.3 Labor Assignment – POWs Who May Not Be Compelled to Do Other 

Work. Retained personnel and persons treated like retained personnel (e.g., POWs trained as 

medical personnel who are directed to provide medical care for fellow POWs), however, may not 

be compelled to carry out any work other than that concerned with their medical or religious 

duties.378

POW Representatives and their assistants also shall not be required to perform any other 

work, if the accomplishment of their duties is thereby made more difficult.379

9.19.2 Types of Labor Assignments. 

9.19.2.1 Unhealthy or Dangerous Labor. Unless the POW is a volunteer, he or 

 373 GPW art. 49 (“The Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into 

account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state 

of physical and mental health.”).

374 LEVIE, POWS 218-19 (“[T]he Detaining Power must take into account the age, sex, and physical aptitude of each 

prisoner of war as an individual. It may be assumed that these criteria are to be considered not only in determining 

whether a prisoner of war should be compelled to work, but also in determining the type of work to which the 

particular prisoner of war should be assigned.”).

375 GPW art. 49 (“Non-commissioned officers who are prisoners of war shall only be required to do supervisory 

work.”).

376 GPW art. 49 (“Those not so required may ask for other suitable work which shall, so far as possible, be found for 

them.”).

377 GPW art. 49 (“If officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as 

possible, but they may in no circumstances be compelled to work.”).

378 Refer to § 7.9.5.6 (No Other Compulsory Duties); § 4.5.2.2 (Members Trained as Medical Personnel, but Not 

Attached to the Medical Service); § 4.5.2.3 (Members Who Are Ministers of Religion Without Having Officiated as 

Chaplains to Their Own Forces).

379 Refer to § 9.24.4.1 (Limitations on Other Work Assignments); § 9.24.4.2 (Assistants for the POW 

Representatives).
585

she may not be employed on labor that is of an unhealthy or dangerous nature.380

For example, the removal of landmines or similar devices is considered dangerous 

labor.381 “Similar devices” may be understood to include booby-traps and other devices that are 

similar to landmines.382

When employing POWs on dangerous or unhealthy activities, the Protecting Power or the 

ICRC should assist in verifying the voluntariness of the employment, and the suitability of the 

POW for such hazardous activities (e.g., any special skills or training in relation to the hazards) 

should be considered.383

9.19.2.2 Prohibited Labor Assignments. No POW shall be assigned to labor that 

would be looked upon as humiliating for a member of the Detaining Power’s own forces.384

9.19.2.3 Labor Assignments That May Be Compelled. POWs, like other enemy 

nationals, may not be compelled to take part in operations of war directed against their own 

country.385 POWs may be compelled to do only such work as is included in the following 

classes:

• POW camp administration, installation, and maintenance;

• agriculture;

• industries connected with the production or the extraction of raw materials, and 

manufacturing industries, with the exception of metallurgical, machinery, and chemical 

industries;

• public works and building operations having no military character or purpose;

• transport and handling of stores not of a military character or purpose;

• commercial businesses, including arts and crafts; 

• domestic services; and

 380 GPW art. 52 (“Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy 

or dangerous nature.”).

381 GPW art. 52 (“The removal of mines or similar devices shall be considered as dangerous labour.”).

382 Refer to § 6.12.2 (Definition of Booby-Trap); § 6.12.3 (Definition of “Other Devices” Similar to Mines).

383 For example, 2004 UK MANUAL ¶8.85 footnote 251 (“Argentinian PW who were specialist engineers were used 

in mine-clearance operations at the end of the Falklands conflict, but all were confirmed by the ICRC to be 

volunteers.”).

384 GPW art. 52 (“No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a 

member of the Detaining Power’s own forces.”).

385 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed 

Against Their Own Country).
586

• public utilities having no military character or purpose.

386 

Should the above provisions be infringed, POWs shall be allowed to exercise their right 

of complaint, in conformity with Article 78 of the GPW.387

9.19.3 Suitable Work Conditions. POWs must be granted suitable working conditions, 

especially as regards accommodation, food, clothing, and equipment.

388 For example, POWs 

must be given additional rations or appropriate clothing, as necessary, for their work.389

POWs’ working conditions shall not be inferior to those enjoyed by nationals of the 

Detaining Power employed in similar work.

390 Account shall also be taken of climatic 

conditions.391

9.19.3.1 Application of National Legislation for the Protection of Labor and 

Regulations for Worker Safety. The Detaining Power, in utilizing the labor of POWs, shall 

ensure that in areas in which such POWs are employed, the national legislation concerning the 

protection of labor, and, more particularly, the regulations for the safety of workers, are duly 

applied.392 For example, labor conditions for POWs working in the United States would be 

determined by U.S. Federal labor and safety laws.

Conditions of labor shall in no case be rendered more arduous by disciplinary 

measures.393 For example, the Detaining Power may not lower safety standards or disregard the 

requirements for protective equipment as a punishment for misbehavior.394

 386 GPW art. 50 (“Besides work connected with camp administration, installation or maintenance, prisoners of war 

may be compelled to do only such work as is included in the following classes: (a) agriculture; (b) industries 

connected with the production or the extraction of raw materials, and manufacturing industries, with the exception 

of metallurgical, machinery and chemical industries; public works and building operations which have no military 

character or purpose; (c) transport and handling of stores which are not military in character or purpose; (d) 

commercial business, and arts and crafts; (e) domestic service; (f) public utility services having no military character 

or purpose.”).

387 GPW art. 50 (“Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right 

of complaint, in conformity with Article 78.”). Refer to § 9.23 (POW Requests, Complaints).

388 GPW art. 51 (providing that “[p]risoners of war must be granted suitable working conditions, especially as 

regards accommodation, food, clothing and equipment;”).

389 Refer to § 9.13.1.2 (Additional Food for Certain Groups); § 9.13.4.2 (Appropriate Clothing for Work).

390 GPW art. 51 (providing that “such conditions shall not be inferior to those enjoyed by nationals of the Detaining 

Power employed in similar work;”).

391 GPW art. 51 (“[A]ccount shall also be taken of climatic conditions.”).

392 GPW art. 51 (“The Detaining Power, in utilizing the labour of prisoners of war, shall ensure that in areas in 

which such prisoners are employed, the national legislation concerning the protection of labour, and, more 

particularly, the regulations for the safety of workers, are duly applied.”).

393 GPW art. 51 (“Conditions of labour shall in no case be rendered more arduous by disciplinary measures.”).

394 See also LEVIE, POWS 244 (“Thus, a Detaining Power may not lower safety standards, disregard requirements 

for protective equipment, lengthen working hours, withhold required extra rations, etc., as punishment for 

misbehavior. On the other hand, ‘fatigue details’ of not more than two hours a day, or a monetary fine, or the 

withdrawal of extra privileges, all of which are authorized as disciplinary punishment by Article 89, undoubtedly 
587

9.19.3.2 Training and Means of Protection. POWs shall receive training and be 

provided with the means of protection suitable to the work they will have to do and similar to 

those accorded to the nationals of the Detaining Power.395 Subject to the provisions of Article 52 

of the GPW, POWs may be submitted to the normal risks run by these civilian workers.396

9.19.3.3 Limits on the Duration of Labor. The duration of the daily labor of 

POWs, including any travel time, shall not be excessive, and must in no case exceed that 

permitted for civilian workers in the district, who are nationals of the Detaining Power and 

employed on the same work.397

POWs must be allowed, in the middle of the day’s work, a rest of not less than one 

hour.398 This rest will be the same as that to which workers of the Detaining Power are entitled, 

if the latter is of longer duration.399 POWs shall be allowed, in addition, a rest of 24 consecutive 

hours every week, preferably on Sunday or the day of rest in their country of origin.400 

Furthermore, every POW who has worked for one year shall be granted a rest of eight 

consecutive days, during which his or her working pay shall be paid to him or her.

401

If methods of labor, such as piece work, are employed, the length of the working period 

shall not be rendered excessive thereby.402 Piece work refers to the practice of assigning and 

compensating for tasks as opposed to compensating based on the amount of time worked.403 

 

could be imposed, as they obviously do not fall within the ambit of the prohibition; and the extra rations to which 

prisoners of war are entitled under Article 26, when they are engaged in heavy manual labor, could undoubtedly be 

withheld from a prisoner of war who refuses to work, inasmuch as he would no longer meet the requirement for 

entitlement to such extra rations.”).

395 GPW art. 51 (“Prisoners of war shall receive training and be provided with the means of protection suitable to the 

work they will have to do and similar to those accorded to the nationals of the Detaining Power.”).

396 GPW art. 51 (“Subject to the provisions of Article 52, prisoners may be submitted to the normal risks run by 

these civilian workers.”). See also GPW art. 52 (“Unless he be a volunteer, no prisoner of war may be employed on 

labour which is of an unhealthy or dangerous nature. No prisoner of war shall be assigned to labour which would be 

looked upon as humiliating for a member of the Detaining Power’s own forces. The removal of mines or similar 

devices shall be considered as dangerous labour.”). Refer to § 9.19.2.1 (Unhealthy or Dangerous Labor).

397 GPW art. 53 (“The duration of the daily labour of prisoners of war, including the time of the journey to and fro, 

shall not be excessive, and must in no case exceed that permitted for civilian workers in the district, who are 

nationals of the Detaining Power and employed on the same work.”).

398 GPW art. 53 (“Prisoners of war must be allowed, in the middle of the day’s work, a rest of not less than one 

hour.”).

399 GPW art. 53 (“This rest will be the same as that to which workers of the Detaining Power are entitled, if the latter 

is of longer duration.”).

400 GPW art. 53 (“They shall be allowed in addition a rest of twenty-four consecutive hours every week, preferably 

on Sunday or the day of rest in their country of origin.”).

401 GPW art. 53 (“Furthermore, every prisoner who has worked for one year shall be granted a rest of eight 

consecutive days, during which his working pay shall be paid him.”).

402 GPW art. 53 (“If methods of labour such as piece work are employed, the length of the working period shall not 

be rendered excessive thereby.”).

403 DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The United States 

Army, 1776-1945, 120 (Jun. 24, 1955) (“On 26 April 1944, the Secretary of War approved an incentive pay plan for 
588

Thus, the limits on the number of hours of daily work cannot be circumvented by assigning work 

on the basis of tasks completed as opposed to requiring POWs to work a certain number of 

hours.404

9.19.4 Working Pay. The working pay due to POWs shall be fixed in accordance with 

the provisions of Article 62 of the GPW.

405

POWs shall be paid a fair working rate of pay by the detaining authorities directly.

406 

The rate shall be fixed by these authorities, but shall at no time be less than one-fourth of one 

Swiss franc for a full working day.407 The Detaining Power shall inform POWs, as well as the 

Power on which they depend, through the intermediary of the Protecting Power, of the rate of 

daily working pay that it has fixed.408

Working pay shall likewise be paid by the detaining authorities to POWs permanently 

detailed to duties, or to a skilled or semi-skilled occupation, in connection with the 

administration, installation, or maintenance of camps, and to the POWs who are required to carry 

out spiritual or medical duties on behalf of their comrades.409

Working pay of POW Representatives, their advisers, if any, or assistants, also is 

provided for in the GPW.

410

9.19.5 Medical Fitness to Work. The fitness of POWs for work shall be periodically 

verified by medical examinations, at least once a month.411 The examinations shall have 

 

piecework which compensated the PW’s according to the number of units completed, up to a maximum of $1.20 per 

day. The objectives of this plan were to reward hard workers; to penalize laggards; and to encourage a greater 

degree of teamwork among PW laborers.”).

404 LEVIE, POWS 248 (“With respect to hours of daily work, it must be noted, too, that the limitations contained in 

the Article cannot be circumvented by the adoption of piecework, or some other task system, in lieu of a stated 

number of working hours, the third paragraph of Article 53 of the Convention specifically prohibiting the rendering 

of the length of the working day excessive by the use of this method.”).

405 GPW art. 54 (“The working pay due to prisoners of war shall be fixed in accordance with the provisions of 

Article 62 of the present Convention.”).

406 GPW art. 62 (“Prisoners of war shall be paid a fair working rate of pay by the detaining authorities direct.”).

407 GPW art. 62 (“The rate shall be fixed by the said authorities, but shall at no time be less than one-fourth of one 

Swiss franc for a full working day.”).

408 GPW art. 62 (“The Detaining Power shall inform prisoners of war, as well as the Power on which they depend, 

through the intermediary of the Protecting Power, of the rate of daily working pay that it has fixed.”).

409 GPW art. 62 (“Working pay shall likewise be paid by the detaining authorities to prisoners of war permanently 

detailed to duties or to a skilled or semi-skilled occupation in connection with the administration, installation or 

maintenance of camps, and to the prisoners who are required to carry out spiritual or medical duties on behalf of 

their comrades.”).

410 Refer to § 9.24.4.5 (Working Pay of POW Representatives, Advisers, and Assistants).

411 GPW art. 55 (“The fitness of prisoners of war for work shall be periodically verified by medical examinations at 

least once a month.”).
589

particular regard to the nature of the work that the POWs are required to do.412

If any POW considers himself or herself incapable of working, he or she shall be 

permitted to appear before the medical authorities of the camp.413 Physicians or surgeons may 

recommend that the POWs who are, in their opinion, unfit for work, be exempted therefrom.414

9.19.6 Accidents or Disease in Connection With Work. POWs who sustain accidents in 

connection with work, or who contract a disease in the course or in consequence of their work, 

shall receive all the care their condition may require.415 The Detaining Power shall furthermore 

deliver to such POWs a medical certificate enabling them to submit their claims to the Power on 

which they depend, and shall send a duplicate to the Central POW Information Agency provided 

for in Article 123 of the GPW.416 

In certain cases, POWs who meet with accidents in connection with work would receive 

the benefit of the provisions of the GPW as regards repatriation or accommodation in a neutral 

country.417

9.19.6.1 Claims for Compensation From Injury or Other Disability Arising Out of 

Work. Any claim by a POW for compensation in respect of any injury or other disability arising 

out of work shall be referred to the Power on which he or she depends, through the Protecting 

Power.418 In accordance with Article 54 of the GPW, the Detaining Power will, in all cases, 

provide the POW concerned with a statement showing the nature of the injury or disability, the 

circumstances in which it arose, and the particulars of medical or hospital treatment given for 

it.419 This statement will be signed by a responsible officer of the Detaining Power and the 

medical particulars certified by a medical officer.420

 412 GPW art. 55 (“The examinations shall have particular regard to the nature of the work which prisoners of war are 

required to do.”).

413 GPW art. 55 (“If any prisoner of war considers himself incapable of working, he shall be permitted to appear 

before the medical authorities of his camp.”).

414 GPW art. 55 (“Physicians or surgeons may recommend that the prisoners who are, in their opinion, unfit for 

work, be exempted therefrom.”).

415 GPW art. 54 (“Prisoners of war who sustain accidents in connection with work, or who contract a disease in the 

course, or in consequence of their work, shall receive all the care their condition may require.”).

416 GPW art. 54 (“The Detaining Power shall furthermore deliver to such prisoners of war a medical certificate 

enabling them to submit their claims to the Power on which they depend, and shall send a duplicate to the Central 

Prisoners of War Agency provided for in Article 123.”).

417 Refer to § 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities).

418 GPW art. 68 (“Any claim by a prisoner of war for compensation in respect of any injury or other disability 

arising out of work shall be referred to the Power on which he depends, through the Protecting Power.”).

419 GPW art. 68 (“In accordance with Article 54, the Detaining Power will, in all cases, provide the prisoner of war 

concerned with a statement showing the nature of the injury or disability, the circumstances in which it arose and 

particulars of medical or hospital treatment given for it.”).

420 GPW art. 68 (“This statement will be signed by a responsible officer of the Detaining Power and the medical 

particulars certified by a medical officer.”).
590

9.19.7 Labor Detachments. The organization and administration of labor detachments 

shall be similar to those of POW camps.421

Every labor detachment shall remain under the control of, and administratively part of, a 

POW camp.422 The military authorities and the commander of the POW camp shall be 

responsible, under the direction of their government, for the observance of the provisions of the 

GPW in labor detachments that are dependent upon the POW camp.

423

The camp commander shall keep an up-to-date record of the labor detachments 

dependent on the camp, and shall communicate it to the delegates of the Protecting Power, of the 

ICRC, or of other agencies giving relief to POWs, who may visit the camp.424

9.19.8 POWs Working for Private Persons. The treatment of POWs who work for 

private persons, even if the latter are responsible for guarding and protecting them, shall not be 

inferior to that which is provided for by the GPW.425 The Detaining Power, the military 

authorities, and the commander of the camp to which such POWs belong shall be entirely 

responsible for the maintenance, care, treatment, and payment of the working pay of such 

POWs.426

Such POWs shall have the right to remain in communication with the POW 

Representatives in the camps on which they depend.427

9.20 POW CORRESPONDENCE AND RELIEF SHIPMENTS

POWs may send and receive mail and relief shipments, subject to security requirements. 

In addition, POWs benefit from certain postage exemptions.

9.20.1 Capture, Health, or Transfer Card. Immediately upon capture, or not more than 

one week after arrival at a camp, even if it is a transit camp, likewise in case of sickness or 

 421 GPW art. 56 (“The organization and administration of labour detachments shall be similar to those of prisoner of 

war camps.”).

422 GPW art. 56 (“Every labour detachment shall remain under the control of and administratively part of a prisoner 

of war camp.”).

423 GPW art. 56 (“The military authorities and the commander of the said camp shall be responsible, under the 

direction of their government, for the observance of the provisions of the present Convention in labour 

detachments.”).

424 GPW art. 56 (“The camp commander shall keep an up-to-date record of the labour detachments dependent on his 

camp, and shall communicate it to the delegates of the Protecting Power, of the International Committee of the Red 

Cross, or of other agencies giving relief to prisoners of war, who may visit the camp.”).

425 GPW art. 57 (“The treatment of prisoners of war who work for private persons, even if the latter are responsible 

for guarding and protecting them, shall not be inferior to that which is provided for by the present Convention.”).

426 GPW art. 57 (“The Detaining Power, the military authorities and the commander of the camp to which such 

prisoners belong shall be entirely responsible for the maintenance, care, treatment, and payment of the working pay 

of such prisoners of war.”).

427 GPW art. 57 (“Such prisoners of war shall have the right to remain in communication with the prisoners' 

representatives in the camps on which they depend.”).
591

transfer to a hospital or to another camp, every POW shall be enabled to write directly to his or 

her family, on the one hand, and to the Central POW Information Agency provided for in Article 

123 of the GPW, on the other hand, a card similar, if possible, to the model annexed to the GPW

(GPW Annex IV B), informing his or her relatives of his or her capture, address, and state of 

health.428

These cards shall be forwarded as rapidly as possible and may not be delayed in any 

manner.429

9.20.2 POW Correspondence Rights and Quota. POWs shall be allowed to send and 

receive letters and cards.430 

9.20.2.1 POW Correspondence Quota. If the Detaining Power deems it necessary 

to limit the number of letters and cards sent by each POW, this number shall not be less than two 

letters and four cards monthly, exclusive of the capture cards provided for in Article 70 of the 

GPW (GPW Annex IV B), and conforming as closely as possible to the models annexed to the 

GPW (GPW Annex IV C).

431 In addition, the following correspondence also does not count 

toward this quota: 

• formal requests and complaints;

432

• correspondence between a duly appointed POW Representative at a principal camp and a 

POW Representative at a labor camp;

433

• authorized correspondence by chaplains;

434 and

• correspondence by the senior medical officer in a camp with the competent authorities of 

the camp regarding the duties of retained medical personnel.

435

Further limitations on POW correspondence may be imposed only if the Protecting 

 428 GPW art. 70 (“Immediately upon capture, or not more than one week after arrival at a camp, even if it is a transit 

camp, likewise in case of sickness or transfer to hospital or to another camp, every prisoner of war shall be enabled 

to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article 

123, on the other hand, a card similar, if possible, to the model annexed to the present Convention, informing his 

relatives of his capture, address and state of health.”).

429 GPW art. 70 (“The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner.”).

430 GPW art. 71 (“Prisoners of war shall be allowed to send and receive letters and cards.”).

431 GPW art. 71 (“If the Detaining Power deems it necessary to limit the number of letters and cards sent by each 

prisoner of war, the said number shall not be less than two letters and four cards monthly, exclusive of the capture 

cards provided for in Article 70, and conforming as closely as possible to the models annexed to the present 

Convention.”).

432 Refer to § 9.23.2 (Communication of Requests and Complaints).

433 Refer to § 9.24.4.6 (Facilities for Communication).

434 Refer to § 7.9.5.4 (Correspondence by Chaplains).

435 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).
592

Power is satisfied that it would be in the interests of the POWs concerned to do so owing to 

difficulties of translation caused by the Detaining Power’s inability to find sufficient qualified 

linguists to carry out the necessary censorship.436 If limitations must be placed on the 

correspondence addressed to POWs, they may be ordered only by the Power on which the POWs

depend, possibly at the request of the Detaining Power.437 Such letters and cards must be 

conveyed by the most rapid method at the disposal of the Detaining Power.438

9.20.2.2 No Delay in Correspondence for Disciplinary Reasons. Cards and letters 

may not be delayed or retained for disciplinary reasons.439

9.20.2.3 More Rapid Means of Correspondence in Appropriate Cases. POWs 

who have been without news for a long period, or who are unable to receive news from their next 

of kin or to give them news by the ordinary postal route, as well as those who are at a great 

distance from their homes, shall be permitted to send telegrams, the fees being charged against 

the POWs’ accounts with the Detaining Power or paid in the currency at their disposal.440 They 

shall likewise benefit from this measure in cases of urgency.441 

More modern means of communication, such as email, should be considered for POW 

correspondence, as appropriate.

442

9.20.2.4 Language of POW Correspondence. As a general rule, the 

correspondence of POWs shall be written in their native language.443 The parties to the conflict 

may allow correspondence in other languages.444 

9.20.2.5 Handling of Sacks of POW Mail. Sacks containing POW mail must be 

securely sealed and labeled so as clearly to indicate their contents, and must be addressed to 

 436 GPW art. 71 (“Further limitations may be imposed only if the Protecting Power is satisfied that it would be in the 

interests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining 

Power’s inability to find sufficient qualified linguists to carry out the necessary censorship.”).

437 GPW art. 71 (“If limitations must be placed on the correspondance addressed to prisoners of war, they may be 

ordered only by the Power on which the prisoners depend, possibly at the request of the Detaining Power.”).

438 GPW art. 71 (“Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining 

Power; they may not be delayed or retained for disciplinary reasons.”).

439 GPW art. 71 (“Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining 

Power; they may not be delayed or retained for disciplinary reasons.”).

440 GPW art. 71 (“Prisoners of war who have been without news for a long period, or who are unable to receive news 

from their next of kin or to give them news by the ordinary postal route, as well as those who are at a great distance 

from their homes, shall be permitted to send telegrams, the fees being charged against the prisoners of war’s 

accounts with the Detaining Power or paid in the currency at their disposal.”).

441 GPW art. 71 (“They shall likewise benefit by this measure in cases of urgency.”).

442 Refer to § 8.10.3 (Communication With Family).

443 GPW art. 71 (“As a general rule, the correspondence of prisoners of war shall be written in their native 

language.”).

444 GPW art. 71 (“The Parties to the conflict may allow correspondence in other languages.”).
593

“offices of destination.”445 

9.20.3 Receipt of Individual and Collective Relief Shipments for POWs. POWs shall be 

allowed to receive by post, or by any other means, individual parcels or collective shipments 

containing, in particular, foodstuffs, clothing, medical supplies, and articles of a religious, 

educational, or recreational character, which may meet their needs, including books, devotional 

articles, scientific equipment, examination papers, musical instruments, sports outfits, and 

materials allowing POWs to pursue their studies or their cultural activities.

446 Such shipments 

shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the 

GPW.

447 

The only limits that may be placed on these shipments shall be those proposed by the 

Protecting Power in the interest of the POWs themselves, or by the ICRC or any other 

organization giving assistance to the POWs, in respect of their own shipments only, on account 

of exceptional strain on transport or communications.448

9.20.3.1 Separation of Books From Other Relief Supplies. Parcels of clothing and 

foodstuffs may not include books.

449 Books should be separated because the time required for 

censorship of books would likely delay the distribution of other relief supplies.

450

9.20.3.2 Medical Supplies in Relief Shipments. Medical supplies shall, as a rule, 

be sent in collective parcels.451 This rule is meant to ensure that medical supplies can be 

administered by the camp doctors and not by the POWs themselves without medical 

supervision.

452 This rule, however, would not prohibit, in exceptional cases, for example, special 

 445 GPW art. 71 (“Sacks containing prisoner of war mail must be securely sealed and labelled so as clearly to 

indicate their contents, and must be addressed to offices of destination.”).

446 GPW art. 72 (“Prisoners of war shall be allowed to receive by post or by any other means individual parcels or 

collective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious, 

educational or recreational character which may meet their needs, including books, devotional articles, scientific 

equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue 

their studies or their cultural activities.”).

447 GPW art. 72 (“Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by 

virtue of the present Convention.”).

448 GPW art. 72 (“The only limits which may be placed on these shipments shall be those proposed by the Protecting 

Power in the interest of the prisoners themselves, or by the International Committee of the Red Cross or any other 

organization giving assistance to the prisoners, in respect of their own shipments only, on account of exceptional 

strain on transport or communications.”).

449 GPW art. 72 (“Books may not be included in parcels of clothing and foodstuffs.”).

450 GPW COMMENTARY 377 (“As in the first paragraph, it is specified here [in the second paragraph of Article 76 of 

the GPW] that delivery must not be delayed under the pretext of difficulties of censorship; the conditions are usually 

different, however. Except in the case of books, examination requires no linguistic ability and all delay can 

therefore be avoided. This is particularly important in the case of parcels containing perishable goods.”). Compare

§ 10.23.3.1 (Separation of Books From Other Relief Supplies).

451 GPW art. 72 (“Medical supplies shall, as a rule, be sent in collective parcels.”).

452 See GPW COMMENTARY 356 (“From the beginning of the Second World War, parcels of medical supplies 

addressed by name were always sent to the chief medical officer of a camp or hospital or, if there was none, to a 

head nurse, welfare officer or a representative of the local Red Cross. The question is now settled by paragraph 4 of 
594

medication being sent from family members to a POW.

453

9.20.3.3 Special Agreements Concerning Relief Shipments. The conditions for the 

sending of individual parcels and collective shipments shall, if necessary, be the subject of 

special agreements between the Powers concerned, which may in no case delay the receipt by the 

POWs of relief supplies.454 

9.20.3.4 Collective Relief for POWs. In the absence of special agreements 

between the Powers concerned on the conditions for the receipt and distribution of collective 

relief shipments, the rules and regulations concerning collective relief that are annexed to the 

GPW shall be applied (GPW Annex III).

455 

The special agreements referred to above shall in no case restrict the right of POW 

Representatives to take possession of collective relief shipments intended for POWs, to proceed 

to their distribution, or to dispose of them in the interest of the POWs.

456 Nor shall such 

agreements restrict the right of representatives of the Protecting Power, the ICRC, or any other 

organization giving assistance to POWs and responsible for the forwarding of collective 

shipments, to supervise their distribution to the recipients.457

9.20.4 Exemptions From Postal and Shipping Charges. Relief shipments for POWs and 

mail sent by POWs or to them benefit from certain exemptions under international law.

9.20.4.1 Exemption From Dues for Relief Shipments. All relief shipments for 

POWs shall be exempt from import, customs, or other dues.458 

9.20.4.2 GPW Postal Dues Exemption. Under the GPW, correspondence, relief 

shipments, and authorized remittances of money addressed to POWs or sent by them through the 

 

the present Article, which states that, as a rule, medical supplies are to be sent in collective parcels. This solution 

was adopted in the interest of the prisoners of war, who should not have access to medical supplies except under 

medical supervision.”).

453 Compare § 10.23.3.2 (Medical Supplies in Relief Shipments).

454 GPW art. 72 (“The conditions for the sending of individual parcels and collective relief shall, if necessary, be the 

subject of special agreements between the Powers concerned, which may in no case delay the receipt by the 

prisoners of relief supplies.”).

455 GPW art. 73 (“In the absence of special agreements between the Powers concerned on the conditions for the 

receipt and distribution of collective relief shipments, the rules and regulations concerning collective shipments, 

which are annexed to the present Convention, shall be applied.”).

456 GPW art. 73 (“The special agreements referred to above shall in no case restrict the right of prisoners’ 

representatives to take possession of collective relief shipments intended for prisoners of war, to proceed to their 

distribution or to dispose of them in the interest of the prisoners.”).

457 GPW art. 73 (“Nor shall such agreements restrict the right of representatives of the Protecting Power, the 

International Committee of the Red Cross or any other organization giving assistance to prisoners of war and 

responsible for the forwarding of collective shipments, to supervise their distribution to the recipients.”).

458 GPW art. 74 (“All relief shipments for prisoners of war shall be exempt from import, customs and other dues.”). 

See also HAGUE IV REG. art. 16 (“Presents and relief in kind for prisoners of war shall be admitted free of all import 

or other duties, as well as of payments for carriage by the State railways.”).
595

post office, either directly or through the National POW Information Bureau provided for in 

Article 122 of the GPW and the Central POW Information Agency provided for in Article 123 of 

the GPW, shall be exempt from any postal dues, both in the countries of origin and destination, 

and in intermediate countries.

459 

9.20.4.3 Exemption From Postal Charges Under the Universal Postal 

Convention. Under the Universal Postal Convention, with the exception of air surcharges for 

airmail, letter-post items, postal parcels, and monetary articles addressed to or sent by POWs, 

either directly or through the National POW Information Bureau and the Central POW 

Information Agency, shall be exempt from all postal charges.

460 This exemption also applies to 

belligerents captured and interned in neutral countries.461

Parcels shall be admitted free of postage up to a weight of 5 kg.462 The weight limit shall 

be increased to 10 kg in the case of parcels the contents of which cannot be split up and of 

parcels addressed to a camp or the POW Representatives there for distribution to the POWs.463

Items exempt from postal charges and POW parcels shall bear “Service des prisonniers 

 459 GPW art. 74 (“Correspondence, relief shipments and authorized remittances of money addressed to prisoners of 

war or despatched by them through the post office, either direct or through the Information Bureaux provided for in 

Article 122 and the Central Prisoners of War Agency provided for in Article 123, shall be exempt from any postal 

dues, both in the countries of origin and destination, and in intermediate countries.”).

460 Universal Postal Convention, art. 17(1), Dec. 14, 1989, 1687 UNTS 241, 251-52 (“Subject to article 21, 

paragraph 1, letter-post items, postal parcels and monetary articles addressed to or sent by prisoners of war, either 

direct or through the Information Bureaux and the Central Prisoner-of-War Information Agency provided for in 

articles 122 and 123 respectively of the Geneva Convention of 12 August 1949 relative to the treatment of prisoners 

of war, shall be exempt from all postal charges.”). Consider Universal Postal Convention, art. 7(2.1), Oct. 11, 2012, 

reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 

2013, Update 2 – Jan. 2015) (“Letter-post items, postal parcels and postal payment services items addressed to or 

sent by prisoners of war, either direct or through the offices mentioned in the Regulations of the Convention and of 

the Postal Payment Services Agreement, shall be exempt from all postal charges, with the exception of air 

surcharges.”).

461 Universal Postal Convention, art. 17, Dec. 14, 1989, 1687 UNTS 241, 251-52 (“Belligerents apprehended and 

interned in a neutral country shall be classed with prisoners of war proper so far as the application of the foregoing 

provisions is concerned.”). Consider Universal Postal Convention, art. 7(2.1), Oct. 11, 2012, reprinted in

INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, 

Update 2 – Jan. 2015) (same).

462 Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“Parcels shall be admitted free of 

postage up to a weight of 5 kg.”). Consider Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in

INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, 

Update 2 – Jan. 2015) (“Parcels shall be admitted free of postage up to a weight of 5 kilogrammes.”).

463 Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“The weight limit shall be 

increased to 10 kg in the case of parcels the contents of which cannot be split up and of parcels addressed to a camp 

or the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”). Consider

Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL 

POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The weight limit shall be 

increased to 10 kilogrammes in the case of parcels the contents of which cannot be split up and of parcels addressed 

to a camp or the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”).
596

de guerre” (“Prisoner-of-war Service) and a translation in another language, if appropriate.464

Postal administrations shall not be liable for the loss of, theft from, or damage to parcels 

in the case of POW parcels.

465

9.20.4.4 Costs of Transporting Relief Shipments Outside the Post Office. If relief 

shipments intended for POWs cannot be sent through the post office by reason of weight or for 

any other cause, the cost of transportation shall be borne by the Detaining Power in all the 

territories under its control.466 The other Parties to the GPW shall bear the cost of transport in 

their respective territories.467

In the absence of special agreements between the Parties concerned, the costs connected 

with transport of such shipments, other than costs covered by the above exemption, shall be 

charged to the senders.468

9.20.4.5 Rates Charged for Telegrams. The Parties to the GPW shall endeavor to 

reduce, so far as possible, the rates charged for telegrams sent by POWs, or addressed to them.469

9.20.5 Special Means of Transport of Shipments to POWs. Should military operations 

prevent the Powers concerned from fulfilling their obligation to ensure the transport of the 

shipments referred to in Articles 70, 71, 72, and 77 of the GPW, the Protecting Powers 

concerned, the ICRC, or any other organization duly approved by the parties to the conflict may 

undertake to ensure the conveyance of such shipments by suitable means (railway wagons, motor 

vehicles, vessels, or aircraft, etc.).470 For this purpose, the Parties to the GPW shall endeavor to 

 464 Consider Letter Post Regulations, Article RL 112 to Article 7 of the Universal Postal Convention of Oct. 11, 

2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.11 

(2015) (“Items exempt from postal charges shall bear, on the address side in the top right-hand corner, the following 

indications, which may be followed by a translation: ‘Service des prisonniers de guerre’ (Prisoners-of-war service) 

or ‘Servicedes internés civils’ (Civilian internees service) for the items mentioned in article 7.2 of the Convention 

and article RL 111 and the forms relating to them;”); Parcel Post Regulations, Article RC 112(2), reprinted in

INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, PARCEL POST MANUAL, page D.10 (2015) (“Every 

prisoner-of-war and civilian internee parcel and its dispatch note shall bear, the former beside the address, one of the 

indications ‘Service des prisonniers de guerre’ (Prisoner-of-war Service) or ‘Service des internés civils’ (Civilian 

Internees Service); these indications may be followed by a translation in another language.”).

465 Postal Parcels Agreement, art. 41(2)(f), Dec. 14, 1989, 1687 UNTS 346, 369 (“Postal administrations shall not be 

liable for the loss of, theft from or damage to parcels in the case of prisoner-or-war or civilian internee parcels.”).

466 GPW art. 74 (“If relief shipments intended for prisoners of war cannot be sent through the post office by reason 

of weight or for any other cause, the cost of transportation shall be borne by the Detaining Power in all the territories 

under its control.”).

467 GPW art. 74 (“The other Powers party to the Convention shall bear the cost of transport in their respective 

territories.”).

468 GPW art. 74 (“In the absence of special agreements between the Parties concerned, the costs connected with 

transport of such shipments, other than cost covered by the above exemption, shall be charged to the senders.”).

469 GPW art. 74 (“The High Contracting Parties shall endeavour to reduce, so far as possible, the rates charged for 

telegrams sent by prisoners of war, or addressed to them.”).

470 GPW art. 75 (“Should military operations prevent the Powers concerned from fulfilling their obligation to assure 

the transport of the shipments referred to in Articles 70, 71, 72 and 77, the Protecting Powers concerned, the 

International Committee of the Red Cross or any other organization duly approved by the Parties to the conflict may 
597

supply them with such transport, and to allow its circulation, especially by granting the necessary 

safe-conducts.471

Such transport may also be used to convey: 

• correspondence, lists, and reports exchanged between the Central POW Information 

Agency referred to in Article 123 of the GPW and the National POW Information Bureau

referred to in Article 122 of the GPW; and

• correspondence and reports relating to POWs that the Protecting Powers, the ICRC, or 

any other body assisting the POWs exchange either with their own delegates or with the 

parties to the conflict.472

These provisions in no way detract from the right of any party to the conflict to arrange 

other means of transport, if it should so prefer, nor preclude the granting of safe-conducts, under 

mutually agreed conditions, to such means of transport.473 

In the absence of special agreements, the costs occasioned by the use of such means of 

transport shall be borne proportionally by the parties to the conflict whose nationals are benefited 

thereby.474 Expenses in setting up the special transport system are not specifically addressed by 

the GPW, and presumably would be addressed by an agreement between the body that takes the 

initiative in establishing the system and the Powers concerned.475 

9.20.6 Censorship and Security Review of POW Correspondence and Shipments. The 

Detaining Power may examine and censor all communications sent to or by POWs, including 

correspondence, telegrams, parcels, newspapers, periodicals, and books, with a view to deleting 

or confiscating matter prejudicial to its military security.

476 The Detaining Power’s general right 

 

undertake to ensure the conveyance of such shipments by suitable means (railway wagons, motor vehicles, vessels 

or aircraft, etc.)”).

471 GPW art. 75 (“For this purpose, the High Contracting Parties shall endeavour to supply them with such transport 

and to allow its circulation, especially by granting the necessary safe-conducts.”).

472 GPW art. 75 (“Such transport may also be used to convey: (a) correspondence, lists and reports exchanged 

between the Central Information Agency referred to in Article 123 and the National Bureaux referred to in Article 

122; (b) correspondence and reports relating to prisoners of war which the Protecting Powers, the International 

Committee of the Red Cross or any other body assisting the prisoners, exchange either with their own delegates or 

with the Parties to the conflict.”).

473 GPW art. 75 (“These provisions in no way detract from the right of any Party to the conflict to arrange other 

means of transport, if it should so prefer, nor preclude the granting of safe-conducts, under mutually agreed 

conditions, to such means of transport.”).

474 GPW art. 75 (“In the absence of special agreements, the costs occasioned by the use of such means of transport 

shall be borne proportionally by the Parties to the conflict whose nationals are benefited thereby.”).

475 See GPW COMMENTARY 468 (“This paragraph deals with the expenditure involved in the use of special 

transport, but not the expenditure incurred in setting up the special transport system. On this latter point the 

Convention says nothing and it is therefore to be supposed that such expenses will be covered by agreement between 

the body which takes the initiative in the matter and the Powers concerned.”).

476 Compare § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).
598

to conduct censorship is an implicit assumption in the GPW, as it is in the GC.

477 POWs’

complaints, petitions, and reports may be subject to security review and censorship to ensure that 

they are not misused.

478

The censoring of correspondence addressed to POWs or sent by them shall be done as 

quickly as possible.479 Mail shall be censored only by the State from which the mail is sent and 

the State that receives the mail, and only once by each State.

480

9.20.6.1 Examination of Consignments. The examination of consignments 

intended for POWs shall not be carried out under conditions that will expose the goods contained 

in them to deterioration; except in the case of written or printed matter, it shall be done in the 

presence of the addressee, or of a fellow POW duly delegated by him or her.

481

The delivery to POWs of individual or collective consignments shall not be delayed 

under the pretext of difficulties of censorship.482

9.20.6.2 Prohibitions of Correspondence. Any prohibition of correspondence 

ordered by parties to the conflict, either for military or political reasons, shall be only temporary 

and its duration shall be as short as possible.483

9.21 PRIVATE LEGAL MATTERS OF POWS

9.21.1 Civil Capacity. POWs shall retain their full civil capacity that they enjoyed at the 

time of their capture.484 Their retention of their full civil capacity at the time of capture means 

that the law that applied to them before becoming a POW would continue to apply to them.485 

 477 Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

478 Refer to § 9.23.2.1 (Review and Censorship of Requests and Complaints by the Detaining Power); § 9.23.3

(Periodic Reports by the POW Representatives).

479 GPW art. 76 (“The censoring of correspondence addressed to prisoners of war or despatched by them shall be 

done as quickly as possible.”).

480 GPW art. 76 (“Mail shall be censored only by the despatching State and the receiving State, and once only by 

each.”).

481 GPW art. 76 (“The examination of consignments intended for prisoners of war shall not be carried out under 

conditions that will expose the goods contained in them to deterioration; except in the case of written or printed 

matter, it shall be done in the presence of the addressee, or of a fellow-prisoner duly delegated by him.”).

482 GPW art. 76 (“The delivery to prisoners of individual or collective consignments shall not be delayed under the 

pretext of difficulties of censorship.”).

483 GPW art. 76 (“Any prohibition of correspondence ordered by Parties to the conflict, either for military or 

political reasons, shall be only temporary and its duration shall be as short as possible.”).

484 GPW art. 14 (“Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their 

capture.”).

485 GPW COMMENTARY 149 (“The 1949 Diplomatic Conference considered it necessary to clarify the 1929 text 

establishing the civil capacity of prisoners of war. It was recalled that this capacity is always determined by law, 

whether the legislation of the country of origin of the internee or that of his country of domicile. But the prisoner 

will never be considered as ‘resident’ in the country of detention solely by virtue of the fact that he is in captivity. 
599

The Detaining Power may not restrict the exercise, either within or without its own 

territory, of the rights such capacity confers, except in so far as the captivity requires.486 Thus, 

POWs may, to the extent consistent with their detention, continue to exercise the civil capacity 

that they would have in their own country under that country’s law.487 For example, to the 

degree permitted by captivity, POWs may take legal steps that they were able to take before 

captivity, such as disposing of property, making wills, giving consent to marriage, voting, or 

executing a power of attorney.488

9.21.2 Legal Documents and Assistance. The Detaining Powers shall provide all 

facilities for the transmission, through the Protecting Power or the Central POW Information 

Agency provided for in Article 123 of the GPW, of instruments, papers, or documents intended 

for POWs or sent by them, especially powers of attorney and wills.489 In all cases, the Detaining 

Power shall facilitate the preparation and execution of such documents on behalf of POWs; in 

particular, they shall allow them to consult a lawyer and shall take what measures are necessary 

for the authentication of their signatures.490

9.21.2.1 Preparation of Wills. Wills of POWs shall be drawn up so as to satisfy 

the conditions of validity required by the legislation of their country of origin, which will take 

steps to inform the Detaining Power of its requirements in this respect.491 For States with federal 

systems like the United States in which the requirements of wills may vary according to 

jurisdictions within the State, the will should satisfy those provincial or state law requirements. 

 

The legislation of his country of origin will, therefore, be applicable in most cases as that is also the country of 

domicile of the majority of prisoners. There are other possibilities, however, and for that reason the Stockholm 

draft, which only referred to the law of the country of origin, was amended by the Geneva Conference, so as to refer 

instead to the ‘civil capacity which they enjoyed at the time of their capture’.”).

486 GPW art. 14 (“The Detaining Power may not restrict the exercise, either within or without its own territory, of 

the rights such capacity confers except in so far as the captivity requires.”).

487 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 249 (“General DILLON (United States 

of America) fully agreed with the United Kingdom Delegate's observations regarding the second paragraph. As 

regards the third paragraph, he felt that a prisoner of war should be accorded all the civil rights that he would have in 

his own country, under his own country's legislation. He could not exercise them in the country of the Detaining 

Power, but could, on the other hand, exercise them in a prisoner of war camp. If he was a notary public, for 

instance, he could draw up authentic documents for his fellow prisoners and transmit them through the Protecting 

Power.”).

488 2004 UK MANUAL ¶8.70 (“It means that prisoners of war are free, so far as captivity permits, to take legal steps 

in their state of origin, for example to dispose of property, make wills, give consent to marriage, or vote. Such 

action will normally be taken by appointment of an attorney or proxy.”).

489 GPW art. 77 (“The Detaining Powers shall provide all facilities for the transmission, through the Protecting 

Power or the Central Prisoners of War Agency provided for in Article 123, of instruments, papers or documents 

intended for prisoners of war or despatched by them, especially powers of attorney and wills.”).

490 GPW art. 77 (“In all cases they shall facilitate the preparation and execution of such documents on behalf of 

prisoners of war; in particular, they shall allow them to consult a lawyer and shall take what measures are necessary 

for the authentication of their signatures.”).

491 GPW art. 120 (“Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by 

the legislation of their country of origin, which will take steps to inform the Detaining Power of its requirements in 

this respect.”).
600

At the request of the POW, the will shall be transmitted without delay to the Protecting 

Power; a certified copy shall be sent to the Central POW Information Agency.

492

9.22 INTERNAL DISCIPLINE OF POW CAMPS

9.22.1 POW Camp Commander. Every POW camp shall be put under the immediate 

authority of a responsible commissioned officer belonging to the regular armed forces of the 

Detaining Power.493 For example, a non-commissioned officer, a contractor, a civilian, a 

member of a paramilitary force, or an enemy POW may not be the camp commander.494 The 

POW camp commander has disciplinary powers over POWs.495

9.22.2 POWs’ Status With Respect to Their Armed Forces. Although POWs are not 

subject to the judicial or disciplinary procedures of the Power to which they belong while they 

are POWs, POWs remain subject to the law, disciplinary authority, and regulations of the Power 

on which they depend.496 For example, while they are POWs, they may not conduct disciplinary 

proceedings against one another; however, they are liable to punishment for violations 

committed during captivity, once they have been released and repatriated.497

9.22.3 Saluting Between POWs and Officers of the Detaining Power. POWs, with the 

 492 GPW art. 120 (“At the request of the prisoner of war and, in all cases, after death, the will shall be transmitted 

without delay to the Protecting Power; a certified copy shall be sent to the Central Agency.”).

493 GPW art. 39 (“Every prisoner of war camp shall be put under the immediate authority of a responsible 

commissioned officer belonging to the regular armed forces of the Detaining Power.”).

494 See GPW COMMENTARY 239-40 (“The principle that a responsible commander should be appointed in each camp 

was already set forth in the 1929 Convention, Article 18, paragraph 1: “Each prisoners-of-war camp shall be placed 

under the authority of a responsible officer”. The brevity of that text led to considerable abuse of the provision 

when disciplinary powers were delegated to non-commissioned officers and even to prisoners of war.”).

495 Refer to § 9.27.1 (POW Camp Authorities Who May Order Disciplinary Punishment).

496 See GPW COMMENTARY 408-09 (“Although the legislation of the Detaining Power is applicable to him during 

his captivity, he remains subject to the military law of his State of origin, as a member of its armed forces. He may 

therefore be made answerable before the courts of his country for his acts, and cannot plead in defence that national 

legislation is inapplicable because it is suspended by Article 82.”).

497 See, e.g., 10 U.S.C. § 905 (“Misconduct as a prisoner. Any person subject to this chapter who, while in the 

hands of the enemy in time of war-- (1) for the purpose of securing favorable treatment by his captors acts without 

proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever 

nationality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such 

persons maltreats them without justifiable cause; shall be punished as a court-martial may direct.”); United States v. 

Dickenson 17 C.M.R. 438, 442 U.S. Army Board of Review (1954) (U.S. POW during the Korean War was found 

guilty of committing offense when he “for the purpose of securing favorable treatment by his captors, report[ed] to 

the enemy officials in command of Prisoner of War Camp Number Five, Pyoktong, North Korea, the preparations 

by Edward M. Gaither, then Private First Class Edward M. Gaither, United States Army, a prisoner of war at said 

camp, to escape, as a result of which report the said Edward M. Gaither was placed by the enemy before a mock 

firing squad on three occasions, placed by the enemy in solitary confinement for approximately seven months and 

severely kicked and beaten with clubs by the enemy.”); United States v. Garwood, 16 M.J. 863, 865 United States 

Navy-Marine Corps Court of Military Review (1983) (U.S. POW during the Vietnam War was found guilty of 

committing offenses “of aiding enemy forces within prisoner of war camps in the Republic of South Vietnam, in 

violation of Article 104, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 904, and of assault of an American 

prisoner of war interned in an enemy prisoner of war camp, in violation of Article 128, UCMJ, 10 U.S.C. § 928.”).
601

exception of officers, must salute and show to all officers of the Detaining Power the external 

marks of respect provided for by the regulations applying in their own forces.498 POWs need not

salute Detaining Power non-commissioned officers or persons of equivalent status to officers 

belonging to the Detaining Power.499 

The form and conditions for saluting and showing external marks of respect are to be 

determined by the regulations applying in the armed forces to which the POWs belong.500 Other 

external marks of respect may include, for example, standing at attention when an officer enters 

the room.501

Officer POWs are bound to salute only Detaining Power officers of higher rank and the 

camp commander, regardless of his or her rank.502

Although not required by the GPW, Detaining Power officers should return salutes as a 

matter of courtesy.

503 Members of the armed forces of the Detaining Power are not required to 

salute POWs of superior rank.504

9.22.4 Rank and Age of POWs. POWs shall be treated with the regard due to their rank 

and age.505 POWs shall be permitted to wear their badges of rank, nationality, or decorations.506 

For example, rank insignia or similar devices may be worn by POWs.

 498 GPW art. 39 (“Prisoners of war, with the exception of officers, must salute and show to all officers of the 

Detaining Power the external marks of respect provided for by the regulations applying in their own forces.”).

499 GPW COMMENTARY 240-41 (“This provision requires prisoners of war to show the relevant external marks of 

respect to all officers; at the same time, it automatically excludes from this privilege any representative of the 

Detaining Power who is not an officer or does not wear officer’s uniform. Similarly, it excludes all noncommissioned officers, regardless of the laws and regulations of the Detaining Power.”).

500 GPW COMMENTARY 241 (“The present provision does not merely state to whom prisoners of war must give the 

salute and show external marks of respect; it also determines the form and conditions for doing so, by referring 

explicitly to the regulations applying in the armed forces to which the prisoners belong. This provision is likely to 

prevent any recurrence of incidents such as those which took place during the Second World War, when certain 

belligerents insisted on prisoners conforming to the regulations for saluting applicable in the armed forces of the 

Detaining Power.”).

501 LEVIE, POWS 171, footnote 299 (“Other external marks of respect would include standing when the officer enters 

the room, remaining at attention while conversing with the officer, etc. These are not marks of obsequiousness, but 

of disciplined training.”).

502 GPW art. 39 (“Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power; 

they must, however, salute the camp commander regardless of his rank.”).

503 See GPW COMMENTARY 241 (“There is one more question, in this connection, which gave rise to some 

difficulty: that of officers of the Detaining Power returning the salute of prisoners of war. The Conference of 

Government Experts considered that this was a matter of courtesy and did not call for precise ruling.”).

504 LEVIE, POWS 170 (“Members of the armed forces of the Detaining Power are not required to salute prisoners of 

war of superior rank.”).

505 GPW art. 44 (“Officers and prisoners of equivalent status shall be treated with the regard due to their rank and 

age.”); GPW art. 45 (“Prisoners of war other than officers and prisoners of equivalent status shall be treated with the 

regard due to their rank and age.”).

506 GPW art. 40 (“The wearing of badges of rank and nationality, as well as of decorations, shall be permitted.”).
602

The rank of POWs also determines the amount of the advances of pay that they are 

entitled to receive.507 In addition, POWs awarded disciplinary punishment may not be deprived 

of the prerogatives of rank.508

9.22.4.1 Communication of Titles and Ranks. Upon the outbreak of hostilities, the 

parties to the conflict shall communicate to one another the titles and ranks of all the persons 

mentioned in Article 4 of the GPW, in order to ensure equality of treatment between POWs of 

equivalent rank.509 Titles and ranks that are subsequently created shall form the subject of 

similar communications.510

9.22.4.2 Recognition of Promotions in Rank. Promotions in rank of POWs that 

have been accorded to POWs and that have been duly notified by the Power on which the POWs 

depend shall be recognized.

511

9.22.5 Posting of Convention and Camp Orders. In every POW camp the text of the 

GPW and its Annexes, and the contents of any applicable special agreements, shall be posted, in 

the POWs’ own language, in places where all may read them.

512 The POWs’ own language 

means an official language of the State to which they belong.513 Copies shall be supplied, on 

request, to the POWs who cannot have access to the posted copy.514

Regulations, orders, notices, and publications of every kind relating to the conduct of 

POWs shall be issued to them in a language that they understand.515 Such regulations, orders,

and publications shall be posted in the same manner as the GPW, and copies shall be handed to 

 507 Refer to § 9.18.3.1 (GPW Specified Amounts for Monthly Advances of Pay).

508 Refer to § 9.27.6.3 (Disciplinary Punishment - Retention of Prerogatives of Rank).

509 GPW art. 43 (“Upon the outbreak of hostilities, the Parties to the conflict shall communicate to one another the 

titles and ranks of all the persons mentioned in Article 4 of the present Convention, in order to ensure equality of 

treatment between prisoners of equivalent rank.”).

510 GPW art. 43 (“Titles and ranks which are subsequently created shall form the subject of similar 

communications.”).

511 GPW art. 43 (“The Detaining Power shall recognize promotions in rank which have been accorded to prisoners 

of war and which have been duly notified by the Power on which these prisoners depend.”).

512 GPW art. 41 (“In every camp the text of the present Convention and its Annexes and the contents of any special 

agreement provided for in Article 6, shall be posted, in the prisoners' own language, in places where all may read 

them.”).

513 See GPW COMMENTARY 244 (“The 1929 Convention made the situation still more difficult by stipulating that the 

text must be posted ‘in the native language of the prisoners of war’; the present Article refers merely to ‘the 

prisoners’ own language’, this being the official language of the prisoners’ country of origin-the language used in 

that country for official records and the publication of legislation. Where there is more than one official language in 

the country of origin, the Convention should, if possible, be posted in the language actually used by the prisoners 

concerned.”).

514 GPW art. 41 (“Copies shall be supplied, on request, to the prisoners who cannot have access to the copy which 

has been posted.”).

515 GPW art. 41 (“Regulations, orders, notices and publications of every kind relating to the conduct of prisoners of 

war shall be issued to them in a language which they understand.”).
603

the POW Representative.

516 Every order and command addressed to POWs individually must 

likewise be given in a language that they understand.517

9.22.6 Use of Force to Maintain Order and to Prevent Escape. The use of weapons 

against POWs, especially against those who are escaping or attempting to escape, shall constitute 

an extreme measure, which shall always be preceded by warnings appropriate to the 

circumstances.518 For example, POWs should not be fired upon if they are apprehended within 

the camp limits while making preparations to escape and there is no risk of escape or harm to 

anyone.519

9.22.6.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Non-lethal 

weapons may be employed to control rioting POWs or to prevent their escape.

520 In particular, 

the use of riot control agents to control rioting POWs is not prohibited.521

If the use of deadly force is warranted and authorized against POWs, there is no legal 

requirement to employ non-lethal weapons before resort to deadly force.

522

9.23 POW REQUESTS, COMPLAINTS, AND REPORTS ABOUT CONDITIONS OF CAPTIVITY 

9.23.1 POW Right to Make Requests and Complaints. POWs shall have the right to 

make known, to the military authorities in whose power they are, their requests regarding the 

conditions of captivity to which they are subjected.523 The commander of a POW camp may

issue regulations that establish procedures about how POWs are to make these requests.524

 516 GPW art. 41 (“Such regulations, orders and publications shall be posted in the manner described above and 

copies shall be handed to the prisoners’ representative.”).

517 GPW art. 41 (“Every order and command addressed to prisoners of war individually must likewise be given in a 

language which they understand.”).

518 GPW art. 42 (“The use of weapons against prisoners of war, especially against those who are escaping or 

attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate 

to the circumstances.”).

519 GPW COMMENTARY 246 (“It is also important, however, to make a distinction between escape proper and acts or 

phases preparatory thereto. If a prisoner is surprised within the camp limits while making preparations to escape, 

there is no justification for opening fire on him.”).

520 GPW COMMENTARY 247 (“Before resorting to weapons of war, sentries can use others which do not cause fatal 

injury and may even be considered as warnings--tear-gas, truncheons, etc. These measures may prove inadequate, 

however, and from the moment when the guards and sentries are about to be overwhelmed, or are obliged to act in 

legitimate self-defence, they are justified in opening fire.”).

521 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

522 Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly 

Force Is Warranted).

523 GPW art. 78 (“Prisoners of war shall have the right to make known to the military authorities in whose power 

they are, their requests regarding the conditions of captivity to which they are subjected.”).

524 GPW COMMENTARY 383 (“This right [under Article 78 of the GPW to make requests] must obviously be 

exercised in a manner compatible with the normal requirements of discipline and camp administration and may not 

be used for purposes other than those arising under the Convention. If need be, the camp commander will issue 

regulations concerning the exercise of this right.”).
604

POWs shall also have the unrestricted right to apply to the representatives of the 

Protecting Powers, either through their POW Representative or, if they consider it necessary, 

directly, in order to draw their attention to any points on which they may have complaints to 

make regarding their conditions of captivity.525

9.23.1.1 Making Requests and Complaints to the ICRC. Such complaints may 

also be made to the delegates of the ICRC who enjoy the same prerogatives of access as the 

representatives of the Protecting Power.

526 In the past, the ICRC has been able to take 

appropriate measures besides merely forwarding the complaint to the Power on which the POWs 

depend, including measures on a confidential basis that help improve the situations of POWs.527

9.23.2 Communication of Requests and Complaints. These requests and complaints shall 

neither be limited nor considered to be part of the correspondence quota referred to in Article 71 

of the GPW.528 They must be transmitted immediately.529

9.23.2.1 Review and Censorship of Requests and Complaints by the Detaining 

Power. Complaints and requests by the POWs that are to be transmitted to the representatives of 

the Protecting Power may be reviewed and censored for security reasons by the Detaining 

Power, although the right of the POWs to make complaints about their conditions of captivity to 

the representatives of the Protecting Power must not be restricted.

530 In addition, security review 

and censorship must be conducted in accordance with the general rules on censoring POW 

 525 GPW art. 78 (“They shall also have the unrestricted right to apply to the representatives of the Protecting Powers 

either through their prisoners' representative or, if they consider it necessary, direct, in order to draw their attention 

to any points on which they may have complaints to make regarding their conditions of captivity.”).

526 Refer to § 9.33.1.2 (ICRC Delegates Enjoying the Same Prerogatives of Access).

527 For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE 

SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 342 (1948) (“On receiving a complaint [from POWs], 

the ICRC sought the most appropriate means in its power to put right the matter complained of, first verifying as far 

as possible the genuine foundation of the grievance. ... The Committee was more concerned with finding some 

practical remedy for the deficiencies complained of than with bringing them to the notice of the PW’s own country, 

as there was always a possible risk of provoking reprisals. In some cases, it made immediate representations, 

usually to the person or officials of the Detaining Power directly concerned, but sometimes also to higher authority. 

In other cases it instructed its delegates to take appropriate steps on the spot to bring about an improvement. These 

constant daily efforts, though often never heard of, are probably among the most useful services that the Committee 

was able to render to PW.”).

528 GPW art. 78 (“These requests and complaints shall not be limited nor considered to be a part of the 

correspondence quota referred to in Article 71.”). Refer to § 9.20.2 (POW Correspondence Rights and Quota).

529 GPW art. 78 (“They must be transmitted immediately.”).

530 GPW COMMENTARY 384 (“The problem is to reconcile the Detaining Power’s own security requirements with 

the need to ensure that the right of complaint can be effectively exercised. For reasons of security, the Detaining 

Power must obviously make sure that prisoners of war do not use it as a means of communication with the outside 

world. The Conference of Government Experts therefore rejected the suggestion that the words ‘without 

amendment’ should be added to the obligation to transmit complaints. Such an addition would have resulted in 

doing away with censorship, and the Detaining Power could not agree to that. The authors of the Convention 

considered, however, that matters concerning only the ‘conditions of captivity’ could be mentioned without 

restriction, and the wording adopted seemed best suited to take into account both the interests of the prisoners of war 

and the Detaining Power’s own security requirements.”).
605

correspondence.

531

9.23.2.2 No Punishment for Making Complaints. Even if the complaints are 

recognized to be unfounded, they may not give rise to any punishment.532 This rule departs from 

the usual practice in armed forces, in which excessive use of the right of complaint within a 

State’s armed forces may be punished.533 The GPW provision against punishment for unfounded 

complaints arose after POWs were tortured for complaining to the representatives of the 

Protecting Power.534 In any event, it could be contrary to POWs’ interests to abuse this right by 

making groundless complaints because complaints that are justified might not, as a result, 

receive the appropriate attention.535

9.23.3 Periodic Reports by the POW Representatives. POW Representatives may send 

periodic reports on the situation in the camps and the needs of the POWs to the representatives of 

the Protecting Powers.536 POW Representatives have discretion about how and when to submit 

their reports.537 The Detaining Power may subject these reports to security review and 

censorship to ensure that these reports are not misused.

538

9.24 POW REPRESENTATIVES

The GPW contemplates that certain POWs will serve as representatives of the POWs 

before the Detaining Power, the Protecting Power, and other entities. These persons have certain 

prerogatives that enable them to carry out their duties to further the well-being of the POWs.

In the GPW, these persons are called “prisoners’ representatives.” This manual refers to

them as POW Representatives.

 531 Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

532 GPW art. 78 (“Even if they are recognized to be unfounded, they may not give rise to any punishment.”).

533 GPW COMMENTARY 386 (“Lastly, the present paragraph establishes the impunity of prisoners of war in regard to 

any unfounded complaints or requests. Here the Convention departs from the regulations applied in national armed 

forces, which usually punish any excessive use of the right of complaint as being an attack on authority and an act of 

indiscipline.”).

534 United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the Far East, 49,757, 

reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: 

CHARTER, INDICTMENT AND JUDGMENTS 592 (2008) (“After a visit to the prisoner of war camp at Motoyama in 

Japan in the spring of 1943, the senior prisoner at the camp, who had dared to complain of the working conditions to 

which the prisoners had been subjected, was tortured. He was forced to kneel for five hours before a Japanese 

guard. The next time this camp was visited, this senior prisoner was placed in confinement and was not allowed to 

speak to the representative although that representative demanded to interview him.”).

535 GPW COMMENTARY 386 (“It is to be hoped that prisoners of war will realize that in their own interest they 

should make judicious use of the right of complaint and request, and refrain from making complaints which they 

know to be groundless so that those which are justified can receive the attention they deserve.”).

536 GPW art. 78 (“Prisoners’ representatives may send periodic reports on the situation in the camps and the needs of 

the prisoners of war to the representatives of the Protecting Powers.”).

537 Compare § 10.21.3 (Periodic Reports by the Internee Committees).

538 Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).
606

9.24.1 General Qualifications of the POW Representative. In all cases, the POW 

Representative must have the same nationality, language, and customs as the POWs whom he or 

she represents.

539 Thus, POWs distributed in different sections of a camp, according to their 

nationality, language, or customs, shall have for each section their own POW Representative.540

In practice, it is advisable for the POW Representative to be a POW as opposed to a 

retained person. Medical personnel have their own representative for issues related to their 

activities.541 In addition, the duties of the POW Representative and the duties of retained 

personnel could interfere with one another, and special provision is made in the GPW to ensure 

that other duties not interfere with the duties of retained personnel or the duties of the POW 

Representative.

542

9.24.2 Procedure for Selecting POW Representatives, Advisers, and Assistants. The 

procedure for selecting POW Representatives, and their advisers (POWs who are officers) and 

assistants (POWs who are not officers), depends on the rank of the POWs in the camp.

9.24.2.1 Camps With Officer POWs. In camps for officers and persons of 

equivalent status or in mixed camps, the senior officer among the POWs shall be recognized as 

the camp POW Representative.543 A mixed camp refers to camps composed of both officers and 

other ranks.

544

The senior officer is the officer of highest rank, not the oldest officer.

545 The senior 

officer is also a member of the armed forces, as opposed to a person of equivalent status (e.g., 

such as a person authorized to accompany the armed forces who is of senior status).546

In camps for officers, the POW Representative shall be assisted by one or more advisers 

chosen by the officers.

547 These advisers may assist the POW Representative if his or her health 

 539 GPW art. 79 (“In all cases the prisoners’ representative must have the same nationality, language and customs as 

the prisoners of war whom he represents.”).

540 GPW art. 79 (“Thus, prisoners of war distributed in different sections of a camp, according to their nationality, 

language or customs, shall have for each section their own prisoners’ representative, in accordance with the 

foregoing paragraphs.”).

541 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

542 Refer to § 7.9.5.6 (No Other Compulsory Duties); § 9.24.4.1 (Limitations on Other Work Assignments).

543 GPW art. 79 (“In camps for officers and persons of equivalent status or in mixed camps, the senior officer among 

the prisoners of war shall be recognized as the camp prisoners' representative.”).

544 See GPW COMMENTARY 393 (“As may be seen from the record of the discussions at the Diplomatic Conference, 

the expression [“mixed camp”] refers to camps comprising both officers and other ranks.”).

545 See GPW COMMENTARY 392 (“In camps for officers, the prisoners’ representative is appointed according to 

seniority and not by election. The term ‘the senior officer’ (in French, ‘le plus ancien dans le grade le plus élevé’) 

has sometimes been taken as meaning the oldest officer with the highest rank. If the words are to have a precise 

meaning, however, as they must have, it should be what the English text says, viz. the senior officer of the highest 

rank. Age will only be the determining factor where two officers of the same rank were promoted on the same 

date.”).

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

547 GPW art. 79 (“In camps for officers, he shall be assisted by one or more advisers chosen by the officers;”).
607

makes it difficult to carry out the duties of the POW Representative and also may assist the POW 

Representative in gauging the wishes of other POWs.548

In mixed camps, the POW Representative’s assistants shall be chosen from among the 

POWs who are not officers and shall be elected by them.549

9.24.2.2 Labor Camps With Officers Who Carry Out Camp Administration Duties 

for POWs. Officer POWs of the same nationality shall be stationed in labor camps for POWs, 

for the purpose of carrying out the camp administration duties for which the POWs are 

responsible.550 These officers may be elected as POW Representatives under the first paragraph 

of Article 79 of the GPW.

551 In such a case, the assistants to the POW Representatives shall be 

chosen from among those POWs who are not officers.552

9.24.2.3 Places Without Officer POWs. In all places where there are POWs, 

except in those where there are officers, the POWs shall freely elect POW Representatives by 

secret ballot, every six months, and also in case of vacancies.553 These POW Representatives 

shall be eligible for re-election.554

9.24.2.4 Approval of Elected POW Representatives by the Detaining Power. 

Every elected POW Representative must be approved by the Detaining Power before he or she 

 548 See GPW COMMENTARY 392 (“Thus it is clearly established that, like other prisoners of war, officers have a 

prisoners’ representative. Serious difficulties may result, however, from the fact that he is appointed according to 

rank, particularly if his state of health makes it difficult for him to carry out the wide range of tasks incumbent on 

the prisoners’ representative. The 1949 text therefore provides a possibility which did not exist in Article 43 of the 

1929 Convention: the officer who is the prisoners’ representative will be ‘assisted’ by one or more advisers chosen 

by the prisoners themselves. The intention of the authors of this new provision was that such assistants should be 

able to help the senior officer of the highest rank by expressing the wishes and opinions of all the prisoners.”).

549 GPW art. 79 (“[I]n mixed camps, his assistants shall be chosen from among the prisoners of war who are not 

officers and shall be elected by them.”).

550 GPW art. 79 (“Officer prisoners of war of the same nationality shall be stationed in labour camps for prisoners of 

war, for the purpose of carrying out the camp administration duties for which the prisoners of war are responsible.”).

551 GPW art. 79 (“These officers may be elected as prisoners’ representatives under the first paragraph of this 

Article.”). See also LEVIE, POWS 298 (“[E]ven though the labor detachment will, to a certain extent, be a ‘mixed’ 

camp, the senior officer detailed to it to perform the administrative details will not automatically be the prisoners’ 

representative, but he will be eligible for election to that office.”).

552 GPW art. 79 (“In such a case the assistants to the prisoners’ representatives shall be chosen from among those 

prisoners of war who are not officers.”).

553 GPW art. 79 (“In all places where there are prisoners of war, except in those where there are officers, the 

prisoners shall freely elect by secret ballot, every six months, and also in case of vacancies, prisoners' 

representatives entrusted with representing them before the military authorities, the Protecting Powers, the 

International Committee of the Red Cross and any other organization which may assist them.”). See also GPW 

COMMENTARY 390 (“In view of the general wording of the phrase ‘in all places where there are prisoners of war’, 

there is no need to wait until they are actually in a camp. If circumstances permit, prisoners of war will be able to 

appoint a prisoners' representative in transit camps. The general wording of the provision therefore enables 

prisoners’ representatives to be elected not only in the main camps which are usually situated on the outskirts of 

built-up areas, but also in labour detachments.”).

554 GPW art. 79 (“These prisoners’ representatives shall be eligible for re-election.”).
608

has the right to commence his or her duties.

555 Where the Detaining Power refuses to approve a 

POW elected by fellow POWs, it must inform the Protecting Power of the reason for such 

refusal.556

9.24.3 Duties of POW Representatives. The POW Representatives are entrusted with 

representing the POWs before the military authorities, the Protecting Powers, the ICRC, and any 

other organization that may assist them.557 POW Representatives shall further the physical, 

spiritual, and intellectual well-being of POWs.

558

The POW Representative’s general duties imply that the POW Representatives will 

undertake a variety of activities to ensure that POWs receive proper treatment by the Detaining 

Power and to advance their welfare, even activities that are not specified in the GPW as 

constituting their duties.

9.24.3.1 POW Representatives and Mutual Assistance Among POWs. In 

particular, where the POWs decide to organize among themselves a system of mutual assistance, 

this organization will be within the province of the POW Representative, in addition to the 

special duties entrusted to him or her by other provisions of the GPW.

559

9.24.3.2 Other Specific Duties. In addition to the general duties that the GPW 

imposes on the POW Representative, the GPW also imposes specific duties on POW 

Representatives in three areas: (1) relief activities; (2) relations between the POWs and the 

authorities; and (3) verification that the guarantees provided under GPW are respected.560

The POW Representative’s duties in relation to relief activities include:

• assisting in the transport of the POWs’ community property and luggage in cases of 

transfers of POWs;

561

 555 GPW art. 79 (“Every representative elected must be approved by the Detaining Power before he has the right to 

commence his duties.”).

556 GPW art. 79 (“Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisoners 

of war, it must inform the Protecting Power of the reason for such refusal.”).

557 GPW art. 80 (“In all places where there are prisoners of war, except in those where there are officers, the 

prisoners shall freely elect by secret ballot, every six months, and also in case of vacancies, prisoners’ 

representatives entrusted with representing them before the military authorities, the Protecting Powers, the 

International Committee of the Red Cross and any other organization which may assist them.”).

558 GPW art. 80 (“Prisoners’ representatives shall further the physical, spiritual and intellectual wellbeing of 

prisoners of war.”).

559 GPW art. 80 (“In particular, where the prisoners decide to organize amongst themselves a system of mutual 

assistance, this organization will be within the province of the prisoners' representative, in addition to the special 

duties entrusted to him by other provisions of the present Convention.”).

560 See GPW COMMENTARY 397 (“The role of prisoners’ representatives falls under three main headings: relief 

activities, relations with prisoners of war and the authorities, verification that the guarantees provided under the 

Convention are being respected.”).

561 Refer to § 9.29.3.4 (Disposition of Community Property and Remaining Property).
609

• managing the distribution of collective relief;562

• receiving parcels and remittances of money for POWs undergoing disciplinary 

punishment, and handing over to the infirmary any perishable goods;

563 and

• signing receipts for relief supplies or materials to the relief society or organization 

making the shipment.

564

The POW Representative’s duties in facilitating relations between the POWs and the 

authorities include:

• remaining in communication with POWs who work for private employers;565

• transmitting requests and complaints, and sending periodic reports on the needs of 

POWs;

566 and

• interviewing with delegates of the Protecting Powers.567

The POW Representative’s duties in verifying that the guarantees provided under GPW 

are respected include:

• collaborating in the management of the canteen and its special fund;568

• receiving copies of regulations, orders, notices, and publications relating to the conduct 

of POWs issued by the Detaining Power for communication to POWs;569

• countersigning for entries entered in a POW’s account on his or her behalf, or for 

notifications of payments sent by POWs to their own country;

570

• monitoring decisions announced from any disciplinary proceeding against a POW;571

• receiving notifications of judicial proceedings instituted against POWs, and of any 

 562 Refer to § 9.20.3.4 (Collective Relief for POWs).

563 Refer to § 9.27.6.6 (Reading, Writing, Correspondence, and Packages).

564 Refer to § 9.33.2.2 (Receipts for Relief Consignments).

565 Refer to § 9.19.8 (POWs Working for Private Persons).

566 Refer to § 9.23 (POW Requests, Complaints).

567 Refer to § 9.33.1 (Access by Protecting Powers).

568 Refer to § 9.17.3 (Camp Canteen Management and Profits).

569 Refer to § 9.22.5 (Posting of Convention and Camp Orders).

570 Refer to § 9.18 (Financial Resources of POWs).

571 Refer to § 9.27.3 (Rights of POWs in Disciplinary Proceedings).
610

judgment or sentences pronounced upon them;

572 and

• proposing repatriation for certain POWs and participating in Mixed Medical 

Commissions.573

9.24.4 Prerogatives of POW Representatives. In order to accomplish their duties, POW 

Representatives are afforded certain prerogatives.

9.24.4.1 Limitations on Other Work Assignments. POW Representatives shall not 

be required to perform any other work, if the accomplishment of their duties is thereby made 

more difficult.

574 Officers, in any event, may not be required to work.575

9.24.4.2 Assistants for the POW Representatives. In addition to the advisers and 

assistants for the POW Representatives that are provided for in camps with officers, POW 

Representatives may appoint from among the POWs such assistants as they may require.

576

Assistants, like the POW Representative, should be exempted from any other work to the extent 

that the accomplishment of their duties would thereby be made more difficult.

577

9.24.4.3 Material Facilities, Including Certain Freedom of Movement. All 

material facilities shall be granted to POW Representatives, particularly a certain freedom of 

movement necessary for the accomplishment of their duties (inspection of labor detachments, 

receipt of supplies, etc.).578 This freedom of movement does not mean complete freedom.579

9.24.4.4 Visiting Premises Where POWs Are Detained and Consultation With

POWs. POW Representatives shall be permitted to visit premises where POWs are detained, and 

every POW shall have the right to consult freely with his or her POW Representative.580 The 

 572 Refer to § 9.28.3.1 (Notification of Proceedings); § 9.28.4.6 (Notification of Trial Outcome).

573 Refer to § 9.36.5 (Mixed Medical Commissions).

574 GPW art. 81 (“Prisoners’ representatives shall not be required to perform any other work, if the accomplishment 

of their duties is thereby made more difficult.”).

575 Refer to § 9.19.1.2 (Labor Assignment – Officers and Persons of Equivalent Status).

576 GPW art. 81 (“Prisoners’ representatives may appoint from amongst the prisoners such assistants as they may 

require.”). See also GPW COMMENTARY 401 (Assistants “will be interpreters, legal advisers, secretaries, assistants 

competent in matters of storage and handling.”).

577 See GPW COMMENTARY 401 (All assistants “like the prisoners' representative himself, will be exempted from 

any other work to the extent that the accomplishment of their duties would ‘thereby be made more difficult’.”).

578 GPW art. 81 (“All material facilities shall be granted them, particularly a certain freedom of movement necessary 

for the accomplishment of their duties (inspection of labour detachments, receipt of supplies, etc.).”).

579 See GPW COMMENTARY 402 (The authors of GPW “did not think fit to grant ‘complete freedom’, but only ‘a 

certain freedom.’ This freedom must be granted whenever ‘necessary’. Two cases are expressly mentioned: 

inspection of labour detachments and receipt of relief supplies.”). For example, GPW COMMENTARY 402 (“During 

the Second World War, prisoners’ representatives were released on parole by some Detaining Powers in order to 

enable them to travel from one camp to another.”).

580 GPW art. 81 (“Prisoners’ representatives shall be permitted to visit premises where prisoners of war are detained, 

and every prisoner of war shall have the right to consult freely his prisoners’ representative.”).
611

premises that may be visited will include the kitchen, infirmary, and other annexes to the POW 

Camp.

581

9.24.4.5 Working Pay of POW Representatives, Advisers, and Assistants. The 

working pay of POW Representatives, advisers, if any, and assistants, shall be paid out of the 

fund maintained by canteen profits.582 The scale of this working pay shall be fixed by the POW 

Representative and approved by the camp commander.583 If there is no such fund, the detaining 

authorities shall pay these POWs a fair working rate of pay.584

9.24.4.6 Facilities for Communication. All facilities shall likewise be accorded to 

POW Representatives for communication by post and telegraph with the detaining authorities, 

the Protecting Powers, the ICRC and their delegates, the Mixed Medical Commissions, and the 

bodies that give assistance to POWs.

585 

POW Representatives of labor detachments shall enjoy the same facilities for 

communication with the POW Representatives of the principal camp.586 Such communications 

shall not be restricted, nor considered as forming a part of the quota mentioned in Article 71 of 

the GPW.

587

The facilities to be granted do not, however, include freedom from censorship, but 

correspondence may not be withheld.588

9.24.4.7 No Responsibility for Offenses Committed by POWs by Reason of Their 

Duties. POW Representatives shall not be held responsible, simply by reason of their duties, for 

 581 GPW COMMENTARY 403 (“The premises which may be visited will include the kitchen, infirmary and other 

annexes.”).

582 GPW art. 62 (“The working pay of the prisoners’ representative, of his advisers, if any, and of his assistants, shall 

be paid out of the fund maintained by canteen profits.”). Refer to § 9.17.3.1 (Use of Canteen Profits for Working 

Pay of the POW Representative).

583 GPW art. 62 (“The scale of this working pay shall be fixed by the prisoners’ representative and approved by the 

camp commander.”).

584 GPW art. 62 (“If there is no such fund, the detaining authorities shall pay these prisoners a fair working rate of 

pay.”).

585 GPW art. 81 (“All facilities shall likewise be accorded to the prisoners' representatives for communication by 

post and telegraph with the detaining authorities, the Protecting Powers, the International Committee of the Red 

Cross and their delegates, the Mixed Medical Commissions and the bodies which give assistance to prisoners of 

war.”).

586 GPW art. 81 (“Prisoners’ representatives of labour detachments shall enjoy the same facilities for communication 

with the prisoners' representatives of the principal camp.”).

587 GPW art. 81 (“Such communications shall not be restricted, nor considered as forming a part of the quota 

mentioned in Article 71.”). Refer to § 9.20.2 (POW Correspondence Rights and Quota).

588 GPW COMMENTARY 404 (“The facilities to be granted do not, however, include freedom from censorship, but 

correspondence may not be withheld. If circumstances so demand, a special censorship service must therefore be 

instituted or, at least, the correspondence of prisoners’ representatives must be given priority.”).
612

any offenses committed by POWs.

589 For example, POW Representatives may not be held 

responsible for escape attempts by other POWs, unless they personally participated in such 

activities.590 

9.24.4.8 Turnover for Successor POW Representatives Upon Transfer. POW 

Representatives who are transferred shall be allowed a reasonable time to acquaint their 

successors with current affairs.591

9.24.5 Dismissal of POW Representative. In case of dismissal, the reason for the 

dismissal shall be communicated to the Protecting Power.592

The GPW does not provide a procedure for POWs to dismiss POW Representatives aside 

from not re-electing them.593 However, the Detaining Power may withdraw its approval of a 

POW Representative and request that POWs hold new elections.594

9.25 POW ESCAPES

POWs who escape successfully are not liable to any punishment in respect of their 

previous escape. A number of rules limit the punishment of POWs who do not escape

successfully. Notifications of POW escape and recapture should also be made. POWs punished 

as a result of an unsuccessful escape may be subjected to special surveillance.

9.25.1 No Punishment for Successful Escape. POWs who have made good their escape 

in the sense of Article 91 of the GPW, and who are recaptured, shall not be liable to any 

 589 GPW art. 80 (“Prisoners’ representatives shall not be held responsible, simply by reason of their duties, for any 

offences committed by prisoners of war.”).

590 See LEVIE, POWS 304 (“This is particularly relevant with respect to incidents such as the construction of a tunnel 

to be used for the purpose of escape. The military authorities of the Detaining Power will probably assume, and 

with some justification, that this could not have occurred unknown to the prisoners’ representative--but whether he 

knew of it or not, he is not to be held responsible if he did not personally participate in it.”).

591 GPW art. 81 (“Prisoners’ representatives who are transferred shall be allowed a reasonable time to acquaint their 

successors with current affairs.”).

592 GPW art. 81 (“In case of dismissal, the reasons therefore shall be communicated to the Protecting Power.”).

593 See GPW COMMENTARY 405 (GPW “Article 79, paragraph 1, enables [POWs] to show disapproval by not reelecting the prisoners' representative, since elections must be held every six months. The Convention provides no 

procedure, however, for a case where prisoners of war have grounds to demand that their representative should 

resign immediately; it makes provision only for dismissal of a prisoners' representative by the Detaining Power.”).

594 See GPW COMMENTARY 405 (“One solution would be for the prisoners of war to submit a request to the military 

authorities for recognition to be withdrawn from the prisoners' representative. If the Detaining Power is satisfied 

that that is the wish of the majority of prisoners, it may arrange for fresh elections to be held, and the results thereof 

will justify or not, as the case may be, the request made by the prisoners of war. The Detaining Power may at any 

time withdraw its approval and request prisoners of war to hold new elections. It must advise the Protecting Power 

of the actual reasons for its decision and may not merely state that there is no longer mutual confidence between the 

prisoners' representative and its own representatives.”).
613

punishment in respect of their previous escape.595

In this way, POWs who have escaped successfully are treated similarly to persons who 

have engaged in espionage and returned safely to friendly lines.596 Escaping POWs must not kill 

or wound the enemy by resort to perfidy.

597

9.25.1.1 Types of Successful Escapes. Under Article 91 of the GPW, the escape 

of a POW shall be deemed to have succeeded when the POW has: 

• joined the armed forces of the Power on which he or she depends, or those of an allied 

Power;

• left the territory under the control of the Detaining Power, or of an ally of the Detaining 

Power; or

• joined a ship flying the flag of the Power on which he or she depends, or of an allied 

Power, in the territorial waters of the Detaining Power, this ship not being under the 

control of the Detaining Power.598

The general principle is that the POW must have actually gone beyond the reach of the 

Detaining Power.599 Thus, for example, a POW who escapes from the territory of the Detaining 

Power to the territory of one of the Detaining Power’s allies will not be deemed to have escaped 

successfully. On the other hand, if the POW reaches neutral territory or the high seas, he or she 

will have escaped successfully.

600

The situation of POWs who have successfully escaped into neutral territory is addressed 

under the law of neutrality.

601

 595 GPW art. 91 (“Prisoners of war who have made good their escape in the sense of this Article and who are 

recaptured, shall not be liable to any punishment in respect of their previous escape.”).

596 Refer to § 4.17.5.1 (Liability of Persons Not Captured While Spying for Previous Acts of Espionage).

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

598 GPW art. 91 (“The escape of a prisoner of war shall be deemed to have succeeded when: (1) he has joined the 

armed forces of the Power on which he depends, or those of an allied Power; (2) he has left the territory under the 

control of the Detaining Power, or of an ally of the said Power; (3) he 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.”).

599 GPW COMMENTARY 446 (“As Scheidl has pointed out, it is not sufficient for a prisoner attempting to escape to 

throw off immediate pursuit and hide among the population of the territory; he must actually succeed in escaping 

beyond the reach of the Detaining Power.”).

600 See 1958 UK MANUAL ¶238 note 3 (“The effect of Art. 91 [of the GPW] is that the escape is to be considered 

successful not only if the prisoner rejoins the armed forces of the State with which he was previously serving, or 

those of its allies, but also if he has left the territory of or occupied by the Detaining Power, e.g., by reaching neutral 

territory. If he were picked up by a ship of the Detaining Power outside its territorial waters it would seem that he 

would not be liable to disciplinary punishment having already made a successful escape by leaving its territory.”).

601 Refer to § 15.17.1 (Escaped POWs Received by a Neutral State).
614

9.25.2 Unsuccessful Escapes. POWs who do not escape successfully retain their 

entitlement to POW status upon recapture. In particular, the wearing of civilian clothes does not 

deny escaping POWs their status as POWs.602 

A number of rules limit the punishment of POWs who do not escape successfully. By 

limiting the punishment in respect of the act of escape, the GPW recognizes that POWs may

legitimately try to escape from their captors.603 In some cases, POWs may even be under an 

obligation to escape.604 For example, U.S. military personnel have a duty to make every effort to 

escape captivity.605

9.25.2.1 Handover of a Recaptured POW to Competent Military Authority. A 

POW who is recaptured shall be handed over without delay to the competent military 

authority.606 For example, if recaptured by private persons or by civilian law enforcement 

authorities, POWs should be handed over to competent military authority without delay. This 

rule makes certain practices used by Germany during World War II clearly unlawful.

607

9.25.2.2 Only Disciplinary Punishments in Respect of an Act of Escape. A POW 

who attempts to escape and is recaptured before having made good his or her escape in the sense 

of Article 91 of the GPW shall be liable only to a disciplinary punishment in respect of this act, 

 602 GPW COMMENTARY 454 (“Additional difficulties have sometimes arisen from the wearing of civilian clothing; 

during the Second World War, some Detaining Powers stated their intention of considering prisoners of war in 

civilian clothing as spies and no longer as prisoners of war. This matter is settled by the present provision: a 

prisoner of war retains that legal status until such time as he has made good his escape.”).

603 GPW COMMENTARY 445 (“A prisoner of war can legitimately try to escape from his captors. It is even 

considered by some that prisoners of war have a moral obligation to try to escape, and in most cases such attempts 

are of course motivated by patriotism. Conversely, in its own interest, the Detaining Power will endeavour to 

prevent escape whenever possible. This results in the paradox of escape to which A. R. Werner refers: an attempt 

to escape is considered by the Detaining Power as a breach of discipline and therefore punishable, while the adverse 

Party considers it as an act which cannot be held to be a crime. Attempted escape is therefore liable only to 

disciplinary punishment, and not to judicial proceedings.”).

604 Rex v. Guenther Krebs (Magistrate’s Court of the County of Renfrew, Ontario, Oct. 7, 1943), reprinted in 38 

AJIL, 505, 507-08 (1944) (“This accused owes no allegiance to the Crown. He is an open and avowed enemy of the 

Crown, a man taken in war and a man who, if it is not his duty, may quite reasonably feel that it is his duty to escape 

from the domains of his captor state, and, if he can, return to the state to which he owes allegiance and perform his 

duty to that state. Whatever may be finally decided in this matter, my opinion is that a prisoner of war is not 

punishable for anything he may reasonably do to escape, or having escaped, to preserve his liberty. My opinion also 

is that what the accused did was done with a view to facilitating his escape. He, therefore is not guilty of any 

crime.”).

605 Refer to § 9.39.1.3 (Code of Conduct – Article III).

606 GPW art. 92 (“A prisoner of war who is recaptured shall be handed over without delay to the competent military 

authority.”).

607 1958 UK MANUAL ¶240 note 1 (“One of the purposes of these articles [of the GPW] is to render clearly unlawful 

the practice resorted to by Germany during the Second World War of handing over recaptured prisoners of war to 

non-military agencies such as the German Gestapo or the concentration camp service.”).
615

even if it is a repeated offense.

608

9.25.2.3 Disciplinary Punishment for Certain Offenses Committed in Connection 

With Escape. In conformity with the principle stated in Article 83 of the GPW (i.e., leniency in 

favor of disciplinary rather than judicial proceedings), offenses committed by POWs with the 

sole intention of facilitating their escape and that do not entail any violence against life or limb, 

such as offenses against public property, theft without intention of self-enrichment, the drawing 

up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary 

punishment only.609 

For example, if a POW steals food, money, or means of transport; wears civilian 

clothing; or fabricates false documents in order to facilitate his or her escape and is caught before 

escaping successfully, such acts may only incur disciplinary punishment. 

9.25.2.4 Escape Not an Aggravating Circumstance in Respect of a Judicial 

Offense Committed During Escape. Escape or attempt to escape, even if it is a repeated offense, 

shall not be deemed an aggravating circumstance if the POW is subjected to trial by judicial 

proceedings in respect of an offense committed during his or her escape or attempt to escape.610 

For example, an escaping POW who kills or injures a Detaining Power guard while 

escaping could be liable to judicial punishment for that offense. However, the circumstance of 

escape shall not be deemed to aggravate the sentence of the POW, even if the POW is one who 

frequently attempts to escape.

9.25.3 Liability of POWs for Other POWs’ Escape or Attempts to Escape. POWs who 

aid or abet an escape or an attempt to escape are liable on this count to disciplinary punishment 

only.611

Collective punishment of POWs for an escape attempt by other POWs is also 

 608 GPW art. 92 (“A prisoner of war who attempts to escape and is recaptured before having made good his escape in 

the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated 

offence.”).

609 GPW art. 93 (“In conformity with the principle stated in Article 83, offences committed by prisoners of war with 

the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as 

offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or 

the wearing of civilian clothing, shall occasion disciplinary punishment only.”).

610 GPW art. 93 (“Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating 

circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed 

during his escape or attempt to escape.”).

611 GPW art. 93 (“Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to 

disciplinary punishment only.”). See also GPW COMMENTARY 455 (“At the 1929 Conference, some delegations 

maintained that accomplices should be exempt from any punishment, even disciplinary. This proposal was rightly 

rejected. Furthermore, the punishment of accomplices is consistent with the principles of penal law. Escape is an 

offence against the Detaining Power. The privilege of impunity which is granted to a prisoner of war who commits 

this offence is based solely on the fact that captivity is interrupted and this is not so in the case of accomplices.”).
616

prohibited.612

9.25.4 Special Surveillance of POWs as a Result of Unsuccessful Escape. Despite 

Article 88 of the GPW, which articulates the principle that POWs who have served disciplinary 

or judicial sentences may not be treated differently from other POWs,613 POWs punished as a 

result of an unsuccessful escape may be subjected to special surveillance.614 Such surveillance: 

(1) must not affect the state of their health; (2) must be undergone in a POW camp; and (3) must 

not entail the suppression of any of the safeguards granted to them by the GPW.615

9.25.5 Notification of Escape and Recapture. If a POW escapes, the State on which the 

POW depends should be notified by the Detaining Power’s National POW Information Bureau 

through the intermediary of the Protecting Powers and Central Tracing Agency.

616 

If an escaped POW is recaptured, the Power on which the POW depends shall be notified 

of the recapture in the manner prescribed in Article 122 of the GPW (i.e., by the Detaining 

Power’s National POW Information Bureau through the intermediary of the Protecting Powers 

and Central Tracing Agency), provided notification of the POW’s escape has been made.617

9.26 GENERAL PRINCIPLES APPLICABLE TO POW DISCIPLINE

In the GPW, the rules on POW discipline are provided under three sub-headings:

• General principles applicable at all times.618

• “Disciplinary measures,” which means punishment by the commander of the POW camp, 

and is equivalent to summary disposal by a commanding officer.619

• “Judicial proceedings,” which means trial and punishment by a court having jurisdiction 

to try POWs, and is equivalent to trial by court-martial.620

This section addresses the general principles applicable to both disciplinary and judicial 

proceedings against POWs.

 612 Refer to § 9.26.6 (Prohibited Penalties).

613 Refer to § 9.26.7 (Treatment of POWs Undergoing Punishment).

614 GPW art. 92 (“Article 88, fourth paragraph, notwithstanding, prisoners of war punished as a result of an 

unsuccessful escape may be subjected to special surveillance.”).

615 GPW art. 92 (“Such surveillance must not affect the state of their health, must be undergone in a prisoner of war 

camp, and must not entail the suppression of any of the safeguards granted them by the present Convention.”).

616 Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

617 GPW art. 94 (“If an escaped prisoner of war is recaptured, the Power on which he depends shall be notified 

thereof in the manner defined in Article 122, provided notification of his escape has been made.”).

618 GPW arts. 82-88.

619 GPW arts. 89-98. Refer to § 9.27 (Disciplinary Proceedings and Punishment).

620 GPW arts. 99-108. Refer to § 9.28 (Judicial Proceedings and Punishment).
617

9.26.1 POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces 

of the Detaining Power. A POW shall be subject to the laws, regulations, and orders in force in

the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial 

or disciplinary measures in respect of any offense committed by a POW against such laws, 

regulations, or orders.621 For example, POWs in custody of the U.S. armed forces are subject to 

the Uniform Code of Military Justice.622 However, no proceedings or punishments contrary to 

the provisions of Chapter III of the GPW shall be allowed.623

POWs also remain subject to the laws of the State to which they claim allegiance, and 

may be prosecuted by that State following release and repatriation for misconduct committed 

during their captivity.624

9.26.2 Leniency in Favor of Disciplinary Rather Than Judicial Proceedings. In deciding 

whether proceedings in respect of an offense alleged to have been committed by a POW shall be 

judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise 

the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.

625 

This requirement does not compel the competent authorities to choose disciplinary over 

judicial proceedings in any particular case.

9.26.3 Trial by Military Courts. A POW shall be tried only by a military court, unless the 

existing laws of the Detaining Power expressly permit the civil courts to try a member of the 

armed forces of the Detaining Power in respect of the particular offense alleged to have been 

committed by the POW.626 

In no circumstances whatever shall a POW be tried by a court of any kind that does not 

offer the essential guarantees of independence and impartiality as generally recognized and, in 

particular, the procedure of which does not afford the accused the rights and means of defense 

provided for in Article 105 of the GPW.627

 621 GPW art. 82 (“A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces 

of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect 

of any offence committed by a prisoner of war against such laws, regulations or orders.”).

622 10 U.S.C. § 802 (“(a) The following persons are subject to this chapter [47 – Uniform Code of Military Justice]: 

... (9) Prisoners of war in custody of the armed forces.”).

623 GPW art. 82 (“However, no proceedings or punishments contrary to the provisions of this Chapter shall be 

allowed.”).

624 Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).

625 GPW art. 83 (“In deciding whether proceedings in respect of an offence alleged to have been committed by a 

prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities 

exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.”).

626 GPW art. 84 (“A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining 

Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the 

particular offence alleged to have been committed by the prisoner of war.”).

627 GPW art. 84 (“In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does 

not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the 
618

9.26.4 Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts. 

POWs prosecuted under the laws of the Detaining Power for acts committed prior to capture 

shall retain, even if convicted, the benefits of the GPW.

628 For example, POWs prosecuted for 

pre-capture acts are entitled to the fair trial protections provided by the GPW.629 POWs’ fair 

trial protections could not be ensured if the mere allegation of a war crime could deny them 

POW status.630 

9.26.5 Repetition of Punishment. No POW may be punished more than once for the 

same act, or on the same charge.

631

9.26.6 Prohibited Penalties. POWs may not be sentenced by the military authorities and 

courts of the Detaining Power to any penalties except those provided for in respect of members 

of the armed forces of the Detaining Power who have committed the same acts.632 The 

following punishments are expressly prohibited:

• collective punishments for individual acts;

633

• corporal punishment;

• imprisonment in premises without daylight;

• any form of torture or cruelty; and

• deprivation of rank or of the right to wear badges.634

 procedure of which does not afford the accused the rights and means of defence provided for in Article 105.”). 

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

628 GPW art. 85 (“Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to 

capture shall retain, even if convicted, the benefits of the present Convention.”).

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

630 George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State, Entitlement of American 

Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the Geneva Convention of 

1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMAN’S DIGEST 231, 232-33 (§7) (“No 

nation has reserved the right to nullify its obligations under the Convention by a simple declaration that it regards 

members of the armed forces of an opposing party in an international conflict as war criminals. ... While a number

of Communist parties to the Convention, including North Viet Nam, have indicated, by reservations, that they will 

not comply with Article 85, these reservations (1) apply only to prisoners guilty of war crimes as opposed to 

recognized acts of warfare and (2) apply only after a prisoner has been tried in accordance with all the judicial 

guarantees which the Convention provides, and only after conviction.”).

631 GPW art. 86 (“No prisoner of war may be punished more than once for the same act, or on the same charge.”).

632 GPW art. 87 (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining 

Power to any penalties except those provided for in respect of members of the armed forces of the said Power who 

have committed the same acts.”).

633 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

634 GPW art. 87 (“Collective punishment for individual acts, corporal punishment, imprisonment in premises without 

daylight and, in general, any form of torture or cruelty, are forbidden. No prisoner of war may be deprived of his 

rank by the Detaining Power, or prevented from wearing his badges.”).
619

The courts and authorities of the Detaining Power, in reaching decisions on punishment, 

must at all times remember that the accused:

• does not owe any allegiance to the Detaining Power and may be, for example, under a 

duty to escape;

635 and

• is in its power through circumstances beyond his or her control so that, for example, 

depression brought on by captivity should not be regarded as self-induced.

Courts and disciplinary authorities shall have the discretion to reduce the penalty below 

the minimum prescribed for members of the armed forces of the Detaining Power.636

9.26.7 Treatment of POWs Undergoing Punishment. Officers, non-commissioned 

officers, and men and women who are POWs undergoing a disciplinary or judicial punishment, 

shall not be subjected to more severe treatment than that applied in respect of the same 

punishment to members of the armed forces of the Detaining Power of equivalent rank.

637 

A woman POW shall not be awarded or sentenced to a punishment more severe, or 

treated while undergoing punishment more severely, than either a female or male member of the 

armed forces of the Detaining Power dealt with for a similar offense.638

POWs who have served disciplinary or judicial sentences may not be treated differently 

from other POWs.

639 However, POWs who have been punished as a result of an attempted 

escape may nonetheless be subjected to special surveillance.

640

9.27 DISCIPLINARY PROCEEDINGS AND PUNISHMENT

In addition to the general principles applicable to POW punishment, the following rules 

address disciplinary proceedings and punishment.

 635 Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces).

636 GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining Power shall take into 

consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is 

not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his 

own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which 

the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.”).

637 GPW art. 88 (“Officers, non-commissioned officers and men who are prisoners of war undergoing a disciplinary 

or judicial punishment, shall not be subjected to more severe treatment than that applied in respect of the same 

punishment to members of the armed forces of the Detaining Power of equivalent rank.”).

638 GPW art. 88 (“A woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or 

treated whilst undergoing punishment more severely, than a woman member of the armed forces of the Detaining 

Power dealt with for a similar offence.”); GPW art. 88 (“In no case may a woman prisoner of war be awarded or 

sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a male 

member of the armed forces of the Detaining Power dealt with for a similar offence.”).

639 GPW art. 88 (“Prisoners of war who have served disciplinary or judicial sentences may not be treated differently 

from other prisoners of war.”).

640 Refer to § 9.25.4 (Special Surveillance of POWs as a Result of Unsuccessful Escape).
620

9.27.1 POW Camp Authorities Who May Order Disciplinary Punishment. Apart from 

judicial authorities or superior military authorities, only the camp commander, the officer acting 

in the commander’s place, or an officer to whom the commander has delegated his or her 

disciplinary powers, may order disciplinary punishment.641 A camp commander’s power to 

order disciplinary punishment of POWs may not be delegated to POWs.

642

9.27.2 Confinement of POWs Pending Disposal of Offense. A POW accused of an 

offense against discipline shall not be kept in confinement pending his or her hearing (e.g., 

during the investigation of the accusation), unless (1) a member of the armed forces of the 

Detaining Power would be so confined if he or she were accused of a similar offense, or (2) if 

confinement is otherwise essential in the interests of camp order and discipline.643

Any period spent in confinement awaiting disposal of an offense against discipline shall 

be reduced to the absolute minimum and shall not exceed fourteen days.644

The provisions of Articles 97 and 98 of the GPW shall apply to a POW’s confinement 

while awaiting the disposal of offenses against discipline.

645 Thus, the conditions of any 

confinement before the hearing should be at least as good as that afforded POWs who are 

confined as part of disciplinary punishment.

646

9.27.3 Rights of POWs in Disciplinary Proceedings. Before any disciplinary award is 

pronounced, the accused shall be given (1) precise information regarding the offenses of which 

he or she is accused; (2) an opportunity to explain his or her conduct; and (3) an opportunity to 

defend himself or herself.

647 He or she shall be permitted, in particular, to call witnesses and to 

have recourse, if necessary, to the services of a qualified interpreter.

648

 641 GPW art. 96 (“Without prejudice to the competence of courts and superior military authorities, disciplinary 

punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by 

a responsible officer who replaces him or to whom he has delegated his disciplinary powers.”).

642 GPW art. 96 (“In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of 

war.”).

643 GPW art. 95 (“A prisoner of war accused of an offence against discipline shall not be kept in confinement 

pending the hearing unless a member of the armed forces of the Detaining Power would be so kept if he were 

accused of a similar offence, or if it is essential in the interests of camp order and discipline.”).

644 GPW art. 95 (“Any period spent by a prisoner of war in confinement awaiting the disposal of an offence against 

discipline shall be reduced to an absolute minimum and shall not exceed fourteen days.”).

645 GPW art. 95 (“The provisions of Articles 97 and 98 of this Chapter shall apply to prisoners of war who are in 

confinement awaiting the disposal of offences against discipline.”).

646 Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).

647 GPW art. 96 (“Before any disciplinary award is pronounced, the accused shall be given precise information 

regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending 

himself.”).

648 GPW art. 96 (“He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to the 

services of a qualified interpreter.”).
621

The decision shall be announced to the accused POW and to the POW Representative.

649

9.27.4 Record of Disciplinary Punishments. A record of disciplinary punishments shall

be maintained by the camp commander and shall be open to inspection by representatives of the 

Protecting Power.650

9.27.5 Types of Disciplinary Punishments and Procedures for Dispensing Punishment. In 

no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of 

POWs.

651 The disciplinary punishments applicable to POWs are the following:

• a fine that shall not exceed 50 percent of the advances of pay and working pay that the 

POW would receive under Articles 60 and 62 of the GPW during a period of not more 

than thirty days;

• discontinuance of privileges granted over and above the treatment provided for by the 

GPW;

• fatigue duties, not exceeding two hours daily; 

o “Fatigue duties” refers to details of extra-duty chores (e.g., such as policing of the 

POW camp grounds, kitchen duty).652 

o The punishment of fatigue duties shall not be applied to officers.653 In addition, 

fatigue details should meet normal standards for working conditions and must not 

be made more arduous as a disciplinary measure.

654

• confinement.

655

The duration of any single punishment shall in no case exceed thirty days.656 The 

 649 GPW art. 96 (“The decision shall be announced to the accused prisoner of war and to the prisoners’ 

representative.”).

650 GPW art. 96 (“A record of disciplinary punishments shall be maintained by the camp commander and shall be 

open to inspection by representatives of the Protecting Power.”).

651 GPW art. 89 (“In no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of 

prisoners of war.”).

652 LEVIE, POWS 327 (“This punishment consists of extra-duty chores (beyond regular work hours and beyond 

normal duty-roster assignments), such as policing of the prisoner-of-war camp grounds, kitchen police, etc. The 

imposition of such extra fatigue duty as disciplinary punishment is limited to 2 hours per day; and Article 90 limits 

the overall duration to 30 days.”).

653 GPW art. 89 (“The punishment referred to under (3) shall not be applied to officers.”).

654 Refer to § 9.19.3 (Suitable Work Conditions).

655 GPW art. 89 (“The disciplinary punishment applicable to prisoners of war are the following: (1) A fine which 

shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise 

receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. (2) Discontinuance 

of privileges granted over and above the treatment provided for by the present Convention. (3) Fatigue duties not 

exceeding two hours daily. (4) Confinement.”).
622

maximum of thirty days may not be exceeded, even if the POW is answerable for several acts 

when punishment is awarded, regardless of whether such acts are related.657

Any period of confinement awaiting the hearing of a disciplinary offense or the award of 

disciplinary punishment shall be deducted from an award pronounced against a POW.

658

The period between the pronouncing of an award of disciplinary punishment and its 

execution shall not exceed one month.659 When a POW is awarded a further disciplinary 

punishment, a period of at least three days shall elapse between the execution of any two of the 

punishments, if the duration of one of these punishments is ten days or more.660 

9.27.6 Conditions for POWs Serving Disciplinary Punishments. Conditions for 

disciplinary punishments must comply with the requirements for humane treatment.661 In 

addition, the following rules apply:

9.27.6.1 Premises Where Disciplinary Punishments Are to Be Served. POWs 

shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict 

prisons, etc.) to undergo disciplinary punishment.

662 

Officers and persons of equivalent status shall not be lodged in the same quarters as noncommissioned officers or enlisted personnel.663

Women POWs undergoing disciplinary punishment shall be confined in separate quarters 

from male POWs and shall be under the immediate supervision of women.664

9.27.6.2 Retention of the Benefits of the GPW While Undergoing Disciplinary 

Punishment. A POW undergoing confinement as a disciplinary punishment shall continue to 

receive the benefits of the GPW, except insofar as these benefits are necessarily rendered 

 656 GPW art. 90 (“The duration of any single punishment shall in no case exceed thirty days.”).

657 GPW art. 90 (“The maximum of thirty days provided above may not be exceeded, even if the prisoner of war is 

answerable for several acts at the same time when he is awarded punishment, whether such acts are related or not.”).

658 GPW art. 90 (“Any period of confinement awaiting the hearing of a disciplinary offence or the award of 

disciplinary punishment shall be deducted from an award pronounced against a prisoner of war.”).

659 GPW art. 90 (“The period between the pronouncing of an award of disciplinary punishment and its execution 

shall not exceed one month.”).

660 GPW art. 90 (“When a prisoner of war is awarded a further disciplinary punishment, a period of at least three 

days shall elapse between the execution of any two of the punishments, if the duration of one of these is ten days or 

more.”).

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

662 GPW art. 97 (“Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, 

penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.”).

663 GPW art. 97 (“Officers and persons of equivalent status shall not be lodged in the same quarters as noncommissioned officers or men.”).

664 GPW art. 97 (“Women prisoners of war undergoing disciplinary punishment shall be confined in separate 

quarters from male prisoners of war and shall be under the immediate supervision of women.”).
623

inapplicable by the mere fact that the POW is confined.

665 

In no case, however, may POWs undergoing disciplinary punishments be deprived of the 

benefits of the provisions of Articles 78 and 126 of the GPW.666 Thus, POWs undergoing 

disciplinary punishments may not be deprived of the right to make requests and complaints, or to 

deal with representatives of the Protecting Power (including representatives of an impartial 

humanitarian organization performing the functions of the Protecting Power).

667

9.27.6.3 Disciplinary Punishment - Retention of Prerogatives of Rank. A POW 

awarded disciplinary punishment may not be deprived of prerogatives attached to his or her 

rank.

668 The prerogatives referred to are those provided by the GPW, such as the right not to be 

required to work or the right to wear the insignia of their rank.669

9.27.6.4 Attendance at Daily Medical Inspection and Medical Attention. POWs 

awarded disciplinary punishment shall be allowed, on their request, to be present at the daily 

medical inspection.670 They shall receive the attention that their state of health requires and, if 

necessary, shall be removed to the camp infirmary or to a hospital.671

9.27.6.5 Exercise and Access to the Open Air. POWs awarded disciplinary 

punishment shall be allowed to exercise and to stay in the open air at least two hours daily.672

9.27.6.6 Reading, Writing, Correspondence, and Packages. POWs awarded 

disciplinary punishment shall have permission to read and write, and to send and receive 

letters.673 Parcels and remittances of money, however, may be withheld from them until the 

completion of the punishment; such parcels and remittances of money shall meanwhile be 

entrusted to the POW Representative, who will hand over to the infirmary the perishable goods 

 665 GPW art. 98 (“A prisoner of war undergoing confinement as a disciplinary punishment, shall continue to enjoy 

the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by 

the mere fact that he is confined.”).

666 GPW art. 98 (“In no case may he be deprived of the benefits of the provisions of Articles 78 and 126.”).

667 Refer to § 9.23 (POW Requests, Complaints); § 9.32 (Role of the Protecting Power in the GPW).

668 GPW art. 98 (“A prisoner of war awarded disciplinary punishment may not be deprived of the prerogatives 

attached to his rank.”).

669 See GPW COMMENTARY 467 (“Officers retain the right to wear the insignia of their rank (Article 44). They may 

not be required to work (Article 49, paragraph 3) or to provide their own service (Article 44, paragraph 2), for that 

would amount to making them perform fatigue duties, which is forbidden under Article 89, paragraph 2. In 

accordance with Article 97, paragraph 3, officers will be lodged in quarters separate from those of noncommissioned officers and other ranks. These provisions were in the main observed during the Second World 

War.”).

670 GPW art. 98 (“[POWs awarded disciplinary punishment] shall be allowed, on their request, to be present at the 

daily medical inspections.”).

671 GPW art. 98 (“[POWs awarded disciplinary punishment] shall receive the attention which their state of health 

requires and, if necessary, shall be removed to the camp infirmary or to a hospital.”).

672 GPW art. 98 (“Prisoners of war awarded disciplinary punishment shall be allowed to exercise and to stay in the 

open air at least two hours daily.”).

673 GPW art. 98 (“They shall have permission to read and write, likewise to send and receive letters.”).
624

contained in such parcels.674

9.27.7 Disciplinary Punishment and Repatriation or Accommodation in a Neutral 

Country. No POW on whom a disciplinary punishment has been imposed and who is eligible for 

repatriation or for accommodation in a neutral country may be kept back because he or she has 

not undergone his or her punishment.675

9.28 JUDICIAL PROCEEDINGS AND PUNISHMENT

In addition to the general principles applicable to POW punishment, the following rules 

address judicial proceedings and punishment.

9.28.1 No Trial or Sentence Without Pre-Existing Law. No POW may be tried or 

sentenced for an act that is not forbidden by the law of the Detaining Power or by international 

law in force at the time that act was committed.

676

9.28.2 Same Courts and Same Procedures. A POW can be validly sentenced only if the 

sentence has been pronounced by the same courts according to the same procedure as in the case 

of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of 

Chapter III of the GPW have been observed.677 For example, evidence laws used in the trial of a 

POW will be the same as those applicable in the trial of a member of the Detaining Power’s 

military forces.

9.28.3 Notification of Proceedings, Investigation of Offenses, and Confinement Before 

Trial. 

9.28.3.1 Notification of Proceedings. In any case in which the Detaining Power 

decides to institute judicial proceedings against a POW, the Detaining Power shall notify the 

Protecting Power and the POW Representative as soon as possible and at least three weeks 

before the opening of the trial.678 This period of three weeks shall run from the day on which 

such notification reaches the Protecting Power at the address previously indicated by the latter to 

 674 GPW art. 98 (“Parcels and remittances of money however, may be withheld from them until the completion of 

the punishment; they shall meanwhile be entrusted to the prisoners’ representative, who will hand over to the 

infirmary the perishable goods contained in such parcels.”).

675 GPW art. 115 (“No prisoner of war on whom a disciplinary punishment has been imposed and who is eligible for 

repatriation or for accommodation in a neutral country, may be kept back on the plea that he has not undergone his 

punishment.”).

676 GPW art. 99 (“No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the 

Detaining Power or by international law, in force at the time the said act was committed.”).

677 GPW art. 102 (“A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same 

courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and 

if, furthermore, the provisions of the present Chapter have been observed.”).

678 See GPW art. 104 (“In any case in which the Detaining Power has decided to institute judicial proceedings 

against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the 

opening of the trial. ... The same communication shall be made by the Detaining Power to the prisoners’ 

representative.”).
625

the Detaining Power.679 This notification shall contain the following information:

• surname and first names of the POW, his or her rank, his or her army, regimental, 

personal or serial number, his or her date of birth, and his or her profession or trade, if 

any;

• place of internment or confinement;

• specification of the charge or charges on which the POW is to be arraigned, giving the 

legal provisions applicable; and

• designation of the court that will try the case, and the date and place fixed for the opening 

of the trial.680

If no evidence is submitted at the opening of a trial that the notification referred to above 

was received by the Protecting Power, by the POW, and by the POW Representative concerned 

at least three weeks before the opening of the trial, then the trial may not take place and must be

adjourned.681

9.28.3.2 Rapid Investigations. Judicial investigations relating to a POW shall be 

conducted as rapidly as circumstances permit so that his or her trial may take place as soon as 

possible.682 

9.28.3.3 Pre-Trial Confinement. A POW shall not be confined while awaiting 

trial unless a member of the armed forces of the Detaining Power would be so confined if he or 

she were accused of a similar offense, or if it is essential to do so in the interests of national 

security.

683

In no circumstances, however, may a POW be confined for more than three months.684

 679 GPW art. 104 (“This period of three weeks shall run as from the day on which such notification reaches the 

Protecting Power at the address previously indicated by the latter to the Detaining Power.”).

680 GPW art. 104 (“The said notification shall contain the following information: (1) surname and first names of the 

prisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession or 

trade, if any; (2) place of internment or confinement; (3) specification of the charge or charges on which the prisoner 

of war is to be arraigned, giving the legal provisions applicable; (4) designation of the court which will try the case, 

likewise the date and place fixed for the opening of the trial.”).

681 GPW art. 104 (“If no evidence is submitted, at the opening of a trial, that the notification referred to above was 

received by the Protecting Power, by the prisoner of war and by the prisoners' representative concerned, at least 

three weeks before the opening of the trial, then the latter cannot take place and must be adjourned.”).

682 GPW art. 103 (“Judicial investigations relating to a prisoner of war shall be conducted as rapidly as 

circumstances permit and so that his trial shall take place as soon as possible.”).

683 GPW art. 103 (“A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces 

of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in 

the interests of national security.”).

684 GPW art. 103 (“In no circumstances shall this confinement exceed three months.”).
626

Any period spent by a POW in confinement awaiting trial shall be deducted from any 

sentence of imprisonment passed upon him or her and taken into account in fixing any 

penalty.685

Articles 97 and 98 of the GPW apply to a POW’s confinement while awaiting trial.686 

Thus, the conditions of any confinement before trial should be at least as good as that afforded 

POWs who are confined as part of disciplinary punishment.687

9.28.4 Rights of Defense and Trial Procedure. 

9.28.4.1 No Moral or Physical Coercion to Induce Admissions of Guilt. No moral 

or physical coercion may be exerted on a POW in order to induce him or her to admit himself or 

herself guilty of the act of which he or she is accused.688

9.28.4.2 Opportunity to Present Defense and Assistance of Counsel. No POW 

may be convicted without having had an opportunity to present his or her defense and to have the 

assistance of a qualified advocate or counsel.

689

In judicial proceedings against a POW, the POW shall be entitled to: 

• assistance by one of his or her POW comrades;

• defense by a qualified advocate or counsel of his or her own choice;

• the calling of witnesses; and

• if he or she deems necessary, the services of a competent interpreter.690

The POW shall be advised of these rights by the Detaining Power in due time before the 

trial to enable him or her to exercise them.691

 685 GPW art. 103 (“Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any 

sentence of imprisonment passed upon him and taken into account in fixing any penalty.”).

686 GPW art. 103 (“The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in 

confinement awaiting trial.”).

687 Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).

688 GPW art. 99 (“No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit 

himself guilty of the act of which he is accused.”).

689 GPW art. 99 (“No prisoner of war may be convicted without having had an opportunity to present his defence 

and the assistance of a qualified advocate or counsel.”).

690 GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by 

a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the 

services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before 

the trial.”).

691 GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by 

a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the 
627

Failing a choice by the POW, the Protecting Power shall find him or her an advocate or 

counsel, and shall have at least one week at its disposal for this purpose.692 The Detaining Power 

shall deliver to the Protecting Power, on request, a list of persons qualified to present the 

defense.

693 Failing a choice of an advocate or counsel by the POW or the Protecting Power, the 

Detaining Power shall appoint a competent advocate or counsel to conduct the defense.694

9.28.4.3 Facilities for Defense Counsel. The advocate or counsel conducting the 

defense on behalf of the POW shall have at his or her disposal a period of two weeks at least 

before the opening of the trial, as well as the necessary facilities to prepare the defense of the 

accused.695 He or she may, in particular, freely visit the accused and interview him or her in 

private.696 He or she may also confer with any witnesses for the defense, including POWs.697 

He or she shall have the benefit of these facilities until the term of appeal or petition has 

expired.698

9.28.4.4 Rights of the Accused to Particulars of Charge. Particulars of the charge 

or charges on which the POW is to be arraigned, as well as the documents that are generally 

communicated to the accused by virtue of the laws in force in the armed forces of the Detaining 

Power, shall be communicated to the accused POW in a language that he or she understands, and 

in good time before the opening of the trial.699 The same communication in the same 

circumstances shall be made to the advocate or counsel conducting the defense on behalf of the 

POW.700

9.28.4.5 Right of the Protecting Power to Attend Trial. Representatives of the 

Protecting Power shall be entitled to attend the trial of the case unless, exceptionally, the trial is 

 services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before 

the trial.”).

692 GPW art. 105 (“Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or 

counsel, and shall have at least one week at its disposal for the purpose.”).

693 GPW art. 105 (“The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to 

present the defence.”).

694 GPW art. 105 (“Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the 

Detaining Power shall appoint a competent advocate or counsel to conduct the defence.”).

695 GPW art. 105 (“The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his 

disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare 

the defence of the accused.”).

696 GPW art. 105 (“He may, in particular, freely visit the accused and interview him in private.”).

697 GPW art. 105 (“He may also confer with any witnesses for the defence, including prisoners of war.”).

698 GPW art. 105 (“He shall have the benefit of these facilities until the term of appeal or petition has expired.”).

699 GPW art. 105 (“Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the 

documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of 

the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and 

in good time before the opening of the trial.”).

700 GPW art. 105 (“The same communication in the same circumstances shall be made to the advocate or counsel 

conducting the defence on behalf of the prisoner of war.”).
628

held in camera in the interest of State security.701 In such a case, the Detaining Power shall 

advise the Protecting Power accordingly.

702

9.28.4.6 Notification of Trial Outcome. Any judgment and sentence pronounced 

upon a POW shall be immediately reported to the Protecting Power and the POW Representative

concerned in the form of a summary communication, which shall also indicate whether the POW

has the right of appeal with a view to the quashing of the sentence or the reopening of the trial.703

This communication shall also be sent to the accused POW in a language he or she understands, 

if the sentence was not pronounced in his or her presence.704

9.28.5 Appeals and Notice of Final Conviction or Death Sentence. 

9.28.5.1 Appeals. Every POW shall have, in the same manner as the members of 

the armed forces of the Detaining Power, the right of appeal or petition from any sentence 

pronounced upon him or her, with a view to the quashing or revising of the sentence or the 

reopening of the trial.705

He or she shall be fully informed of his or her right to appeal or petition and of the time 

limit within which he or she may do so.706

The Detaining Power shall immediately communicate to the Protecting Power the 

decision of the POW to use or to waive his or her right of appeal.707

9.28.5.2 Notification of Final Conviction or Death Sentence. If a POW is finally 

convicted or if a sentence pronounced on a POW in the first instance is a death sentence, the 

Detaining Power shall as soon as possible address to the Protecting Power a detailed 

communication containing:

• the precise wording of the finding and sentence;

 701 GPW art. 105 (“The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, 

exceptionally, this is held in camera in the interest of State security.”).

702 GPW art. 105 (“In such a case the Detaining Power shall advise the Protecting Power accordingly.”).

703 GPW art. 107 (“Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to 

the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of 

appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise 

be sent to the prisoners’ representative concerned.”).

704 GPW art. 107 (“It shall also be sent to the accused prisoner of war in a language he understands, if the sentence 

was not pronounced in his presence.”).

705 GPW art. 106 (“Every prisoner of war shall have, in the same manner as the members of the armed forces of the 

Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the 

quashing or revising of the sentence or the reopening of the trial.”).

706 GPW art. 106 (“He shall be fully informed of his right to appeal or petition and of the time limit within which he 

may do so.”).

707 GPW art. 107 (“The Detaining Power shall also immediately communicate to the Protecting Power the decision 

of the prisoner of war to use or to waive his right of appeal.”).
629

• a summarized report of any preliminary investigation and of the trial, emphasizing in 

particular the elements of the prosecution and the defense; and

• notification, where applicable, of the establishment where the sentence will be served.

708

These communications shall be sent to the Protecting Power at the address previously 

made known to the Detaining Power.709

9.28.6 Death Sentences. POWs and the Protecting Powers shall be informed, as soon as 

possible, of the offenses that are punishable by death sentence under the laws of the Detaining 

Power.710 Other offenses shall not thereafter be made punishable by the death penalty without 

the concurrence of the Power on which the POWs depend.

711

The death sentence may not be pronounced on a POW unless the attention of the court 

has, in accordance with the second paragraph of Article 87 of the GPW, been particularly called 

to the fact: 

• that since the accused is not a national of the Detaining Power, he or she is not bound to it

by any duty of allegiance; and 

• that he or she is in the power of the Detaining Power as the result of circumstances 

independent of his or her own will.

712

If the death penalty is pronounced on a POW, the sentence shall not be executed before 

the expiration of a period of at least six months from the date when the Protecting Power 

receives, at an indicated address, the detailed communication provided for in Article 107 of the 

GPW.

713

 708 GPW art. 107 (“Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of 

war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting 

Power a detailed communication containing: (1) the precise wording of the finding and sentence; (2) a summarized 

report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and 

the defence; (3) notification, where applicable, of the establishment where the sentence will be served. The 

communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting Power at the address 

previously made known to the Detaining Power.”).

709 GPW art. 107 (“The communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting 

Power at the address previously made known to the Detaining Power.”).

710 GPW art. 100 (“Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences 

which are punishable by the death sentence under the laws of the Detaining Power.”).

711 GPW art. 100 (“Other offences shall not thereafter be made punishable by the death penalty without the 

concurrence of the Power on which the prisoners of war depend.”).

712 GPW art. 100 (“The death sentence cannot be pronounced on a prisoner of war unless the attention of the court 

has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not 

a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the 

result of circumstances independent of his own will.”).

713 GPW art. 101 (“If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before 

the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated 
630

9.28.7 Conditions for POWs Serving Judicial Punishments. 

9.28.7.1 Establishments and Conditions Where Sentences Are Served. A sentence

pronounced on a POW after a conviction has become duly enforceable shall be served in the 

same establishments and under the same conditions as in the case of members of the armed 

forces of the Detaining Power.

714 These conditions shall in all cases conform to the requirements 

of health and humanity.715

9.28.7.2 Confinement of Women POWs Who Have Been Sentenced. A woman 

POW on whom such a sentence has been pronounced shall be confined in separate quarters and 

shall be under the supervision of women.716

9.28.7.3 Complaints and Access to ICRC and the Protecting Power During 

Confinement. In any case, POWs sentenced to a penalty depriving them of their liberty shall 

retain the benefit of the provisions of Articles 78 and 126 of the GPW.

717 Thus, they may make 

requests and complaints and deal with representatives of the Protecting Power or the ICRC.

718

9.28.7.4 Correspondence, Relief Parcels, Exercise, Medical Care, and Spiritual 

Assistance. Furthermore, POWs sentenced to a penalty depriving them of their liberty shall be 

entitled to receive and send correspondence, to receive at least one relief parcel monthly, to take 

regular exercise in the open air, to have the medical care required by their state of health, and to 

have the spiritual assistance they may desire.719

9.28.7.5 Prohibited Penalties. Penalties to which POWs may be subjected shall 

be in accordance with the provisions of the third paragraph of Article 87 of the GPW.

720 Thus, 

collective punishment for individual acts, corporal punishment, imprisonment in premises 

without daylight, and, in general, any form of torture or cruelty, are forbidden for POWs serving 

 

address, the detailed communication provided for in Article 107.”). Refer to § 9.28.5.2 (Notification of Final 

Conviction or Death Sentence).

714 GPW art. 108 (“Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall 

be served in the same establishments and under the same conditions as in the case of members of the armed forces of 

the Detaining Power.”).

715 GPW art. 108 (“These conditions shall in all cases conform to the requirements of health and humanity.”).

716 GPW art. 108 (“A woman prisoner of war on whom such a sentence has been pronounced shall be confined in 

separate quarters and shall be under the supervision of women.”).

717 GPW art. 108 (“In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain 

the benefit of the provisions of Articles 78 and 126 of the present Convention.”).

718 Refer to § 9.23 (POW Requests, Complaints, and Reports About Conditions of Captivity); § 9.33 (Access to 

POWs by the Protecting Powers, ICRC, and Relief Organizations).

719 GPW art. 108 (“Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least 

one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of 

health, and the spiritual assistance they may desire.”).

720 GPW art. 108 (“Penalties to which they may be subjected shall be in accordance with the provisions of Article 

87, third paragraph.”).
631

judicial penalties.721

9.29 TRANSFER OF POWS FROM THE POW CAMP

9.29.1 Determining Whether to Transfer POWs. The Detaining Power, when deciding 

upon the transfer of POWs, shall take into account the interests of the POWs themselves, more 

especially so as not to increase the difficulty of their repatriation.722

Sick or wounded POWs shall not be transferred as long as their recovery may be 

endangered by the journey, unless their safety imperatively demands it.723

If the combat zone draws closer to a camp, the POWs in that camp shall not be 

transferred unless their transfer can be carried out in adequate conditions of safety, or unless they 

are exposed to greater risks by remaining on the spot than by being transferred.724

9.29.2 Conditions for the Transfer of POWs. The transfer of POWs shall always be 

effected humanely and in conditions not less favorable than those under which the forces of the 

Detaining Power are transferred.725 Account shall always be taken of the climatic conditions to 

which the POWs are accustomed, and the conditions of transfer shall in no case be prejudicial to 

their health.726 

The Detaining Power shall supply POWs during transfer with sufficient food and 

drinking water to keep them in good health, and shall supply them with the necessary clothing, 

shelter, and medical attention.727 The Detaining Power shall take adequate precautions,

especially in case of transport by sea or by air, to ensure their safety during transfer, and shall 

draw up a complete list of all transferred POWs before their departure.728

 721 Refer to § 9.26.6 (Prohibited Penalties).

722 GPW art. 46 (“The Detaining Power, when deciding upon the transfer of prisoners of war, shall take into account 

the interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation.”).

723 GPW art. 47 (“Sick or wounded prisoners of war shall not be transferred as long as their recovery may be 

endangered by the journey, unless their safety imperatively demands it.”).

724 GPW art. 47 (“If the combat zone draws closer to a camp, the prisoners of war in the said camp shall not be 

transferred unless their transfer can be carried out in adequate conditions of safety, or unless they are exposed to 

greater risks by remaining on the spot than by being transferred.”).

725 GPW art. 46 (“The transfer of prisoners of war shall always be effected humanely and in conditions not less 

favourable than those under which the forces of the Detaining Power are transferred.”).

726 GPW art. 46 (“Account shall always be taken of the climatic conditions to which the prisoners of war are 

accustomed and the conditions of transfer shall in no case be prejudicial to their health.”).

727 GPW art. 46 (“The Detaining Power shall supply prisoners of war during transfer with sufficient food and 

drinking water to keep them in good health, likewise with the necessary clothing, shelter and medical attention.”).

728 GPW art. 46 (“The Detaining Power shall take adequate precautions especially in case of transport by sea or by 

air, to ensure their safety during transfer, and shall draw up a complete list of all transferred prisoners before their 

departure.”).
632

9.29.3 Procedures for Transfer of POWs From the Camp. 

9.29.3.1 Notification of Transfer. In the event of transfer, POWs shall be 

officially advised of their departure and of their new postal address.729 Such notifications shall 

be given in time for them to pack their luggage and inform their next of kin.730

9.29.3.2 Baggage. POWs shall be allowed to take with them their personal 

effects and the correspondence and parcels that have arrived for them.731 The weight of such 

baggage may be limited, if the conditions of transfer so require, to what each POW can 

reasonably carry, which shall in no case be more than 25 kilograms (approximately 55 pounds) 

per person.

732

9.29.3.3 Forwarding of Mail. Mail and parcels addressed to their former camp 

shall be forwarded to POWs without delay.733

9.29.3.4 Disposition of Community Property and Remaining Property. The camp 

commander shall take, in agreement with the POW Representative, any measures needed to 

ensure the transport of the POWs’ community property and of the luggage they are unable to 

take with them in consequence of restrictions imposed by virtue of the second paragraph of 

Article 48 of the GPW (i.e., restrictions on the weight of baggage).

734

9.29.3.5 Costs of Transfers. The costs of transfers shall be borne by the Detaining 

Power.735

9.30 TRANSFER OF POWS TO THE CUSTODY OF ANOTHER DETAINING POWER

The GPW specifies a number of rules that apply to the transfer of POWs by the Detaining 

Power to the custody of another Detaining Power. 

9.30.1 Requirements for Transfer to the Custody of Another Detaining Power. POWs 

may only be transferred by the Detaining Power to a Power that is a Party to the GPW and after 

the Detaining Power has satisfied itself of the willingness and ability of such receiving Power to 

 729 GPW art. 48 (“In the event of transfer, prisoners of war shall be officially advised of their departure and of their 

new postal address.”).

730 GPW art. 48 (“Such notifications shall be given in time for them to pack their luggage and inform their next of 

kin.”).

731 GPW art. 48 (“They shall be allowed to take with them their personal effects, and the correspondence and parcels 

which have arrived for them.”).

732 GPW art. 48 (“The weight of such baggage may be limited, if the conditions of transfer so require, to what each 

prisoner can reasonably carry, which shall in no case be more than twenty-five kilograms per head.”).

733 GPW art. 48 (“Mail and parcels addressed to their former camp shall be forwarded to them without delay.”).

734 GPW art. 48 (“The camp commander shall take, in agreement with the prisoners’ representative, any measures 

needed to ensure the transport of the prisoners’ community property and of the luggage they are unable to take with 

them in consequence of restrictions imposed by virtue of the second paragraph of this Article.”).

735 GPW art. 48 (“The costs of transfers shall be borne by the Detaining Power.”).
633

apply the GPW.736 U.S. policy may prescribe additional requirements.737

To ensure accountability, a POW should not be transferred before his or her formal 

processing and submission of all required information to the National POW Information 

Bureau.

738

9.30.2 Responsibility When Transferred to the Custody of Another Detaining Power. 

When POWs are transferred under such circumstances, responsibility for the application of the 

GPW rests on the Power accepting them while they are in its custody.739

Nevertheless, if that Power fails to carry out the provisions of the GPW in any important 

respect, the Power by whom the POWs were transferred shall, upon being notified by the 

Protecting Power, take effective measures to correct the situation or shall request the return of 

the POWs.

740 Such requests must be complied with.741 

9.30.3 Special Agreements on Transfers to the Another Detaining Power. Special 

agreements may be concluded with respect to POW transfers to the custody of another Detaining 

Power. U.S. policy has been to require a written agreement or arrangement before transferring 

POWs to a coalition partner.742 For example, the receiving State may agree to inspections by the 

transferring State to verify compliance with the GPW.743

 736 GPW art. 12 (“Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to 

the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee 

Power to apply the Convention.”).

737 Refer to, e.g., § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be 

Tortured).

738 Refer to § 9.31.2 (National POW Information Bureau).

739 GPW art. 12 (“When prisoners of war are transferred under such circumstances, responsibility for the application 

of the Convention rests on the Power accepting them while they are in its custody.”).

740 GPW art. 12 (“Nevertheless, if that Power fails to carry out the provisions of the Convention in any important 

respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting 

Power, take effective measures to correct the situation or shall request the return of the prisoners of war.”).

741 GPW art. 12 (“Such requests must be complied with.”).

742 For example, FINAL REPORT ON THE PERSIAN GULF WAR 578-79 (“US policy requires approval of a formal 

international agreement by the Assistant Secretary of Defense for International Security Affairs (ASD/ISA) and the 

State Department as a prerequisite to transferring EPWs to a Coalition partner. A government-to-government 

agreement was negotiated between Saudi Arabia and the United States authorizing the transfer of EPWs to Saudi 

custody. This document was signed formally on 15 January. Separate military-to-military agreements, authorized 

by the ASD/ISA and the State Department, were also negotiated. These negotiations resulted in the US/UK EPW 

transfer agreement of 31 January and US/French transfer agreement of 24 February. The agreements outlined the 

actions to be taken by capturing forces in processing EPWs and displaced civilians through US theater camps, and 

medical channels to Saudi facilities. The agreement between the United States and Saudi governments provided the 

United States would transfer custody of EPW to Saudi control after EPW registration by US forces. This agreement

also was applicable to EPW captured by the French and British and processed by the US.”).

743 For example, An Arrangement for the Transfer of Enemy Prisoners of War and Civilian Internees from the 

Custody of British Forces to the Custody of American Forces, Jan. 31, 1991, reprinted as Appendix 1 in PETER 

ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 348 (1993) (“6 The British Forces will retain 

a right of access to prisoners of war and civilian internees transferred from British custody while such persons are in 
634

9.31 NATIONAL ACCOUNTING OF THE DETENTION OF POWS

A proper accounting of the detention of POWs is an important responsibility of the 

Detaining Power.744 In order to provide as full an accounting as possible, and in order to 

minimize misidentification of POWs in its custody, the Detaining Power shall obtain detailed 

information about each POW for forwarding through its National POW Information Bureau to 

the Protecting Powers and the Central POW Information Agency. 

9.31.1 Accountability Information That the Detaining Power Should Collect. The 

following information regarding POWs should be collected by the Detaining Power and given to 

its National POW Information Bureau for forwarding to the Powers concerned through the 

intermediary of the Protecting Powers and the Central POW Information Agency. This 

information shall make it possible quickly to advise the next of kin concerned.745 

This information includes, in respect of each POW:

• indication of the Power on which he or she depends;

• surname (i.e., last name) and first names (i.e., first and middle names);

• army, regimental, personal, or serial number;

• rank;

• place and full date of birth;

• first name of the father and maiden name of the mother;

• name and address of the person to be informed; and

• the address to which correspondence for the POW may be sent.746

In addition to this information, information regarding transfers, releases, repatriations, 

 

the custody of the American Forces.”); FINAL REPORT ON THE PERSIAN GULF WAR 578 (“Trained Reserve 

Component (RC) EPW units were activated, and camp advisory teams were sent to Saudi Arabia to establish liaison 

with Saudi units to provide technical assistance, and to maintain accountability for EPWs and displaced civilians 

transferred to the Saudis. (In accordance with Article 12, GPW, the United States retained residual responsibility for 

EPWs transferred to the Saudi Arabian government.)”).

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

745 GPW art. 122 (“This information shall make it possible quickly to advise the next of kin concerned.”).

746 GPW art. 122 (“Subject to the provisions of Article 17, the information shall include, in so far as available to the 

Information Bureau, in respect of each prisoner of war, his surname, first names, rank, army, regimental, personal or 

serial number, place and full date of birth, indication of the Power on which he depends, first name of the father and 

maiden name of the mother, name and address of the person to be informed and the address to which 

correspondence for the prisoner may be sent.”).
635

escapes, admissions to a hospital, and deaths shall also be collected and transmitted.747 

Likewise, information regarding the state of health of POWs who are seriously ill or seriously 

wounded shall be supplied regularly, every week if possible.748

In addition to notices of death, wills and records of death of POWs may be forwarded in 

accordance with Article 120 of the GPW.

749 Lists of graves and the particulars of POWs interred 

in cemeteries and elsewhere may also be forwarded in accordance with Article 120 of the 

GPW.

750

9.31.1.1 Difference Between the Accountability Information the Detaining Power 

Must Seek and the Information the POW Must Provide. Although POWs are required to provide 

full name, rank, date of birth, and service (or equivalent) number, and POWs are required to 

show their identity card upon demand, POWs are not required to inform the Detaining Power of 

their places of birth, the first name of fathers, the maiden name of mothers, or the names and 

addresses of persons to be informed of capture.751

9.31.2 National POW Information Bureau. Upon the outbreak of a conflict and in all 

cases of occupation, each of the parties to the conflict shall institute an official National POW 

Information Bureau for POWs who are in its power.

752 Neutral or non-belligerent Powers, who 

may have received within their territory persons belonging to one of the categories referred to in 

Article 4 of the GPW, shall take the same action with respect to such persons.753

The Power concerned shall ensure that the National POW Information Bureau is provided 

with the necessary accommodation, equipment, and staff to ensure its efficient working.754 It 

shall be at liberty to employ POWs in the National POW Information Bureau under the

conditions laid down in Section III of the GPW dealing with work by POWs.

755 

Within the shortest possible period, each of the parties to the conflict shall give its 

National POW Information Bureau the information referred to in the fourth, fifth, and sixth 

 747 GPW art. 122 (“The Information Bureau shall receive from the various departments concerned information 

regarding transfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit such 

information in the manner described in the third paragraph above.”).

748 GPW art. 122 (“Likewise, information regarding the state of health of prisoners of war who are seriously ill or 

seriously wounded shall be supplied regularly, every week if possible.”).

749 Refer to § 9.34.1 (Transmittal of Wills); § 9.34.2 (Death Certificates).

750 Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).

751 Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

752 GPW art. 122 (“Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict 

shall institute an official Information Bureau for prisoners of war who are in its power.”).

753 GPW art. 122 (“Neutral or non-belligerent Powers who may have received within their territory persons 

belonging to one of the categories referred to in Article 4, shall take the same action with respect to such persons.”).

754 GPW art. 122 (“The Power concerned shall ensure that the Prisoners of War Information Bureau is provided with 

the necessary accommodation, equipment and staff to ensure its efficient working.”).

755 GPW art. 122 (“It shall be at liberty to employ prisoners of war in such a Bureau under the conditions laid down 

in the Section of the present Convention dealing with work by prisoners of war.”). Refer to § 9.19 (POW Labor).
636

paragraphs of Article 122 of the GPW regarding any enemy person belonging to one of the 

categories referred to in Article 4 who has fallen into its power.756 Neutral or non-belligerent 

Powers shall take the same action with regard to persons belonging to such categories whom 

they have received within their territory.757

All written communications made by the National POW Information Bureau shall be 

authenticated by a signature or a seal.758

The National POW Information Bureau: (1) receives and forwards certain information to 

the Powers concerned through the intermediary of the Protecting Powers and the Central POW 

Information Agency; (2) replies to inquiries; and (3) collects personal valuables left by POWs.

9.31.2.1 Receiving and Forwarding Certain Information. The National POW 

Information Bureau receives certain information regarding POWs from other departments of the 

State to which it belongs.759 

The National POW Information Bureau shall immediately forward such information by 

the most rapid means to the Powers concerned through the intermediary of the Protecting Powers 

and likewise of the Central POW Information Agency provided for in Article 123 of the GPW.760

9.31.2.2 Replying to Inquiries Regarding POWs. The National POW Information 

Bureau shall also be responsible for replying to all inquiries sent to it concerning POWs, 

including those who have died in captivity; it will make any inquiries necessary to obtain the 

information that is asked for if the information is not in its possession.761 Responses to inquiries 

 756 GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau the 

information referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging 

to one of the categories referred to in Article 4, who has fallen into its power.”).

757 GPW art. 122 (“Neutral or non-belligerent Powers shall take the same action with regard to persons belonging to 

such categories whom they have received within their territory.”).

758 GPW art. 122 (“All written communications made by the Bureau shall be authenticated by a signature or a 

seal.”).

759 GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau the 

information referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging 

to one of the categories referred to in Article 4, who has fallen into its power. Neutral or non-belligerent Powers 

shall take the same action with regard to persons belonging to such categories whom they have received within their 

territory. ... The Information Bureau shall receive from the various departments concerned information regarding 

transfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit such information in 

the manner described in the third paragraph above. Likewise, information regarding the state of health of prisoners 

of war who are seriously ill or seriously wounded shall be supplied regularly, every week if possible.”) (emphasis 

added).

760 GPW art. 122 (“The Bureau shall immediately forward such information by the most rapid means to the Powers 

concerned, through the intermediary of the Protecting Powers and likewise of the Central Agency provided for in 

Article 123.”).

761 GPW art. 122 (“The Information Bureau shall also be responsible for replying to all enquiries sent to it 

concerning prisoners of war, including those who have died in captivity; it will make any enquiries necessary to 

obtain the information which is asked for if this is not in its possession.”).
637

must be made consistent with the protection of POWs against insults and public curiosity.762

9.31.2.3 Collection of Personal Valuables Left by POWs. The National POW 

Information Bureau shall furthermore be charged with collecting all personal valuables including 

sums in currencies other than that of the Detaining Power and documents of importance to the 

next of kin that have been left by POWs who have been repatriated or released, or who have 

escaped or died, and shall forward these valuables to the Powers concerned.763 Such articles 

shall be sent by the National POW Information Bureau in sealed packets, which shall be 

accompanied by statements giving clear and full particulars of the identity of the person to whom 

the articles belonged, and by a complete list of the contents of the parcel.764 Other personal 

effects of such POWs shall be transmitted under arrangements agreed upon between the parties

to the conflict concerned.765

9.31.3 Central POW Information Agency. The GPW contemplates that a Central POW 

Information Agency shall be created in a neutral country.766 This organization may be the same 

as that provided for in the GC.767

The function of the Central POW Information Agency shall be to collect all the 

information it may obtain through official or private channels respecting POWs, and to transmit 

it as rapidly as possible to the country of origin of the POWs or to the Power on which they 

depend.768 The Central POW Information Agency shall receive from the parties to the conflict 

all facilities for effecting such transmissions.769 Parties to the GPW, and in particular those 

States whose nationals benefit from the services of the Central POW Information Agency, are 

requested to give the Central POW Information Agency the financial aid it may require.770

 762 Refer to § 9.5.3 (Protection Against Insults and Public Curiosity).

763 GPW art. 122 (“The Information Bureau shall furthermore be charged with collecting all personal valuables 

including sums in currencies other than that of the Detaining Power and documents of importance to the next of kin, 

left by prisoners of war who have been repatriated or released, or who have escaped or died, and shall forward the 

said valuables to the Powers concerned.”).

764 GPW art. 122 (“Such articles shall be sent by the Bureau in sealed packets which shall be accompanied by 

statements giving clear and full particulars of the identity of the person to whom the articles belonged, and by a 

complete list of the contents of the parcel.”).

765 GPW art. 122 (“Other personal effects of such prisoners of war shall be transmitted under arrangements agreed 

upon between the Parties to the conflict concerned.”).

766 GPW art. 123 (“A Central Prisoners of War Information Agency shall be created in a neutral country. The 

International Committee of the Red Cross shall, if it deems necessary, propose to the Powers concerned the 

organization of such an Agency.”).

767 Refer to § 10.31.3 (Central Information Agency for Protected Persons).

768 GPW art. 123 (“The function of the Agency shall be to collect all the information it may obtain through official 

or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin of 

the prisoners of war or to the Power on which they depend.”).

769 GPW art. 123 (“It shall receive from the Parties to the conflict all facilities for effecting such transmissions.”).

770 GPW art. 123 (“The High Contracting Parties, and in particular those whose nationals benefit by the services of 

the Central Agency, are requested to give the said Agency the financial aid it may require.”).
638

The provisions of the GPW establishing the Central POW Information Agency do not 

restrict the humanitarian activities of the ICRC and of the relief societies described in Article 125 

of the GPW.

771

The GPW contemplates that the ICRC shall, if it deems necessary, propose to the Powers 

concerned the organization of a Central POW Information Agency.772 The role of the Central 

POW Information Agency has been performed by the ICRC Central Tracing Agency, which has 

also performed this role for protected persons under the GC.

9.31.4 U.S. Practice in Reporting to the ICRC Central Tracing Agency. For the United 

States, the National POW Information Bureau, which has been established and managed by the 

Secretary of the Army, has been referred to at different times as the National Prisoner of War 

Information Center (NPWIC) in Operation DESERT STORM in 1991,

773 and as the National 

Detainee Reporting Center (NDRC) in Operation IRAQI FREEDOM in 2003. The 

NPWIC/NDRC has performed the same function for certain protected persons under the GC.

In general, the Theater Prisoner of War Information Center (TPWIC) has received reports 

from all subordinate POW facilities, regardless of Military Service, consolidated them and 

reconciled any discrepancies, and then forwarded its report to the NPWIC/NDRC. The 

NPWIC/NDRC, on behalf of the United States, has further reviewed and reconciled reports as 

needed, and forwarded its report to the ICRC Central Tracing Agency, which has acted as the 

Central POW Information Agency. The release of POW accountability information outside this 

process (such as directly from field components to ICRC field representatives) has been avoided 

so as to reduce the likelihood of erroneous, conflicting, or duplicate reporting.

9.31.5 Exemption of National POW Information Bureau and Central POW Information 

Agency From Certain Charges. The National POW Information Bureau and the Central POW 

Information Agency shall enjoy free postage for mail, all the exemptions provided for in Article 

74 of the GPW,

774 and, further, so far as possible, exemption from telegraphic charges or, at 

 771 GPW art. 123 (“The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities 

of the International Committee of the Red Cross, or of the relief societies provided for in Article 125.”).

772 GPW art. 123 (“The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers 

concerned the organization of such an Agency.”).

773 For example, FINAL REPORT ON THE PERSIAN GULF WAR 579-80 (“HQDA [Headquarters, Department of the 

Army] also operates the NPWIC, the central agency for all information pertaining to prisoners of war. Article 122, 

GPW, and Article 136, GC, require captors to establish a national information bureau as quickly as possible after the 

start of hostilities. The NPWIC, manned by Army Reserve (USAR) individual mobilization augmentees, volunteer 

Reservists, and retired personnel, served as a central repository for information related to EPW and displaced 

civilians captured or transferred to US forces. It also coordinated information with the ICRC pertaining to EPW 

held by Coalition forces and provided information pertaining to Americans (POW) in Iraqi hands. Additionally, the 

NPWIC consolidated information from the theater for dissemination to appropriate government agencies, Congress, 

and the ICRC.”).

774 Refer to § 9.20.4 (Exemptions From Postal and Shipping Charges).
639

least, greatly reduced rates.775

In addition, the National POW Information Bureau and the Central POW Information 

Agency shall also enjoy exemption from postal charges in respect of letter-post items, postal 

parcels, and monetary articles that concern POWs, which they send or receive, either directly or 

as intermediaries under the conditions laid down in the Universal Postal Convention.

776 Such 

items exempt from postal charges should be marked appropriately.777

9.32 ROLE OF THE PROTECTING POWER IN THE GPW

The Protecting Power is an organ for ensuring implementation of the GPW. The 

Protecting Power has extensive duties under the GPW. It transmits information between 

belligerents, monitors Detaining Power compliance with the GPW, and takes an active role in 

promoting the welfare of POWs.

9.32.1 Transmission of Information Between Belligerents. The Protecting Power helps 

transmit information between belligerents, including:

• information concerning the geographic location of camps;778

• financial information, including working rates of pay, notifications of payment, lists of 

credit balances, and claims for compensation;779

• notification of arrangements made for POW correspondence and relief shipments;780

• legal documents of POWs;781

• death certificates of POWs;782

 775 GPW art. 124 (“The national Information Bureaux and the Central Information Agency shall enjoy free postage 

for mail, likewise all the exemptions provided for in Article 74, and further, so far as possible, exemption from 

telegraphic charges or, at least, greatly reduced rates.”).

776 Universal Postal Convention, art. 17(3), Dec. 14, 1989, 1687 UNTS 241, 252 (“The national Information 

Bureaux and the Central Information Agencies mentioned above shall also enjoy exemption from postal charges in 

respect of letter-post items, postal parcels and monetary articles which concern the persons referred to in paragraphs 

1 and 2, which they send or receive, either direct or as intermediaries, under the conditions laid down in those 

paragraphs.”). Consider Letter Post Regulations, Article RL 111 to Article 7 of the Universal Postal Convention of 

Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, 

page C.10, C.10-11 (Berne 2013, Update 2 – Jan. 2015) (“The following shall enjoy exemption from postal charges 

within the meaning of article 7.2 of the Convention: 1.1 the Information Bureaux provided for in article 122 of the 

Geneva Convention of 12 August 1949 relative to the treatment of prisoners of war; 1.2 the Central Prisoner-of-War 

Information Agency provided for in article 123 of the same Convention;”).

777 Refer to § 9.20.4.3 (Exemption From Postal Charges Under the Universal Postal Convention).

778 Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps).

779 Refer to § 9.18 (Financial Resources of POWs).

780 Refer to § 9.4.2.6 (Arrangements Made for POWs to Write Correspondence and Receive Collective Relief).

781 Refer to § 9.21.2 (Legal Documents and Assistance).
640

• accountability information for the detention of POWs;783 and

• official translations of the GPW, and laws and regulations that parties to the conflict have 

adopted to implement it.

784

9.32.2 Monitoring or Inspecting Compliance With the GPW. The Protecting Power 

monitors or inspects the Detaining Power’s compliance with the GPW, including by:

• visiting all places where POWs may be;

785

• receiving complaints and requests by POWs, and periodic reports from the POW 

Representatives;

786 

• communicating with POW Representatives, and receiving the rationale in cases in which 

the Detaining Power refuses to approve an elected POW Representative or chooses to 

dismiss a POW Representative;787

• inspecting records of disciplinary punishments;788

• receiving communications and subsequent reports of death or serious injury of a POW in 

certain cases;789

• receiving the reasons for the limitations imposed by the Detaining Power on advances of 

pay;790

• inspecting POW accounts;791

• receiving records of labor detachments;792 and

 782 Refer to § 9.34.2 (Death Certificates).

783 Refer to § 9.31 (National Accounting of the Detention of POWs).

784 GPW art. 128 (“The High Contracting Parties shall communicate to one another through the Swiss Federal 

Council and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as 

well as the laws and regulations which they may adopt to ensure the application thereof.”).

785 Refer to § 9.33.1 (Access by Protecting Powers).

786 Refer to § 9.23.1 (POW Right to Make Requests and Complaints); § 9.23.3 (Periodic Reports by the POW 

Representatives).

787 Refer to § 9.24.2.4 (Approval of Elected POW Representatives by the Detaining Power); § 9.24.5 (Dismissal of 

POW Representative).

788 Refer to § 9.27.4 (Record of Disciplinary Punishments).

789 Refer to § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).

790 Refer to § 9.18.3.3 (Procedure for Limiting Amounts Drawn From Accounts Pending Special Agreement).

791 Refer to § 9.18.6 (POW Accounts).

792 Refer to § 9.19.7 (Labor Detachments).
641

• observing trials of POWs if security permits and receiving notification of: (1) judicial 

proceedings, (2) trial outcome, (3) whether the POW has decided to appeal, and (4) final 

conviction or death sentence.793

9.32.3 Actively Working to Improve the Welfare of POWs. In many other instances, the 

GPW contemplates that the Protecting Power will actively work to improve the welfare of 

POWs, such as by:

• helping the Detaining Power determine the maximum amount of money that POWs have 

in their possession;794

• approving any limitation on correspondence beyond two letters and four cards per 

month;795 

• proposing any necessary limitations on relief shipments;796

• supervising the distribution of collective relief;

797

• setting up special means of transport to ensure the conveyance of relief shipments to 

POWs;

798

• finding POWs defense counsel when necessary;799

• notifying the transferring State in the event that a receiving State fails to carry out its 

obligations;

800

• participating in the appointment of members of a Mixed Medical Commission;

801 and

• lending its good offices to assist in dispute resolution.802

 793 Refer to § 9.28.4.5 (Right of the Protecting Power to Attend Trial); § 9.28.3.1 (Notification of Proceedings); 

§ 9.28.4.6 (Notification of Trial Outcome); § 9.28.5.1 (Appeals); § 9.28.5.2 (Notification of Final Conviction or 

Death Sentence).

794 Refer to § 9.18.1 (Detaining Power Regulations on the Maximum Amount of Money in POW Possession).

795 Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

796 Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

797 Refer to § 9.20.3.4 (Collective Relief for POWs).

798 Refer to § 9.20.5 (Special Means of Transport of Shipments to POWs).

799 Refer to § 9.28.4.2 (Opportunity to Present Defense and Assistance of Counsel).

800 Refer to § 9.30.2 (Responsibility When Transferred to the Custody of Another Detaining Power).

801 Refer to § 9.36.5 (Mixed Medical Commissions).

802 Refer to § 18.15.4 (Lending of Good Offices to Assist in Dispute Resolution).
642

9.33 ACCESS TO POWS BY THE PROTECTING POWERS, ICRC, AND RELIEF ORGANIZATIONS

9.33.1 Access by Protecting Powers. Representatives or delegates of the Protecting 

Powers shall have permission to go to all places where POWs may be, particularly to places of 

internment, imprisonment, and labor, and shall have access to all premises occupied by POWs; 

they also shall be allowed to go to the places of departure, passage, and arrival of POWs who are 

being transferred.803 They shall be able to interview POWs, and in particular POW 

Representatives, without witnesses, either personally or through an interpreter.804 

Representatives and delegates of the Protecting Powers shall have full liberty to select the 

places they wish to visit.805 The duration and frequency of these visits shall not be restricted.806 

Visits may not be prohibited except for reasons of imperative military necessity, and then only as 

an exceptional and temporary measure.807 

9.33.1.1 Participation of Compatriots of POWs in Visits. The Detaining Power 

and the Power on which these POWs depend may agree, if necessary, that compatriots of these 

POWs be permitted to participate in the visits.808 

9.33.1.2 ICRC Delegates Enjoying the Same Prerogatives of Access. The 

delegates of the ICRC shall enjoy the same prerogatives as those of the representatives and 

delegates of the Protecting Powers described in Article 126 of the GPW.

809 

The appointment of such delegates shall be submitted to the approval of the Power 

detaining the POWs to be visited.810

9.33.2 Access by Relief Societies and Other Organizations. Subject to the measures that

the Detaining Powers may consider essential to ensure their security or to meet any other 

reasonable need, the representatives of religious organizations, relief societies, or any other 

organization assisting POWs shall receive from these Powers, for themselves and their duly 

 803 GPW art. 126 (“Representatives or delegates of the Protecting Powers shall have permission to go to all places 

where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access 

to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and 

arrival of prisoners who are being transferred.”).

804 GPW art. 126 (“They shall be able to interview the prisoners, and in particular the prisoners’ representatives, 

without witnesses, either personally or through an interpreter.”).

805 GPW art. 126 (“Representatives and delegates of the Protecting Powers shall have full liberty to select the places 

they wish to visit.”).

806 GPW art. 126 (“The duration and frequency of these visits shall not be restricted.”).

807 GPW art. 126 (“Visits may not be prohibited except for reasons of imperative military necessity, and then only as 

an exceptional and temporary measure.”).

808 GPW art. 126 (“The Detaining Power and the Power on which the said prisoners of war depend may agree, if 

necessary, that compatriots of these prisoners of war be permitted to participate in the visits.”).

809 GPW art. 126 (“The delegates of the International Committee of the Red Cross shall enjoy the same 

prerogatives.”).

810 GPW art. 126 (“The appointment of such delegates shall be submitted to the approval of the Power detaining the 

prisoners of war to be visited.”).
643

accredited agents, all necessary facilities for visiting the POWs; for distributing relief supplies 

and material, from any source, intended for religious, educational, or recreative purposes; and for 

assisting them in organizing their leisure time within the POW camps.811 Such societies or 

organizations may be constituted in the territory of the Detaining Power or in any other country, 

or they may have an international character.812

9.33.2.1 Limitations on the Number of Relief Organizations. The Detaining 

Power may limit the number of societies and organizations whose delegates are allowed to carry 

out their activities in its territory and under its supervision, on condition, however, that such 

limitation shall not hinder the effective operation of adequate relief to all POWs.

813 The special 

position of the ICRC in this field shall be recognized and respected at all times.814

9.33.2.2 Receipts for Relief Consignments. As soon as relief supplies or material 

intended for religious, educational, or recreative purposes are handed over to POWs, or very 

shortly afterwards, receipts for each consignment, signed by the POW Representative, shall be 

forwarded to the relief society or organization making the shipment.815 At the same time, 

receipts for these consignments shall be supplied by the administrative authorities responsible for 

guarding the POWs.816

9.34 DEATH OF POWS

This section addresses rules relating to the death of POWs. The GWS and GWS-Sea also 

have rules relating to the treatment of the dead; however, the GWS and GWS-Sea provisions are 

broader in application, e.g., they address members of the armed forces who have died on the 

battlefield and thus were not held as POWs.817

9.34.1 Transmittal of Wills. The Detaining Power has an obligation to help POWs with 

 811 GPW art. 125 (“Subject to the measures which the Detaining Powers may consider essential to ensure their 

security or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any 

other organization assisting prisoners of war, shall receive from the said Powers, for themselves and their duly 

accredited agents, all necessary facilities for visiting the prisoners, for distributing relief supplies and material, from 

any source, intended for religious, educational or recreative purposes, and for assisting them in organizing their 

leisure time within the camps.”).

812 GPW art. 125 (“Such societies or organizations may be constituted in the territory of the Detaining Power or in 

any other country, or they may have an international character.”).

813 GPW art. 125 (“The Detaining Power may limit the number of societies and organizations whose delegates are 

allowed to carry out their activities in its territory and under its supervision, on condition, however, that such 

limitation shall not hinder the effective operation of adequate relief to all prisoners of war.”).

814 GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shall be 

recognized and respected at all times.”).

815 GPW art. 125 (“As soon as relief supplies or material intended for the above-mentioned purposes are handed 

over to prisoners of war, or very shortly afterwards, receipts for each consignment, signed by the prisoners’ 

representative, shall be forwarded to the relief society or organization making the shipment.”).

816 GPW art. 125 (“At the same time, receipts for these consignments shall be supplied by the administrative 

authorities responsible for guarding the prisoners.”).

817 Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).
644

their wills.818 In all cases, after death, POWs’ wills shall be transmitted without delay to the 

Protecting Power, and a certified copy shall be sent to the Central POW Information Agency.

819

9.34.2 Death Certificates. Death certificates in the form given in Annex IV D to the 

GPW, or lists certified by a responsible officer, of all persons who die as POWs shall be 

forwarded as rapidly as possible to the National POW Information Bureau established in 

accordance with Article 122 of the GPW.820

The death certificates or certified lists shall show:

• particulars of identity, as set out in the third paragraph of Article 17 of the GPW, that are 

listed on the POW’s identity card;

o such as, surname; first names; rank; date of birth; and army, regimental, personal,

or serial number or equivalent information;

821

• the date and place of death;

• the cause of death;

• the date and place of burial; 

• where applicable, the fact of, and reasons for, cremation;822 and

• all particulars necessary to identify the graves or inurnment/columbarium location.823

9.34.3 Burial or Cremation and Inurnment. 

9.34.3.1 Medical Examination Before Burial or Cremation. The burial or 

cremation of a POW shall be preceded by a medical examination of the body with a view to 

confirming death and enabling a report to be made and, where necessary, establishing identity.

824 

For example, if a POW’s identity was not established before death, and the identity cannot be 

 818 Refer to § 9.21.2 (Legal Documents and Assistance).

819 GPW art. 120 (“[I]n all cases, after death, the will shall be transmitted without delay to the Protecting Power; a 

certified copy shall be sent to the Central Agency.”).

820 GPW art. 120 (“Death certificates in the form annexed to the present Convention, or lists certified by a 

responsible officer, of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the 

Prisoner of War Information Bureau established in accordance with Article 122.”).

821 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

822 Refer to § 9.34.3.3 (Cremation).

823 GPW art. 120 (“The death certificates or certified lists shall show particulars of identity as set out in the third 

paragraph of Article 17, and also the date and place of death, the cause of death, the date and place of burial and all 

particulars necessary to identity the graves.”).

824 GPW art. 120 (“The burial or cremation of a prisoner of war shall be preceded by a medical examination of the 

body with a view to confirming death and enabling a report to be made and, where necessary, establishing 

identity.”).
645

established, the report should include information that will enable the Power on which the POW 

depended to establish his or her identity (e.g., examination of teeth, fingerprints, photograph, 

DNA samples).

825

9.34.3.2 Burial. The detaining authorities shall ensure that POWs who have died 

in captivity are honorably buried, if possible according to the rites of the religion to which they 

belonged.826 

Wherever possible, deceased POWs who depended on the same Power shall be interred 

in the same place.827 Deceased POWs shall be buried in individual graves unless unavoidable 

circumstances require the use of collective graves.828 For example, an epidemic or military 

operations may require the Detaining Power to undertake collective burials in the interest of 

public health because individual graves are not possible due to lack of time and resources.

829

9.34.3.3 Cremation. Bodies of POWs may be cremated only for imperative 

reasons of hygiene, on account of the religion of the deceased, or in accordance with his or her 

express wish to this effect.830 In case of cremation, the fact shall be stated and the reasons given 

in the death certificate of the deceased.831

9.34.4 Maintenance and Records of Graves and Ashes. The detaining authorities shall 

ensure that the graves of POWs who have died in captivity are respected, suitably maintained, 

and marked so as to be found at any time.832

9.34.4.1 Records Held by the Graves Registration Service. In order that graves 

may always be found, all particulars of burials and graves shall be recorded with a Graves 

 825 GPW COMMENTARY 564-65 (“If, however, a prisoner’s identity remains in doubt (for instance, if he has not yet 

been questioned as provided in Article 17), the doctor will follow the same procedure as for those who have fallen 

on the battlefield: examination of papers found in the clothing of the dead man, questioning of his comrades or, if 

that is not possible, other methods must be adopted in order to enable the adverse Party to establish his identity, e.g. 

measurement and description of the body and its physical features, examination of the teeth, finger-prints, 

photograph, etc..”).

826 GPW art. 120 (“The detaining authorities shall ensure that prisoners of war who have died in captivity are 

honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are 

respected, suitably maintained and marked so as to be found at any time.”).

827 GPW art. 120 (“Wherever possible, deceased prisoners of war who depended on the same Power shall be interred 

in the same place.”).

828 GPW art. 120 (“Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances 

require the use of collective graves.”).

829 Compare § 10.34.3 (Burial or Cremation and Inurnment).

830 GPW art. 120 (“Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the 

deceased or in accordance with his express wish to this effect.”).

831 GPW art. 120 (“In case of cremation, the fact shall be stated and the reasons given in the death certificate of the 

deceased.”).

832 GPW art. 120 (“The detaining authorities shall ensure ... that their graves are respected, suitably maintained and 

marked so as to be found at any time.”).
646

Registration Service established by the Detaining Power.833 Lists of graves and particulars of the 

POWs interred in cemeteries and elsewhere shall be transmitted to the Power on which such 

POWs depended.834 Responsibility for the care of these graves and for records of any 

subsequent moves of the bodies shall rest on the Power controlling the territory, if that Power is a

Party to the GPW.

835

The Graves Registration Service shall also identify, record, and respectfully keep the 

ashes until they can be disposed of in accordance with the wishes of the home country.836

The GWS also provides for the Graves Registration Service to record graves of persons 

belonging to enemy military forces who died but were never held as POWs.837

9.34.5 Inquiries Into Death or Serious Injury of POWs in Certain Cases. Every death or 

serious injury of a POW caused or suspected to have been caused by a sentry, another POW, or 

any other person, as well as any death the cause of which is unknown, shall be immediately 

followed by an official inquiry by the Detaining Power.838 A communication on this subject 

shall be sent immediately to the Protecting Power.839

Serious injury, in many cases, may be understood to mean an injury that requires inpatient treatment in a hospital or infirmary.840

 833 GPW art. 120 (“In order that graves may always be found, all particulars of burials and graves shall be recorded 

with a Graves Registration Service established by the Detaining Power.”).

834 GPW art. 120 (“Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall 

be transmitted to the Power on which such prisoners of war depended.”).

835 GPW art. 120 (“Responsibility for the care of these graves and for records of any subsequent moves of the bodies 

shall rest on the Power controlling the territory, if a Party to the present Convention.”).

836 GPW art. 120 (“These provisions shall also apply to the ashes, which shall be kept by the Graves Registration 

Service until proper disposal thereof in accordance with the wishes of the home country.”).

837 Refer to § 7.7.5 (Graves Registration Service).

838 GPW art. 121 (“Every death or serious injury of a prisoner of war caused or suspected to have been caused by a 

sentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be 

immediately followed by an official enquiry by the Detaining Power.”). For example, FINAL REPORT ON THE 

PERSIAN GULF WAR 578 (“Eight EPW died in US custody; all as a result of injuries or sickness contracted prior to 

capture. Five died from combat injuries, one from malnutrition/dehydration, and two from unknown causes. Three 

US transferred prisoners died in Saudi camps due to wounds received while interned in the Saudi controlled camps. 

These deaths were investigated and reported through command channels to the ICRC, as required by Articles 120, 

122, and 123, GPW.”); 2004 UK MANUAL ¶8.176, footnote 452 (“In the Falklands conflict, an Argentinean PW was 

shot and killed to prevent an attempt to sabotage the captured submarine Santa Fé. The British notified the 

Argentinian authorities through the ICRC and established a board of inquiry to establish the facts.”).

839 GPW art. 121 (“A communication on this subject shall be sent immediately to the Protecting Power.”).

840 GPW COMMENTARY 570 (“What is meant by ‘serious injury’? At the 1949 Diplomatic Conference one 

delegation suggested that it should be made clear that the term referred to an injury ‘as a result of which the prisoner 

requires in-patient treatment in a hospital or infirmary’; this definition was not approved, however, and it might 

indeed have made the application of the Article too rigid. An injury may be not at all serious and nevertheless 

require treatment in the infirmary. Furthermore, it would have been dangerous to make the opening of an enquiry 

depend on whether or not the patient had been admitted to hospital for treatment. The two things must remain quite 

separate.”). Compare § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).
647

Statements shall be taken from witnesses, especially from those who are POWs, and a 

report including such statements shall be forwarded to the Protecting Power.841

If the inquiry indicates the guilt of one or more persons, the Detaining Power shall take 

all measures for the prosecution of the person or persons responsible.842

9.35 EXCHANGES AND OTHER RELEASE AND REPATRIATION OF POWS DURING HOSTILITIES

9.35.1 Exchange of POWs During Hostilities Through Cartel Agreements. The exchange 

of POWs, other than those whose repatriation is required by the GPW, may be effected by 

agreement between the belligerents.

843 Such agreements have been called cartels.844

The modern practice in this area has been infrequent.845

As a general principle, the exchange of POWs, other than those whose repatriation is 

required by the GPW, is an act of convenience to both belligerents.846

The conditions for exchange are generally prescribed in the cartel, and exchanges need 

not be on the basis of number-for-number, or rank-for-rank.847

 841 GPW art. 121 (“Statements shall be taken from witnesses, especially from those who are prisoners of war, and a 

report including such statements shall be forwarded to the Protecting Power.”).

842 GPW art. 121 (“If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all 

measures for the prosecution of the person or persons responsible.”).

843 For example, Edward Bates, Attorney General, Construction of a Cartel, Oct. 18, 1862, 10 OPINIONS OF THE 

ATTORNEY GENERAL 357 (1868) (“Following your verbal direction, I have carefully examined the cartel for the 

exchange of prisoners of war, agreed to by the parties on the 22d of July, 1862, at Haxall’s Landing, on James river, 

Virginia, and signed, respectively, by Major General Dix and Major General Hill, as the same is embodied in 

‘General Order No. 142’ issued from the War Department, September 25, 1862.”).

844 Refer to § 12.7 (Cartels).

845 For example, 1958 UK MANUAL ¶250 and note 3(b) (“In modern war between civilised States, an exchange of 

prisoners will rarely be carried out except by agreement between the governments concerned. ... In the First and 

Second World War no such exchanges took place. During the latter war some measured agreement was reached 

between Germany, the United Kingdom, the U.S.A. and Switzerland, whereby a number of prisoners of war of the 

three belligerent States interned in Switzerland were repatriated. No formal agreement was drawn up, and the 

negotiations were conducted by the diplomatic representatives of the belligerents direct with the Swiss Government. 

Germany insisted on a distinction between interned aircrews and other prisoners of war so that a certain number of 

German prisoners of war could be repatriated for every United States airman repatriated. Switzerland as a neutral 

State refused to permit repatriation except on a basis agreeable to all the belligerents concerned. Agreement was 

reached and repatriation was carried out on the basis of the German demand.”).

846 LIEBER CODE art. 109 (“The exchange of prisoners of war is an act of convenience to both belligerents. If no 

general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange 

prisoners of war.”).

847 1956 FM 27-10 (Change No. 1 1976) ¶197 (“Exchange of prisoners of war, other than those whose repatriation is 

required by GPW, may be effected by agreement between the belligerents. No belligerent is obliged to exchange 

prisoners of war, except if a general cartel requiring such exchange has been concluded. The conditions for 

exchange are as prescribed by the parties thereto, and exchanges need not necessarily be on the basis of number for 

number or rank for rank.”).
648

9.35.2 Release and Repatriation of POWs Not on the Basis of Exchange. Even when not 

required by the GPW or done on the basis of an exchange, a Detaining Power may release and 

repatriate POWs during hostilities to the Power to which they belong.

848

Such release and repatriation of POWs during hostilities may be accomplished between 

governments through agreements. In any case, POWs subject to release and repatriation should 

be interviewed by representatives of the Protecting Power or the ICRC to ensure that their return 

is voluntary.849

9.36 DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES DURING HOSTILITIES

The GPW provides for the direct repatriation or accommodation in neutral countries of 

certain wounded and sick POWs during hostilities.

POWs who meet with accidents shall, unless the injury is self-inflicted, have the benefit 

of the provisions of the GPW as regards repatriation or accommodation in a neutral country.

850 

States may also conclude agreements with a view to the direct repatriation or internment 

in a neutral country of able-bodied POWs who have undergone a long period of captivity.851

9.36.1 Direct Repatriation of Seriously Wounded, Injured, or Sick POWs. Parties to a 

conflict have an obligation to send back to their own country, regardless of number or rank, 

certain seriously wounded and seriously sick POWs, after having cared for them until they are fit 

enough to travel.852 Before the 1929 GPW, such repatriations occurred in accordance with 

specific agreements.853 Under the GPW, such repatriations have been conducted as part of 

 848 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE 

VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND 

HUMANITARIAN ACTION (1982) 31 (1984) (“The Falkland-Malvinas Islands’ conflict provides a rare example of 

prisoners being released even before the end of active hostilities. The British soldiers and the group of civilians 

captured by the Argentine forces when they landed on the island of South Georgia and on the Falkland-Malvinas 

archipelago were released almost immediately, via Montevideo, without the ICRC’s participation. In May and June, 

the ICRC took part in several release operations: ... . At the end of the hostilities, i.e. after 14 June 1982, a great 

number of prisoners were released in several groups over one month.”).

849 Compare § 9.37.4.2 (POWs Who Resist Repatriation).

850 GPW art. 114 (“Prisoners of war who meet with accidents shall, unless the injury is self-inflicted, have the 

benefit of the provisions of this Convention as regards repatriation or accommodation in a neutral country.”).

851 GPW art. 109 (“They may, in addition, conclude agreements with a view to the direct repatriation or internment 

in a neutral country of able-bodies prisoners of war who have undergone a long period of captivity.”).

852 GPW art. 109 (“Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to 

send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of 

war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following 

Article.”).

853 For example, 1958 UK MANUAL ¶255 note 1 (“In June, 1918, an agreement for the repatriation of prisoners of 

war on a large scale was concluded between Lord Cave’s mission and a German military mission. During the

Second World War repatriation of the sick and wounded was carried out by the belligerents in western Europe in 

accordance with the provisions of the 1929 Convention. There was no repatriation of sick and wounded between 

Germany and the U.S.S.R., or between Japan and the Allies.”).
649

exchanges or on a unilateral basis.854 

No sick or injured POW who is eligible for repatriation under the first paragraph of 

Article 109 of the GPW may be repatriated against his or her will during hostilities.855 

9.36.1.1 Categories of POWs Eligible for Direct Repatriation. The following 

categories of POWs shall be repatriated directly:

• incurably wounded and sick whose mental or physical fitness seems to have been gravely 

diminished;

• wounded and sick who, according to medical opinion, are not likely to recover within one 

year, whose condition requires treatment, and whose mental or physical fitness seems to 

have been gravely diminished; and

• wounded and sick who have recovered, but whose mental or physical fitness seems to 

have been gravely and permanently diminished.856

9.36.2 Accommodation in Neutral Countries. Throughout the duration of hostilities, 

parties to the conflict shall endeavor, with the cooperation of the neutral Powers concerned, to 

make arrangements for the accommodation in neutral countries of certain sick and wounded 

POWs as discussed below.

857 This provision of the GPW reflected prior State practice.858

 854 For example, LEVIE, POWS, 409-10 (“Subsequent to 1949 a number of occasions arose warranting the 

implementation of the provisions of the first paragraph of Article 109. In February 1953 the United Nations 

Command in Korea proposed the exchange of seriously wounded and seriously sick prisoners of war pursuant to that 

Article, a proposal which the North Koreans and Chinese Communists accepted. During April and May 1953, some 

6,640 North Korean and Chinese prisoners of war who had been found to be seriously wounded or seriously sick 

within the meaning of those terms as used in the Convention were exchanged for 684 members of the armed forces 

composing the United Nations Command. During the 1956 Middle East conflict, Israel repatriated a number of 

seriously wounded Egyptian prisoners of war in the course of the hostilities. During the 1962 Sino-Indian conflict, 

the People's Republic of China repatriated a number of seriously wounded or seriously sick Indian prisoners of 

war.”).

855 GPW art. 109 (“No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this 

Article, may be repatriated against his will during hostilities.”).

856 GPW art. 110 (“The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or 

physical fitness seems to have been gravely diminished. (2) Wounded and sick who, according to medical opinion, 

are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness 

seems to have been gravely diminished. (3) Wounded and sick who have recovered, but whose mental or physical 

fitness seems to have been gravely and permanently diminished.”).

857 GPW art. 109 (“Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the 

cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of 

the sick and wounded prisoners of war referred to in the second paragraph of the following Article.”).

858 For example, 1958 UK MANUAL ¶255 note 1 (“During the First World War agreements were arrived at between 

the Allies and Germany early in 1916 whereby all wounded prisoners of war held by their respective Governments, 

as well as those suffering from any one of twenty specified diseases or infirmities, were to be transferred to 

Switzerland. Later, agreements were arrived at whereby those who had been in captivity for not less than eighteen 

months and who fulfilled certain conditions as regards age and citizenship were to be repatriated or interned in a 

neutral country. Some 16,000 British and German prisoners of war were interned in Holland. In March, 1918, it 
650

9.36.2.1 Categories of Wounded, Injured, or Sick to Be Accommodated in a 

Neutral State. The following categories of POWs may be accommodated in a neutral country:

• wounded, injured, or sick whose recovery may be expected within one year of the date of 

the wound or the beginning of the illness, if treatment in a neutral country might increase 

the prospects of a more certain and speedy recovery; and

• POWs whose mental or physical health, according to medical opinion, is seriously 

threatened by continued captivity, but whose accommodation in a neutral country might 

remove such a threat.

859

9.36.3 Agreements to Intern POWs in Neutral Territory. The Detaining Power, the 

Power on which the POWs depend, and a neutral Power agreed upon by these two Powers, shall 

endeavor to conclude agreements that will enable POWs to be interned in the territory of that

neutral Power until the close of hostilities.

860 For example, if the Detaining Power were unable 

to comply with the minimum standards in the GPW for the treatment of POWs, then it would 

seek to negotiate such agreements with the Power on which the POWs depend and a neutral 

Power.861

9.36.3.1 Repatriation From a Neutral State. The conditions that POWs

accommodated in a neutral country must fulfill in order to permit their repatriation shall be fixed, 

as shall likewise their status, by agreement between the Powers concerned.862 In general, POWs 

who have been accommodated in a neutral country, and who belong to the following categories,

should be repatriated:

• those whose health has deteriorated so far as to fulfill the conditions for direct 

 

was stated that 26,000 prisoners of war of the several belligerents were being cared for in Switzerland. Of these, 

16,000 were British, French and Belgian, while 10,000 were German; besides these, some 500,000 invalid and sick 

prisoners of war of various nationalities had been exchanged and repatriated through Switzerland since the 

beginning of the war.”).

859 GPW art. 110 (“The following may be accommodated in a neutral country: (1) Wounded and sick whose 

recovery may be expected within one year of the date of the wound or the beginning of the illness, if treatment in a 

neutral country might increase the prospects of a more certain and speedy recovery. (2) Prisoners of war whose 

mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose 

accommodation in a neutral country might remove such a threat.”).

860 GPW art. 111 (“The Detaining Power, the Power on which the prisoners of war depend, and a neutral Power 

agreed upon by these two Powers, shall endeavour to conclude agreements which will enable prisoners of war to be 

interned in the territory of the said neutral Power until the close of hostilities.”).

861 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 365 (“The Committee considered 

that it was necessary to insert a new Article between Articles 101 and 102, in order to provide for the possibility of 

agreements between the Detaining Power, the Power on which the prisoners of war depend, and a neutral Power, 

permitting the internment of prisoners of war on neutral territory. This decision, which arose out of a proposal by 

the Canadian Delegation, aims at ensuring a reasonable standard of living for all prisoners of war, in the event of the 

Detaining Power being unable, for any reason, to comply with the minimum standards regarding the treatment of 

prisoners of war laid down in the Convention.”).

862 GPW art. 110 (“The conditions which prisoners of war accommodated in a neutral country must fulfil in order to 

permit their repatriation shall be fixed, as shall likewise their status, by agreement between the Powers concerned.”).
651

repatriation;

863 and 

• those whose mental or physical powers remain, even after treatment, considerably 

impaired.864

9.36.4 Lack of Special Agreements to Determine Cases of Disablement or Sickness 

Entailing Direct Repatriation or Accommodation in a Neutral Country. If no special agreements 

are concluded between the parties to the conflict concerned to determine the cases of disablement 

or sickness entailing direct repatriation or accommodation in a neutral country, such cases shall 

be settled in accordance with the principles laid down in the Model Agreement concerning direct 

repatriation and accommodation in neutral countries of wounded and sick POWs and in the 

Regulations concerning Mixed Medical Commissions annexed to the GPW (GPW Annex II).

865

9.36.5 Mixed Medical Commissions. Upon the outbreak of hostilities, Mixed Medical 

Commissions shall be appointed to examine sick and wounded POWs, and to make all 

appropriate decisions regarding them.866 The appointment, duties, and functioning of these 

Commissions shall be in conformity with the provisions of the Regulations annexed to the GPW 

(GPW Annex II).

867 

9.36.5.1 Examination Not Necessary for Manifestly Seriously Injured or Sick 

POWs. POWs who, in the opinion of the medical authorities of the Detaining Power, are 

manifestly seriously injured or seriously sick may be repatriated without having to be examined 

by a Mixed Medical Commission.868

9.36.5.2 POWs Entitled to Present Themselves for Examination Before the 

Commission. Besides those who are designated by the medical authorities of the Detaining 

Power, wounded or sick POWs belonging to the categories listed below shall be entitled to 

present themselves for examination by the Mixed Medical Commissions provided for in Article

112 of the GPW:

 863 Refer to § 9.36.1.1 (Categories of POWs Eligible for Direct Repatriation).

864 GPW art. 110 (“In general, prisoners of war who have been accommodated in a neutral country, and who belong 

to the following categories, should be repatriated: (1) those whose state of health has deteriorated so as to fulfil the 

conditions laid down for direct repatriation; (2) those whose mental or physical powers remain, even after treatment, 

considerably impaired.”).

865 GPW art. 110 (“If no special agreements are concluded between the Parties to the conflict concerned, to 

determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country, 

such cases shall be settled in accordance with the principles laid down in the Model Agreement concerning direct 

repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations 

concerning Mixed Medical Commissions annexed to the present Convention.”).

866 GPW art. 112 (“Upon the outbreak of hostilities, Mixed Medical Commissions shall be appointed to examine 

sick and wounded prisoners of war, and to make all appropriate decisions regarding them.”).

867 GPW art. 112 (“The appointment, duties and functioning of these Commissions shall be in conformity with the 

provisions of the Regulations annexed to the present Convention.”).

868 GPW art. 112 (“However, prisoners of war who, in the opinion of the medical authorities of the Detaining Power, 

are manifestly seriously injured or seriously sick, may be repatriated without having to be examined by a Mixed 

Medical Commission.”).
652

• Wounded and sick proposed by a physician or surgeon who is of the same nationality, or 

a national of a party to the conflict allied with the Power on which these POWs depend, 

and who exercises his or her functions in the camp;

• Wounded and sick proposed by their POW Representative; and

• Wounded and sick proposed by the Power on which they depend, or by an organization 

duly recognized by this Power and giving assistance to the POWs.

869

POWs who do not belong to one of the three foregoing categories may nevertheless 

present themselves for examination by Mixed Medical Commissions, but shall be examined only 

after those belonging to the three foregoing categories.870

9.36.5.3 Observers at the Examination. The physician or surgeon of the same 

nationality as the POWs who present themselves for examination by the Mixed Medical 

Commission, and the POW Representative of these POWs, shall have permission to be present at 

the examination.871

9.36.6 Costs of Repatriation or Transportation to a Neutral Country During Hostilities. 

The costs of repatriating POWs or of transporting them to a neutral country are borne, from the 

frontiers of the Detaining Power, by the Power on which the POWs depend.872

9.36.7 Employment of Persons Who Have Been Repatriated. No repatriated person may 

be employed on active military service.873 

9.36.7.1 No Repatriated Person. The rule against employment on active military 

service only applies to POWs repatriated by the Detaining Power pursuant to Articles 109 and 

110 of the GPW.874 For example, able-bodied POWs who are voluntarily repatriated by the 

 869 GPW art. 113 (“Besides those who are designated by the medical authorities of the Detaining Power, wounded or 

sick prisoners of war belonging to the categories listed below shall be entitled to present themselves for examination 

by the Mixed Medical Commissions provided for in the foregoing Article: (1) Wounded and sick proposed by a 

physician or surgeon who is of the same nationality, or a national of a Party to the conflict allied with the Power on 

which the said prisoners depend, and who exercises his functions in the camp. (2) Wounded and sick proposed by 

their prisoners’ representative. (3) Wounded and sick proposed by the Power on which they depend, or by an 

organization duly recognized by the said Power and giving assistance to the prisoners.”).

870 GPW art. 113 (“Prisoners of war who do not belong to one of the three foregoing categories may nevertheless 

present themselves for examination by Mixed Medical Commissions, but shall be examined only after those 

belonging to the said categories.”).

871 GPW art. 113 (“The physician or surgeon of the same nationality as the prisoners who present themselves for 

examination by the Mixed Medical Commission, likewise the prisoners' representative of the said prisoners, shall 

have permission to be present at the examination.”).

872 GPW art. 116 (“The cost of repatriating prisoners of war or of transporting them to a neutral country shall be 

borne, from the frontiers of the Detaining Power, by the Power on which the said prisoners depend.”).

873 GPW art. 117 (“No repatriated person may be employed on active military service.”).

874 See 1958 UK MANUAL ¶262 note 1 (“This article repeats the provisions of the 1929 Convention, Art. 74, which 

was considered to apply only to prisoners who were repatriated sick or wounded and not to exchanges by 

agreements made outside the Convention. This would also seem to be the proper scope of Art. 117.”); GPW
653

unilateral decision of the Detaining Power during hostilities may be employed on active military 

service.875

9.36.7.2 Active Military Service. Not all military service is “active military 

service.” Repatriated persons may remain employed on military service.876 What “active 

military service” they may engage in after repatriation may be the subject of agreements pursuant 

to Articles 109 and 110 of the GPW. Absent such agreements, active military service may be 

understood as broadly covering any participation, whether direct or indirect, in armed operations 

against the former Detaining Power or its allies, but to exclude medical work or strictly 

administrative duties.

877

9.37 RELEASE AND REPATRIATION AFTER HOSTILITIES

POWs shall be released and repatriated without delay after the cessation of active 

hostilities.878

9.37.1 Agreements on POW Release and Repatriation. The release and repatriation of 

POWs generally have been addressed by peace treaties or other agreements among belligerents 

 

COMMENTARY 538 (“The Article covers prisoners of war repatriated by the Detaining Power pursuant to Articles 

109 and 110, that is to say seriously wounded or seriously sick prisoners of war whom the Detaining Power is 

required to repatriate regardless of number or rank (Article 109, paragraph 1), prisoners of war accommodated in a 

neutral country and subsequently repatriated following an agreement between the Powers concerned (Article 110, 

paragraph 2), and lastly, able-bodied prisoners of war who have undergone a long period of captivity and are 

repatriated by agreement between the Powers concerned (Article 109, paragraph 2).”).

875 2004 UK MANUAL ¶8.155.1 footnote 417 (“Despite its apparent general application, Art 117 is taken to apply 

only to PW repatriated under the special rules laid down in Arts 109-110 (see Pictet, Commentary, vol III, 538). It 

does not apply to able-bodied PW who are voluntarily repatriated by the unilateral decision of the detaining power 

during hostilities. The UK sent members of the Royal Marine garrison of the Falkland Islands, who had been 

captured and then repatriated by Argentina, back into combat with the Task Force that re-took the Islands in 1982.”).

876 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 573 (“Articles 106 (Costs) and 

107 (Activity after repatriation) reproduce the corresponding provisions of the 1929 Convention. It may be 

mentioned, however, that the word ‘active’ in the expression ‘active military service’ in Article 107 gave rise to long 

discussion. Some Delegations wished to see it deleted; others were in favour of keeping it because it is usual for 

many repatriated prisoners of war to depend on the administrative service of armies. Finally, the proposal to delete 

the word was rejected by the Committee by a small majority.”).

877 See GPW COMMENTARY 539 (“In interpreting this phrase, the spirit of the Convention rather than national 

legislation should serve as a guide. It is, of course, difficult to give a precise definition, but the expression may be 

considered as broadly covering any participation, whether direct or indirect, in armed operations against the former 

Detaining Power or its allies. In effect, Article 117 forbids any repatriated person to serve in units which form part 

of the armed forces but does not prevent their enrolment in unarmed military units engaged solely in auxiliary, 

complementary or similar work. In concluding agreements pursuant to Articles 109 and 110, the Parties concerned 

are at liberty to stipulate what is meant by ‘active’ service in the particular case concerned.”); 1956 FM 27-10 

(Change No. 1 1976) ¶196b (“Although it is not possible to frame any comprehensive rule concerning what 

constitutes ‘active military service,’ Article 117 does not preclude a repatriated person from performing medical or 

strictly administrative duties but does foreclose service in combat against the power formerly detaining the 

individual or an ally thereof.”).

878 GPW art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active 

hostilities.”).
654

at the end of the war.879 For example, agreements may address the apportionment of costs or 

commissions to search for dispersed POWs.880

In the absence of stipulations to the above effect in any agreement concluded between the 

parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, 

each of the Detaining Powers shall itself establish and execute without delay a plan of 

repatriation in conformity with the principle laid down in paragraph 1 of the Article 118 of the 

GPW.881 Thus, once active hostilities have ceased, the Detaining Powers must release and 

repatriate POWs, even if there is no specific agreement regarding the release and repatriation of 

POWs, or even if a formal peace agreement ending the war has not yet been concluded.882

During the process of releasing and repatriating POWs, it is proper to expect that each 

party’s conduct with respect to the repatriation of POWs will be reasonable and broadly 

commensurate with the conduct of the other.883 For example, it would not be reasonable to 

expect that a State would release all of the POWs it holds without assurance that its own 

 879 For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“In March [of 1991], Coalition forces and Iraq 

signed a memorandum of understanding detailing administrative procedures for the repatriation of the remaining 

EPW, under ICRC auspices. On 4 March, Iraq released the first group of 10 Coalition POWs, six of whom were 

American. On 6 March, the US reciprocated by releasing 294 EPWs to the ICRC for repatriation to Iraq.”); 

Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme 

Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other 

hand, Concerning a Military Armistice in Korea art. 51, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132, 

137 (Aug. 3, 1953) (“The release and repatriation of all prisoners of war held in the custody of each side at the time 

this armistice agreement becomes effective shall be effected in conformity with the following provisions agreed 

upon by both sides prior to the signing of this Armistice Agreement.”).

880 Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities); § 9.37.5 (Commissions to Search for 

Dispersed POWs).

881 GPW art. 118 (“In the absence of stipulations to the above effect in any agreement concluded between the Parties 

to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers 

shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in 

the foregoing paragraph.”).

882 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“That provision [of Article 118 of the GPW] 

was inspired by the experience of the situation as it developed after the Second World War when, following upon 

the unconditional surrender of Italy, Germany, and Japan, no treaty of peace was concluded between the principal 

belligerents for some years and when public opinion in many countries viewed with disapproval the continued 

detention of prisoners of war at a time when there was no longer any reasonable possibility that hostilities might be 

resumed.”).

883 Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶149 (Jul. 1, 2003) 

(“The Commission finds that, given the character of the repatriation obligation and state practice, it is appropriate to 

consider the behavior of both Parties in assessing whether or when Ethiopia failed to meet its obligations under 

Article 118. In the Commission’s view, Article 118 does not require precisely equivalent behavior by each Party. 

However, it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable 

and broadly commensurate with the conduct of the other. Moreover, both Parties must continue to strive to ensure 

compliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible 

following the cessation of active hostilities. Neither Party may unilaterally abandon the release and repatriation 

process or refuse to work in good faith with the ICRC to resolve any impediments.”).
655

personnel held by the enemy will also be released.884

9.37.2 Cessation of Active Hostilities. According to Lauterpacht, the phrase “cessation 

of active hostilities” probably does not refer to a situation that leaves open the possibility of a 

resumption of struggle, but to a situation in which it is out of the question for hostilities to 

resume.885 It is the complete end of the fighting with clearly no probability of resumption of 

hostilities in the near future.886 The cessation of active hostilities may also be understood as 

describing the point in time when belligerents feel sufficiently at ease about the future that they 

are willing to release and repatriate all POWs.887 The cessation of active hostilities may result 

from a capitulation or agreement, but such an agreement is not required if there is no prospect 

that hostilities will resume.

9.37.3 Without Delay. The GPW provides that release and repatriation take place 

without delay. This requirement, however, does not affect the practical arrangements that must 

be made to ensure that repatriation takes place in a safe and orderly manner in accordance with 

the requirements of the GPW.888

 884 Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶148 (Jul. 1, 2003) 

(“There is also a fundamental question whether and to what extent each Party’s obligation to repatriate depends 

upon the other’s compliance with its repatriation obligations. The language of Article 118 is absolute. 

Nevertheless, as a practical matter, and as indicated by state practice, any state that has not been totally defeated is 

unlikely to release all the POWs it holds without assurance that its own personnel held by its enemy will also be 

released, and it is unreasonable to expect otherwise. At the hearing, distinguished counsel for Eritrea suggested that 

the obligation to repatriate should be seen as unconditional but acknowledged the difficulty of the question and the 

contrary arguments under general law.”).

885 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“Probably the phrase ‘cessation of active 

hostilities’ in the sense of Article 118 [of the GPW] refers not to suspension of hostilities in pursuance of an 

ordinary armistice which leaves open the possibility of a resumption of the struggle, but to a cessation of hostilities 

as the result of total surrender or of such circumstances or conditions of an armistice as render it out of the question 

for the defeated party to resume hostilities.”).

886 CHRISTIANE SHIELDS DELESSERT, RELEASE AND REPATRIATION OF PRISONERS OF WAR AT THE END OF ACTIVE 

HOSTILITIES: A STUDY OF ARTICLE 118, PARAGRAPH 1 OF THE THIRD GENEVA CONVENTION RELATIVE TO THE 

TREATMENT OF PRISONERS OF WAR 71-72 (1977) (“Is the phrase ‘end of active hostilities’ to be interpreted as 

referring to situations where it is clear that active hostilities have definitely stopped and will not be resumed, for 

example, as the result of surrender, or can it be interpreted in a more flexible way so as to take account of situations 

where the pattern has been an alternation of military operations and peaceful periods? If, once again, one refers to 

the Second World War which directly influenced the specific wording of Article 118, it would seem that what was 

envisaged was a situation of complete end of the war, if not in a legal sense, at least in a material one with clearly no 

probability of resumption of hostilities in a near future. The end of war for the purpose of the application of Article 

118, meant the end of military operations. In the light of the history of Article 118, this would seem to be the proper 

interpretation to be given to it.”).

887 Edward R. Cummings, Acting Assistant Legal Adviser for African Affairs, Memorandum of Law to Chester A. 

Crocker, Assistant Secretary of State for African Affairs, Sept. 21, 1984, III CUMULATIVE DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 1981-1988, 3471, 3474 (Under the GPW, “the ‘cessation’ concept describes the 

point in time that belligerents feel sufficiently ... [at ease] about the future that they are willing to release all 

prisoners of war and civilian internees.”) (alterations to the quote in original).

888 GPW COMMENTARY 550 (“The text as finally adopted states that the repatriation must take place ‘without delay 

after the cessation of active hostilities’. This requirement does not, of course, affect the practical arrangements 

which must be made so that repatriation may take place in conditions consistent with humanitarian rules and the 
656

For example, the availability of manpower and transportation to conduct the repatriation, 

continuing military operations in other theaters, or the ability of countries to receive POWs in 

large numbers, may all increase the time required to conduct the release and repatriation.

889 The 

security situation in the country in which POWs are to be released may also be an important 

factor.890 In addition, time may be needed based on the medical condition of the POWs or in 

order to conduct interviews to ensure that repatriation is voluntary.

9.37.4 POWs Whom the Detaining Power Is Not Required to Repatriate. 

9.37.4.1 Persons Illegally Enrolled in Enemy Forces and Deserters. The 

obligation to repatriate does not apply to persons who have been illegally enrolled in the armed 

forces of the enemy (for example, the inhabitants of occupied territories who have been forced to 

enlist in the military of the Occupying Power), or to persons who have deserted to the other 

side.

891

9.37.4.2 POWs Who Resist Repatriation. The Detaining Power is not required to 

repatriate forcibly POWs who do not wish to be repatriated. 

Although the GPW provides that POWs may not renounce the rights secured to them by 

the GPW,892 this principle is not violated by the POW rejecting repatriation and requesting 

asylum, if it is established in a satisfactory manner that the POW is making an informed, 

 

requirements of the Convention, as defined in Article 119, paragraph 1, below, which refers to Articles 46 to 48 

(relating to transfer).”).

889 For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“After the cease fire, expeditious repatriation of 

EPWs was a high priority and Coalition officials promptly began talks with Iraqi representatives on EPW 

exchanges. Iraq said it was anxious to return Coalition POWs, but was unwilling to accept large numbers of EPWs 

in return, saying it was not prepared to receive them.”); Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW 

REVIEW 51, 74 (1946) (“Because of manpower and transportation shortages, because the war was still being fought 

against Japan, and because of the inability on the part of the European and Mediterranean theaters to receive 

prisoners of war from the United States in large numbers, the prisoner-of-war repatriation program did not assume 

large proportions until after V-J Day.”).

890 For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 293 (1975) 

(“SHAEF could not authorize a ‘blanket release’ of German forces, Eisenhower replied, because their discharge had 

to be ‘strictly controlled in order to prevent widespread disorder, or other conditions which military government 

agencies will be unable to cope with’; the release of the categories already approved (see below) would ‘tax the 

administrative machinery for a considerable time . . . . Until such time as indigenous resources can meet the needs,’ 

he concluded, 12th Army Group could use imported military government food for the disarmed forces.”) (ellipsis in 

original).

891 GPW COMMENTARY 549 (“Enemy military personnel who have been illegally enrolled in the armed forces 

cannot be treated on the same basis as other prisoners of war, nor can those who go over to the other side. Although 

many countries, for instance Great Britain, treated the latter as prisoners of war, this does not mean that they are 

entitled to that status. The Detaining Power is under no obligation to repatriate persons who have deserted to the 

other side. Similarly, their names are not usually notified to their country of origin. It should, however, be noted 

that the status of a deserter who has gone over to the other side must be determined by the way in which he 

surrendered or by his statements during initial questioning. A prisoner of war does not become a deserter merely 

because he makes a statement in the course of captivity.”).

892 Refer to § 9.3.7 (Non-Renunciation of Rights Secured by the GPW).
657

voluntary, and personal choice.893 Thus, the GPW does not itself change accepted principles of 

international law under which asylum is applicable to POWs, and the Detaining Power may, but 

is not required to, grant asylum.

894 The policy of the United States has been not to conduct 

forcible repatriation of POWs and, in particular, not to transfer any person when torture is more 

likely than not to result.895

The voluntariness of POWs’ decisions may be established through interviews by an 

impartial intermediary, such as a neutral State or the ICRC.896

9.37.4.3 POWs Undergoing Criminal Proceedings for an Indictable Offense. The 

repatriation of a POW may not be delayed on the basis that the POW has not undergone 

 893 LEVIE, POWS 93 (“The question of the extent of the coverage of Article 7 was directly raised during the armistice 

negotiations in Korea in connection with the problem of repatriation under Article 118. Is it a violation of Article 7 

to permit a prisoner of war to reject repatriation and to seek asylum either in the territory of the Detaining Power, or 

elsewhere, when hostilities cease? The decision ultimately reached in that controversy, one that had the support of a 

large majority of the United Nations General Assembly as then composed, was that Article 7 was not violated if it 

could be established in a satisfactory manner that the prisoner of war was actually making an informed, voluntary, 

and personal choice.”).

894 SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the 

Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun. 27, 1955) 

(“Members of the committee, exploring the problem of involuntary repatriation with the executive branch, were 

informed at the hearing that the United States official position continues to be that maintained in Korea and 

overwhelmingly supported in the resolution of the General Assembly, and that article 118 does nothing to change 

accepted principles of international law under which asylum is applicable to prisoners of war. The committee 

unqualifiedly concurs. It finds nothing in the Geneva conventions of 1949 which will compel the United States 

forcibly to repatriate prisoners of war who fear political persecution, personal injury, or death should they return to

their homeland. That article, being intended for the benefit and the well-being of prisoners, will permit the United 

States to continue the policy of nonforceable repatriation, while at the same time leaving it free, where necessary, to 

refuse requests for asylum. The interpretation which has thus prevailed gives due weight to the word ‘release’ in 

article 118, is faithful to precedent and legislative history, and is fully consistent with the great humanitarian 

purposes which underlie all four of the conventions.”).

895 Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

896 For example, FINAL REPORT ON THE PERSIAN GULF WAR 587 (“By international convention, no EPW was 

forcibly repatriated. Coalition forces identified to the ICRC Iraqi EPW not desiring repatriation. When an Iraqi 

reached the exchange site, the ICRC reconfirmed willingness to be repatriated. Those who indicated they no longer 

desired to return to Iraq were returned to the custody of Saudi Arabia. ... On 2 May 1991, the last EPW in US 

custody was transferred to the Saudi Arabian government. The Coalition repatriation began on 6 March and ended 

on 22 August. A total of 13,418 EPWs refused repatriation (13,227 remain at Camp Al-Artawiyah and 191 officer 

EPWs remain at Camp Tabuk).”); R. R. Baxter, Asylum to Prisoners of War, 30 BRITISH YEAR BOOK OF 

INTERNATIONAL LAW 489, 489-90 (1953) (“After hostilities had ended in Korea and those prisoners of war who 

desired to be repatriated had been restored to the forces of which they were members, there remained over 22,000 

prisoners of war in the custody of the United Nations Command and several hundreds in the hands of the Command 

of the Korean People’s Army and Chinese People’s Volunteers who had not elected to return. In accordance with 

the Resolution of the United Nations General Assembly of 3 December 1952, the Terms of Reference for the 

Neutral Nations Repatriation Commission annexed to the Korean Armistice Agreement provided that prisoners who 

had not ‘exercised their right to be repatriated’ should be placed in the custody of a Neutral Nations Repatriation 

Commission (N.N.R.C.), composed of members appointed by Sweden, Switzerland, Poland, Czechoslovakia, and 

India. ... Commissions with neutral representation had in a number of previous instances been employed to 

supervise the repatriation of prisoners.”).
658

disciplinary proceedings or punishment.897

POWs against whom criminal proceedings for an indictable offense are pending may be 

detained until the end of such proceedings, and, if necessary, until the completion of the 

punishment.898 The same shall apply to POWs already convicted for an indictable offense.899 

In fact, in most instances, as the Supreme Court has observed, the practical administration 

of the system of military justice under the law of war would fail if such authority were thought to 

end with the cessation of hostilities because only after their cessation could the greater number of 

offenders and the principal ones be apprehended and tried.900

Parties to the conflict shall communicate to each other the names of any POWs who are 

detained until the end of the proceedings or until punishment has been completed.901

The GPW does not prohibit the extradition of POWs to other Parties to the GPW to face 

criminal charges.

902

POWs held after the cessation of active hostilities on this basis, even if they have been 

convicted, remain entitled to the benefits of the GPW until they are released and repatriated.903

9.37.5 Commissions to Search for Dispersed POWs. By agreement between the parties

to the conflict, commissions shall be established for the purpose of searching for dispersed 

POWs and of ensuring their repatriation with the least possible delay.904

9.37.6 Costs of Repatriation at the Close of Hostilities. The costs of repatriation of 

 897 Compare § 9.27.7 (Disciplinary Punishment and Repatriation or Accommodation in a Neutral Country).

898 GPW art. 119 (“Prisoners of war against whom criminal proceedings for an indictable offence are pending may 

be detained until the end of such proceedings, and, if necessary, until the completion of the punishment.”).

899 GPW art. 119 (“The same shall apply to prisoners of war already convicted for an indictable offence.”).

900 See In re Yamashita, 327 U.S. 1, 12 (1946) (“We cannot say that there is no authority to convene a commission 

after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace 

has been officially recognized by treaty or proclamation of the political branch of the Government. In fact, in most 

instances the practical administration of the system of military justice under the law of war would fail if such 

authority were thought to end with the cessation of hostilities. For only after their cessation could the greater 

number of offenders and the principal ones be apprehended and subjected to trial.”).

901 GPW art. 119 (“Parties to the conflict shall communicate to each other the names of any prisoners of war who are 

detained until the end of the proceedings or until punishment has been completed.”).

902 See Noriega v. Pastrana, 564 F.3d 1290, 1298 (11th Cir. Fla. 2009) (“As a result of Noriega’s conviction in the 

United States, article 119 authorized the United States to prolong his detention for the duration of his sentence—

beyond the cessation of hostilities between the United States and Panama. Nowhere, however, is it suggested that a 

prisoner of war may not be extradited from one party to the Convention to face criminal charges in another. Nor do 

the stated purposes of articles 118 and 119, as reflected by their commentary, preclude detention in these 

circumstances: article 118 is intended to prohibit ‘prolong[ed] war captivity,’ while article 119 unambiguously 

reflects the intention of the drafters to permit detention of prisoners of war subject to criminal proceedings.”).

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

904 GPW art. 119 (“By agreement between the Parties to the conflict, commissions shall be established for the 

purpose of searching for dispersed prisoners of war and of assuring their repatriation with the least possible delay.”).
659

POWs shall in all cases be equitably apportioned between the Detaining Power and the Power on 

which the POWs depend.905 

If the two Powers are contiguous, then the Power on which the POWs depend shall bear

the costs of repatriation from the frontiers of the Detaining Power.906 

If the two Powers are not contiguous, the Detaining Power shall bear the costs of 

transport of POWs over its own territory as far as its frontier or its port of embarkation nearest to 

the territory of the Power on which the POWs depend.907 The Parties concerned shall agree 

between themselves on the equitable apportionment of the remaining costs of the repatriation, 

but the conclusion of such agreement shall in no circumstances justify any delay in the 

repatriation of the POWs.

908

9.38 PROCEDURE ON RELEASE AND REPATRIATION AFTER HOSTILITIES

9.38.1 Conditions During Release and Repatriation. Repatriation shall be effected in 

conditions similar to those laid down in Articles 46 through 48 of the GPW for the transfer of 

POWs, having regard to the provisions of Article 118 of the GPW and to those of Article 119 of 

the GPW.

909 

9.38.1.1 Conditions of Movement. The conditions of repatriation must be humane 

and not less favorable than those under which the forces of the Detaining Power are 

transferred.910 Adequate precautions must be taken for the health and safety of POWs, including 

provision of sufficient food, drinking water, clothing, shelter, and medical attention.911

9.38.2 Notification of Repatriation Plan and Departure. POWs should be informed of the 

plan for their repatriation.

912 For example, this may take place through notices posted in the 

camps and provided to the POW Representatives, or a public announcement.913

 905 GPW art. 118 (“The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between 

the Detaining Power and the Power on which the prisoners depend.”).

906 GPW art. 118 (“If the two Powers are continguous, the Power on which the prisoners of war depend shall bear 

the costs of repatriation from the frontiers of the Detaining Power.”).

907 GPW art. 118 (“If the two Powers are not contiguous, the Detaining Power shall bear the costs of transport of 

prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the 

Power on which the prisoners of war depend.”).

908 GPW art. 118 (“The parties concerned shall agree between themselves as to the equitable apportionment of the 

remaining costs of the repatriation. The conclusion of this agreement shall in no circumstances justify any delay in 

the repatriation of the prisoners of war.”).

909 GPW art. 119 (“Repatriation shall be effected in conditions similar to those laid down in Articles 46 to 48 

inclusive of the present Convention for the transfer of prisoners of war, having regard to the provisions of Article 

118 and to those of the following paragraphs.”).

910 Refer to § 9.29.2 (Conditions for the Transfer of POWs).

911 Refer to § 9.29.2 (Conditions for the Transfer of POWs).

912 GPW art. 118 (“In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.”).

913 Refer to § 9.22.5 (Posting of Convention and Camp Orders).
660

POWs who are to be moved must be identified and listed before departure, and both the 

National POW Information Bureau and the POWs themselves officially notified in advance, so 

that they can pack their baggage and inform their next of kin.914

9.38.3 Personal Property. On repatriation, any articles of value impounded from POWs

under Article 18 of the GPW,915 and any foreign currency that has not been converted into the 

currency of the Detaining Power, shall be restored to them.916 Articles of value and foreign 

currency that, for any reason whatever, are not restored to POWs on repatriation, shall be sent to 

the National POW Information Bureau set up under Article 122 of the GPW.917

POWs shall be allowed to take with them their personal effects and any correspondence 

and parcels that have arrived for them.918 The weight of such baggage may be limited, if the

conditions of repatriation so require, to what each POW can reasonably carry.919 Each POW 

shall in all cases be authorized to carry at least 25 kilograms (approximately 55 pounds).

920 The 

other personal effects of the repatriated POW shall be left in the charge of the Detaining Power,

which shall have them forwarded to him or her as soon as it has concluded an agreement to this 

effect, regulating the conditions of transport and the payment of the costs involved, with the 

Power on which the POW depends.921

9.38.4 POW Accounts and Financial Matters. POW accounts should be addressed in 

accordance with Article 66 of the GPW.922 

In addition, the Powers concerned should make arrangements concerning advances of 

pay, compensation payments, and remittances.923

9.38.5 Canteen Profits. The profits of the canteen should be disposed of in accordance 

 914 Refer to § 9.29.3.1 (Notification of Transfer).

915 Refer to § 9.7.4 (Money and Articles of Value).

916 GPW art. 119 (“On repatriation, any articles of value impounded from prisoners of war under Article 18, and any 

foreign currency which has not been converted into the currency of the Detaining Power, shall be restored to 

them.”).

917 GPW art. 119 (“Articles of value and foreign currency which, for any reason whatever, are not restored to 

prisoners of war on repatriation, shall be despatched to the Information Bureau set up under Article 122.”).

918 GPW art. 119 (“Prisoners of war shall be allowed to take with them their personal effects, and any 

correspondence and parcels which have arrived for them.”).

919 GPW art. 119 (“The weight of such baggage may be limited, if the conditions of repatriation so require, to what 

each prisoner can reasonably carry.”).

920 GPW art. 119 (“Each prisoner shall in all cases be authorized to carry at least twenty-five kilograms.”).

921 GPW art. 119 (“The other personal effects of the repatriated prisoner shall be left in the charge of the Detaining 

Power which shall have them forwarded to him as soon as it has concluded an agreement to this effect, regulating 

the conditions of transport and the payment of the costs involved, with the Power on which the prisoner depends.”).

922 Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).

923 GPW art. 67 (“Such advances of pay, as well as all payments made by the said Power under Article 63, third 

paragraph, and Article 68, shall form the subject of arrangements between the Powers concerned, at the close of 

hostilities.”).
661

with Article 28 of the GPW.

924

9.39 CODE OF CONDUCT FOR U.S. ARMED FORCES

The Code of Conduct is a moral code designed to provide U.S. military personnel with a 

standard of conduct.925 Although designed for situations in which members of the U.S. armed 

forces may be held as POWs, the spirit and intent of the Code apply to service members 

subjected to other types of hostile detention, such as hostage scenarios.926 

9.39.1 Text of the Code of Conduct and Discussion. The Code of Conduct was written to 

be consistent with the requirements imposed by the GPW. Violations of the Code of Conduct 

are not criminally punishable as such, but conduct that violates the Code of Conduct may also 

violate the Uniform Code of Military Justice.

9.39.1.1 Code of Conduct – Article I. 

I am an American, fighting in the forces which guard my country and our way of 

life. I am prepared to give my life in their defense.

9.39.1.2 Code of Conduct – Article II. 

I will never surrender of my own free will. If in command, I will never surrender 

the members of my command while they still have the means to resist.

Under Article II of the Code of Conduct, the responsibility and authority of a commander 

never extends to the surrender of command, even if isolated, cut off, or surrounded, while the 

unit has a reasonable power to resist, break out, or evade to rejoin friendly forces.927 

Under the Uniform Code of Military Justice, a U.S. commander who shamefully 

surrenders to the enemy any command or place that is his or her duty to defend is subject to 

 924 Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).

925 See Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20 

FEDERAL REGISTER 6057 (Aug. 17, 1955), as amended by Executive Order 12017, Amending the Code of Conduct 

for Members of the Armed Forces of the United States, 42 FEDERAL REGISTER 57941 (Nov. 3, 1977), and as 

amended by Executive Order 12633, Amending the Code of Conduct for Members of the Armed Forces of the United 

States, 53 FEDERAL REGISTER 10355 (Mar. 28, 1988).

926 See, e.g., DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.1.1 (Jan. 8, 2001) 

(“Although designed for evasion and prisoner of war (POW) situations, the spirit and intent of the CoC are 

applicable to Service members subjected to other hostile detention, and such Service members should conduct 

themselves consistently in a manner that avoids discrediting themselves and their country.”); Joint Chiefs of Staff 

Memorandum 290-81, Code of Military in Hostage Situations (Aug. 5, 1981) (“a. All U.S. military personnel are 

subject to being taken hostage under circumstances short of war. In such situations, the conduct of military 

personnel will be guided by the Code of Conduct.”).

927 DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶ E2.2.2.1.2 (Jan. 8, 2001) (“The 

responsibility and authority of a commander never extends to the surrender of command, even if isolated, cut off, or 

surrounded, while the unit has a reasonable power to resist, break out, or evade to rejoin friendly forces.”).
662

punishment.928 In addition, any person subject to the Uniform Code of Military Justice who 

compels or attempts to compel a commander of any place, vessel, aircraft, or other military 

property, or of any body of members of the armed forces, to give it up to an enemy or to abandon 

it, or who strikes the colors or flag to an enemy without proper authority, is subject to 

punishment.929

Article II of the Code of Conduct is consistent with the authority of commanders under 

the law of war to conclude capitulation agreements for the surrender of forces under their 

command.930

9.39.1.3 Code of Conduct – Article III. 

If I am captured I will continue to resist by all means available. I will make every 

effort to escape and to aid others to escape. I will accept neither parole nor 

special favors from the enemy.

By limiting the punishment of POWs with respect to an unsuccessful escape, the GPW 

acknowledges that POWs may have a duty to seek to escape, as reflected in Article III of the 

Code of Conduct.931 

Although the GPW contemplates that POWs may accept parole,932 U.S. policy, as 

reflected in Article III of the Code of Conduct, prohibits accepting parole.

9.39.1.4 Code of Conduct – Article IV. 

If I become a prisoner of war, I will keep faith with my fellow prisoners. I will 

give no information [n]or take part in any action which might be harmful to my 

comrades. If I am senior, I will take command. If not, I will obey the lawful 

orders of those appointed over me and will back them up in every way.

Article IV of the Code of Conduct exemplifies the spirit of comradeship that many POWs

have exhibited in past conflicts.933 It reflects a higher standard of conduct than that punishable 

 928 10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— ... (2) 

shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty 

to defend; ... shall be punished by death or such other punishment as a court-martial may direct.”).

929 10 U.S.C. § 900 (“Any person subject to this chapter who compels or attempts to compel the commander of any 

place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an 

enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished by 

death or such other punishment as a court-martial may direct.”).

930 Refer to § 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).

931 Refer to § 9.25 (POW Escapes).

932 Refer to § 9.11.2 (Parole of POWs).

933 For example, The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues 

After The Battle: The Report of the Secretary of Defense’s Advisory Committee on Prisoners of War, 14 (Aug. 

1955) (“Many servicemen exhibited pride in themselves and their units. This was particularly pronounced where 

they had belonged to the same unit for years. They stood by one another like that ‘band of brothers’ inspired by 

Nelson. If a soldier were sick, his fellow soldiers took care of him. They washed his clothes, bathed him, and 
663

under Article 105 of the Uniform Code of Military Justice regarding misconduct towards fellow 

POWs.934 The senior POW in command is not necessarily the POW Representative.935 In POW 

camps containing only enlisted personnel, the POW Representative is elected.936

9.39.1.5 Code of Conduct – Article V. 

When questioned, should I become a prisoner of war, I am required to give name, 

rank, service number and date of birth. I will evade answering further questions 

to the utmost of my ability. I will make no oral or written statements disloyal to 

my country and its allies or harmful to their cause.

Article V of the Code of Conduct reflects the obligations of the POW to provide 

accountability information.937 The Detaining Power may have further obligations to collect 

additional accountability information relating to POWs.938

Article V of the Code of Conduct also underscores one aspect of Article 104 of the

Uniform Code of Military Justice regarding aiding the enemy by specifically forbidding oral or 

written statements disloyal to the United States or harmful to its cause.939

9.39.1.6 Code of Conduct – Article VI. 

I will never forget that I am an American, fighting for freedom, responsible for 

my actions, and dedicated to the principles which made my country free. I will 

trust in my God and in the United States of America.

 

pulled him through. They exhibited true fraternal spirit comradeship, military pride. These soldiers did not let each 

other down. Nor could the Korean Reds win much cooperation from them.”).

934 See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99-100 (Oct. 23, 1962) (“The 

provisions of the Code of Conduct are not as restrictive in their application as in Article 105(1), U.C.M.J. There is 

no requirement that the act be motivated by the desire to secure favorable treatment or that an actual detriment be 

inflicted on the other PWs as a direct result of the act.”).

935 See DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.2.4.1.6 (Jan. 8, 2001) 

(“U.S. policy on POW camp organization requires that the senior military POW assume command. The Geneva 

Convention on POWs (reference (g)) provides additional guidance to the effect that in POW camps containing only 

enlisted personnel, a prisoners’ representative shall be elected. POWs should understand that such an elected 

representative is regarded by U.S. policy as only a spokesperson for the senior POW. The prisoners’ representative 

does not have command, unless the POWs elect the senior POW to be the prisoners’ representative. The senior 

POW shall assume and retain actual command, covertly if necessary.”).

936 Refer to § 9.24.2.3 (Places Without Officer POWs).

937 Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

938 Refer to § 9.31.1.1 (Difference Between the Accountability Information the Detaining Power Must Seek and the 

Information the POW Must Provide).

939 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99 (Oct. 23, 1962) (“The Uniform Code 

continues to apply to an American serviceman after his capture by the enemy. A prisoner of war is often in a better 

position then before capture to ‘aid the enemy.’ The Code of Conduct underscores one aspect of Article 104 

U.C.M.J. by specifically forbidding oral or written statements disloyal to the U.S. or harmful to its cause. Such 

statements may materially aid the enemy in its propaganda efforts.”).
664

9.39.2 Background on the U.S. Code of Conduct. Although misconduct by POWs was 

not unique to the Korean War, the Code of Conduct was introduced after public awareness of 

instances of misconduct by U.S. servicemembers during their captivity as POWs during the 

Korean War. The Secretary of Defense established a committee that recommended that a unified 

and purposeful standard of conduct for Americans who become POWs be promulgated.

940

President Dwight D. Eisenhower promulgated the Code of Conduct on August 17, 1955.941 A 

review of the Code of Conduct after the return of U.S. POWs from the Vietnam War confirmed 

the value of the Code of Conduct.942

 940 The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues After The 

Battle: The Report of the Secretary of Defense's Advisory Committee on Prisoners of War, vii (Aug. 1955) (“[T]he 

Committee unanimously agreed that Americans require a unified and purposeful standard of conduct for our 

prisoners of war backed up by a first class training program. This position is also wholeheartedly supported by the 

concensus [sic] of opinion of all those who consulted with the Committee. From no one did we receive stronger 

recommendations on this point than from the former American prisoners of war in Korea-officers and enlisted 

men.”).

941 Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20 FEDERAL 

REGISTER 163 (Aug. 20, 1955).

942 DoD, Report of the Defense Review Committee for the Code of Conduct 6-7 (1976) (“There was consistent 

agreement throughout Committee proceedings that the Code of Conduct has served as a useful guide to the 

American Serviceman through a wide spectrum of circumstances during normal service, on the battlefield and in 

captivity. It represents the high standard of behavior which is expected of the individual and which he may expect 

of all other members of the Armed Forces. There was never any question that the Code is needed, and some POW 

returnees attributed their very survival to the inspiration provided by the Code of Conduct.”).
665

X – Civilians in the Hands of a Party to the Conflict

Chapter Contents

10.1 Introduction

10.2 National-Level GC Implementation Measures

10.3 Protected Person Status

10.4 Derogation for Security Reasons

10.5 Humane Treatment and Other Basic Protections for Protected Persons

10.6 Measures of Control and Security

10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory

10.8 Expulsion From Areas Within a Belligerent’s Home Territory and Departure 

and Transfers of Protected Persons From a Belligerent’s Home Territory

10.9 Internment

10.10 Segregation of Internees

10.11 Safety, Hygiene, and Living Conditions in Places of Internment

10.12 Canteens for Internees

10.13 Food, Water, Tobacco, and Clothing for Internees

10.14 Medical Attention for Internees

10.15 Religious Exercise by Internees

10.16 Intellectual, Physical, and Recreational Activities

10.17 Internee Labor

10.18 Internees’ Articles of Personal Use

10.19 Financial Resources of Internees

10.20 Administration of Places of Internment and Discipline

10.21 Internee Petitions, Complaints, and Reports About Conditions of 

Internment

10.22 Internee Committees

10.23 Internee Correspondence and Relief Shipments

10.24 Private Legal Matters of Internees

10.25 Internees and Visits of Family and Friends

10.26 Internee Escapes

10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions 

Regarding Internees

10.28 Disciplinary Proceedings and Punishment

10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or 

Internees in a Belligerent’s Home Territory

10.30 Transfers of Internees From the Place of Internment

10.31 National Accounting for Protected Persons in Its Power

10.32 Role of the Protecting Power in the GC

10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief 

Organizations

10.34 Death of Internees

10.35 Release, Return, Repatriation of Internees After the Close of Hostilities
666

10.1 INTRODUCTION

This Chapter addresses protection of civilians in the hands of a party to an international 

armed conflict. In particular, the Chapter addresses civilians who are interned in the home 

territory of a belligerent or occupied territory.

Rules for the protection of civilians in the conduct of hostilities are addressed in Chapter 

V. Rules for the protection of civilians that are specific to occupied territory are addressed in 

Chapter XI, while rules that apply to both civilians in occupied territory and civilians in a 

belligerent’s home territory are addressed in this Chapter.

10.1.1 Interpretation and Application of the GC. The GC underlies most of the 

international law rules applicable to the United States for the treatment of civilians in the hands 

of a party to the conflict. 

As with the GPW, the GC’s provisions should be interpreted in light of the principles that 

underlie the treatment of civilians and, in particular, in light of the goal of advancing the humane 

treatment of protected persons.

1

 The subsequent practice of States in applying the GC could also 

assist in interpreting its provisions because States’ decades of experience in applying the GC 

may be very helpful in understanding its requirements.

2

10.1.1.1 GC – Notes on Terminology. In the GC, protected persons does not 

simply refer to persons who are “civilians” in the sense of not being members of the military; 

rather, protected persons refers to persons who are protected by the GC in connection with 

international armed conflict or occupation.3

In the GC, internees refers to protected persons who are interned.

In the GC, the Detaining Power refers to the State that holds the internee.

In the GC, the Protecting Power refers to a neutral State that helps implement the GC.4

10.1.1.2 Special Agreements Under the GC. Under the GC, States may conclude 

a variety of special agreements during international armed conflict to facilitate the protection of 

civilians. The GC specifically provides for agreements:

• to entrust to an effective and impartial organization the duties of the Protecting Powers;5

• to establish and recognize civilian hospital zones and localities;6

 1 Refer to § 9.1.2 (Interpretation and Application of the GPW).

2 Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

3 Refer to § 10.3.1 (Protected Person – Notes on Terminology).

4 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

5 Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties 

Under the 1949 Geneva Conventions).
667

• to establish and determine the conditions of neutralized zones;7

• for the removal of wounded, sick, infirm, and aged persons, children, and maternity 

cases, from besieged or encircled areas or for the passage of medical and religious 

personnel on their way to such areas;8

• to settle practical details regarding the departure of protected persons from a belligerent’s 

home territory;

9

• to establish the conditions for the sending of individual parcels and collective relief 

shipments;10

• for the release, repatriation, the return to places of residence or the accommodation in a 

neutral country of certain classes of internees, in particular children, pregnant women and 

mothers with infants and young children, wounded and sick, and internees who have been 

detained for a long time;11 and

• on the procedure, or to select an umpire who will decide the procedure, to be followed for 

an inquiry concerning any alleged violation of the GC.

12

In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 

109, 132, 133, and 149 of the GC, Parties to the GC may conclude other special agreements for 

all matters concerning which they may deem it suitable to make separate provision.13 No special 

agreement shall adversely affect the situation of protected persons, as defined by the GC, nor 

restrict the rights that it confers upon them.14

Protected persons shall continue to have the benefit of such agreements as long as the GC 

is applicable to them, except where express provisions to the contrary are contained in these 

agreements or in subsequent agreements, or where more favorable measures have been taken 

 6 Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).

7 Refer to § 5.14.3.3 (Neutralized Zones).

8 Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular 

Personnel, the Wounded and Sick, and Medical Personnel).

9 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).

10 Refer to § 10.23.3.3 (Special Agreements Concerning Relief Shipments).

11 Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain Classes 

of Internees).

12 Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).

13 GC art. 7 (“In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133 

and 149, the High Contracting Parties may conclude other special agreements for all matters concerning which they 

may deem it suitable to make separate provision.”).

14 GC art. 7 (“No special agreement shall adversely affect the situation of protected persons, as defined by the 

present Convention, nor restrict the rights which it confers upon them.”).
668

with regard to them by one or other of the parties to the conflict.15

10.1.2 DoD Policies and Regulations for the Treatment of Internees. DoD policies and 

regulations regarding the treatment of internees provide authoritative guidance for DoD 

personnel and fill an important role in implementing the complex requirements of the GC.16 

Practitioners are advised to consult all applicable policies and regulations, as these, in many 

cases, exceed the requirements of the GC, U.S. statutes, and Executive Orders.

10.2 NATIONAL-LEVEL GC IMPLEMENTATION MEASURES

The GC requires a number of measures at the national level to facilitate protection for 

protected persons. 

10.2.1 Appointment or Establishment of Entities. The GC provides for certain bodies or 

entities to be appointed or established.

10.2.1.1 Appointment of a Protecting Power. The GC contemplates that a 

Protecting Power has been appointed to assist in the implementation of the GC.

17 A Protecting 

Power has a variety of roles under the GC related to the protection of protected persons.

18

10.2.1.2 Establishment of a National Protected Person Information Bureau. A 

National Protected Person Information Bureau shall be established by each of the parties to the 

conflict.

19 

10.2.1.3 Establishment of a Central Information Agency for Protected Persons. A 

Central Information Agency for protected persons shall be established in a neutral country.20

10.2.2 Notification of Certain Laws or Policies Between Belligerents. Parties to a 

conflict must notify opposing belligerents or the Protecting Power of certain matters relating to 

protected persons.

10.2.2.1 Location and Marking of Places of Internment Camps. The Detaining 

Power shall provide the Powers concerned useful information regarding the geographic location 

of places of internment, and agreements on their markings may be reached.

21

 15 GC art. 7 (“Protected persons shall continue to have the benefit of such agreements as long as the Convention is 

applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent 

agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties 

to the conflict.”).

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

17 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

18 Refer to § 10.32 (Role of the Protecting Power in the GC).

19 Refer to § 10.31.2 (National Protected Person Information Bureau).

20 Refer to § 10.31.3 (Central Information Agency for Protected Persons).

21 Refer to § 10.11.1.2 (Sharing Information on the Location of Places of Internment); § 10.11.1.3 (Marking of 

Internment Camps).
669

10.2.2.2 Notification of Measures Taken for Implementing GC Provisions That 

Address Relations Between Internees and the Exterior. Immediately upon interning protected 

persons, the Detaining Power shall inform them, the Power to which they owe allegiance, and 

their Protecting Power of the measures taken for executing the provisions of Chapter VIII of 

Section IV of the GC, which address the relations between internees and the exterior (e.g., 

correspondence, relief shipments, family visits).

22 The Detaining Power shall likewise inform 

the Parties concerned of any subsequent modifications of such measures.23

10.3 PROTECTED PERSON STATUS

In general, the GC uses the concept of protected person to define the individuals who are 

entitled to receive its protections. Principally, protected persons include persons of enemy 

nationality living in the territory of a belligerent State and the inhabitants of occupied 

territories.24 Even if persons are not protected persons under the GC, other rules may be 

applicable to them. For example, certain baseline rules apply to the treatment of all detainees, 

including those who are not protected persons or POWs.25

10.3.1 Protected Person – Notes on Terminology. Protected persons is used in the GC as 

a term to refer to persons who are protected by the GC in connection with international armed 

conflict or occupation.

Protected persons is often understood as a term that is specific to the GC. In a few 

places, however, the GPW, the GWS, and the GWS-Sea also refer to “protected persons” or 

“persons protected.”26 In such cases, “protected persons” and “persons protected” refer to 

persons protected by that respective convention, as opposed to protected persons for purposes of

the GC. 

Although the GC addresses the protection of civilians, protected persons may include 

certain unprivileged belligerents. Certain rights and privileges that protected persons who are 

 22 GC art. 105 (“Immediately upon interning protected persons, the Detaining Powers shall inform them, the Power 

to which they owe allegiance and their Protecting Power of the measures taken for executing the provisions of the 

present Chapter.”).

23 GC art. 105 (“The Detaining Powers shall likewise inform the Parties concerned of any subsequent modifications 

of such measures.”).

24 GC COMMENTARY 45 (“When work was begun on the preparation of the texts, it became clear—as early as the 

time of the Tokyo Draft—that there were two main classes of civilian to whom protection against arbitrary action on 

the part of the enemy was essential in time of war—on the one hand, persons of enemy nationality living in the 

territory of a belligerent State, and on the other, the inhabitants of occupied territories. The idea that the Convention 

should cover these two categories was accepted from the first and has never really been disputed. Any discussions 

which have taken place on the subject have been concerned with points of detail which we shall consider later. This 

Article [4 of the GC] is, in a sense, the key to the Convention; for it defines the people to whom it refers.”).

25 Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

26 See, e.g., GPW art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly in 

cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of 

the present Convention, the Protecting Powers shall lend their good offices with a view to settling the 

disagreement.”).
670

unprivileged belligerents receive, however, are subject to derogation for security reasons.

27

10.3.2 Persons Who Receive Protected Person Status Under the GC. Subject to certain 

exceptions addressed below, persons protected by the GC are those who, at a given moment and 

in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a 

party to the conflict or Occupying Power of which they are not nationals.28

Because the definition of protected person is framed negatively in terms of persons who 

are in the hands of a State of which they are not nationals, the definition of protected person 

allows for the possibility that persons without any nationality may be protected persons.

29

10.3.2.1 “Find Themselves”. The persons must “find themselves” in the hands of 

a party to the conflict or Occupying Power, which suggests an element of happenstance or 

coincidence.

30 For example, nationals of a neutral or non-belligerent State who travel to an 

occupied State to fight the Occupying Power cannot be said to have “found themselves” within 

that occupied territory within the meaning of Article 4 of the GC.

10.3.2.2 In Occupied Territory or the Home Territory of a Party to the Conflict. 

To be entitled to the protections provided under the GC for “protected persons,” a person must 

be located in either (1) occupied territory or (2) the home territory of a party to the conflict.

31 

The references in the GC that limit the scope of protections for protected persons to those “in the 

territory of a Party to the conflict” refer to the home territory of the party to the conflict in whose 

 27 Refer to § 10.4 (Derogation for Security Reasons).

28 GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, 

find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of 

which they are not nationals.”).

29 GC COMMENTARY 47 (“It will be observed that owing to its negative form the definition covers persons without 

any nationality. The Rapporteur to Committee III pointed out that it thus complied with the recommendation made 

to the Diplomatic Conference by the representative of the International Refugee Organization. In the actual course 

of the discussions, however, certain speakers observed that the term ‘nationals’ (ressortissants, in the French 

version) did not cover all cases, in particular cases where men and women had fled from their homeland and no 

longer considered themselves, or were no longer considered, to be nationals of that country. Such cases exist, it is 

true, but it will be for the Power in whose hands they are to decide whether the persons concerned should or should 

not be regarded as citizens of the country from which they have fled. The problem presents so many varied aspects 

that it was difficult to deal with it fully in the Convention.”).

30 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth 

Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 51 (“Alternatively, the 

phrase “find themselves” [in Article 4 of the GC] can be read more narrowly to suggest an element of happenstance 

or coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons in 

question in the hands of an occupying power.”).

31 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the 

Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“To receive the 

protections provided for ‘protected persons,’ one must be located in either (1) ‘occupied territory,’ or (2) the 

‘territory of a party to the conflict.’ This limitation does not emerge from article 4 itself, but rather from other 

provisions in GC.”); GC COMMENTARY 46 (“Nevertheless, disregarding points of detail, it will be seen that there are 

two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the 

conflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power). The 

other distinctions and, exceptions extend or restrict these limits, but not to any appreciable extent.”).
671

hands the protected person finds himself or herself.32 For example, Section II of Part III of the 

GC, which applies to “Aliens in the Territory of a Party to the Conflict,” addresses the protection 

of aliens present on the home territory of a party to the conflict in relation to that State.

10.3.2.3 Not Protected by the GWS, GWS-Sea, or the GPW. Persons protected by 

the GWS, the GWS-Sea, or the GPW shall not be considered as protected persons within the 

meaning of the GC.33 For example, persons who receive POW status under the GPW are not 

considered as protected persons within the meaning of the GC.34

10.3.2.4 Unprivileged Belligerents Not Per Se Excluded From Protected Person 

Status. The fact that a person has engaged in hostile or belligerent conduct does not per se

exclude that person from protected person status under the GC.35 

Certain rights and privileges of the GC that a protected person who has engaged in such 

conduct would otherwise receive are, however, subject to derogation for security reasons.

36

10.3.3 Categories of Nationals Specifically Excluded From the Definition of Protected 

Person Under the GC. As discussed in this subsection, the GC specifically excludes certain 

 32 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth 

Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“The meaning of the 

phrase ‘territory of a Party to the conflict,’ considered in isolation, is not self-evident. At first glance, one might 

think that the phrase includes occupied territory, because the occupied power (to whom the territory belongs) is a 

party to the conflict. But in the context of the entire Convention, the phrase clearly refers to the home territory of 

the party to the conflict in whose hands the ‘protected person’ finds himself. This is evident from several provisions 

in GC4.”).

33 GC art. 4 (“Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded 

and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the 

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the 

Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as 

protected persons within the meaning of the present Convention.”).

34 Refer to § 9.3.2 (Persons Entitled to POW Status).

35 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the 

Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 48 (“GC4’s full 

title—‘Geneva Convention Relative to the Protection of Civilian Persons in Time of War,’ (emphasis added)—

suggests that ‘[t]he main object of the Convention is to protect a strictly defined category of civilians.’ 4 Pictet, 

Commentary at 10 (emphasis added). Consistent with this title, article 4(4) of GC expressly excludes lawful 

combatants who enjoy POW status from ‘protected person’ status. These factors, combined with the fact that 

unlawful combatants generally receive less favorable treatment than lawful combatants under the Geneva 

Convention system, see, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, 

Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

at 1-7 (Feb. 7, 2002) (concluding that GPW withholds protections from persons who engage in hostilities but fail to 

satisfy criteria for lawful combatancy), might lead one to assume that unlawful combatants are categorically 

excluded from ‘protected person’ status under GC. GC’s text, however, contemplates that persons who ‘find 

themselves’ in occupied territory within the meaning of article 4 may engage in at least some forms of unlawful 

belligerency without forfeiting all of the benefits of ‘protected person’ status.”); 1956 FM 27-10 (Change No. 1 

1976) ¶247b (“Subject to qualifications set forth in paragraph 248 [relating to derogations], those protected by GC 

also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as 

prisoners of war.”).

36 Refer to § 10.4 (Derogation for Security Reasons).
672

classes of persons from the definition of protected person.

37 

The provisions of Part II of the GC, which address the general protection of populations 

against certain consequences of war, are, however, wider in application, as defined in Article 13 

of the GC.38 These provisions cover the whole of the populations in conflict without any adverse 

distinction based, in particular, on race, nationality, religion, or political opinion, and are 

intended to alleviate the sufferings caused by war.39 Thus, persons excluded by reason of their 

nationality from the definition of protected person may nonetheless receive the protections of 

Part II of the GC.

10.3.3.1 A State’s Own Nationals. In general, a State’s own nationals who are in 

its hands are not protected persons under the GC.

40 This exclusion from the definition of 

“protected person” in the GC is consistent with a traditional principle of international law—the 

GC “does not interfere in a State’s relations with its own nationals.”41 However, the GC does 

limit the arrest, prosecution, conviction, or deportation of nationals of any Occupying Power

who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.42

10.3.3.2 Nationals of a State That Is Not Bound by the GC. Nationals of a State 

that is not bound by the GC are not protected by it.43 This provision of the GC reflects a legal 

principle underlying the GC: a State must accept the burdens of the GC in order to receive its 

benefits.44

 37 Compare § 4.4.4 (Nationality and Combatant Status).

38 See GC art. 4 (“The provisions of Part II are, however, wider in application, as defined in Article 13.”).

39 GC art. 13 (“The provisions of Part II cover the whole of the populations of the countries in conflict, without any 

adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to 

alleviate the sufferings caused by war.”).

40 GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, 

find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of 

which they are not nationals.”) (emphasis added).

41 GC COMMENTARY 46 (“The definition has been put in a negative form; as it is intended to cover anyone who is 

not a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains 

faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own 

nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the 

Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This is 

a very special case, based on the position such people have taken up with regard to their own country.”).

42 Refer to § 11.11.7 (Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts).

43 GC art. 4 (“Nationals of a State which is not bound by the Convention are not protected by it.”).

44 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth 

Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 54 (“The benefits-burdens 

principle also finds expression in article 4(2), which provides: ‘Nationals of a State which is not bound by the 

Convention are not protected by it.’ The ICRC’s Official Commentary states that article 4(2)’s exception to the 

definition of “protected person” in article 4(1) is a ‘truism’ and an ‘unnecessary addition’ that follows naturally from 

article 2(1) even in the absence of article 4(2). See 4 Pictet, Commentary at 48. Whether or not this is true, article 

4(2) makes this much clear: persons in occupied territory, including those who commit hostile acts there, are not 

‘protected persons’ under GC if the State that represents them has not formally accepted the Convention’s 

burdens.”).
673

10.3.3.3 Nationals of a Neutral State or Co-Belligerent State While Normal 

Diplomatic Representation Exists. Nationals of a neutral State who find themselves in the 

territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as 

protected persons while the State of which they are nationals has normal diplomatic 

representation in the State in whose hands they are.45

These persons were omitted from the GC’s definition of “protected person” in order to 

avoid creating complications or inconsistencies in procedures should both the GC and the law 

applicable to normal diplomatic representation apply.

46 

Nationals of a neutral State in occupied territory, however, are regarded as protected 

persons under the GC.47

10.3.4 Commencement and Duration of Protected Person Status. As with the general 

application of the GC, protected persons shall receive their protections from the outset of any 

conflict or occupation mentioned in Article 2 of the GC.48 In general, the application of 

protected person status also ceases when the GC ceases to apply. 

In the territory of parties to the conflict, the application of the GC shall cease on the 

general close of military operations.49 In most cases, the general close of military operations will 

be the final end of all fighting between all those concerned.50

 45 GC art. 4 (“Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of 

a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has 

normal diplomatic representation in the State in whose hands they are.”).

46 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 814 (“At the first reading several 

Delegates argued that the Convention should merely regulate the relations between a belligerent State and the 

nationals of an enemy State, and that it should not include relations between the State and nationals of a neutral 

country. Other delegates, however, argued that stateless persons should be borne in mind and that, moreover, there 

might be, in the territory of a belligerent State, nationals of foreign States who did not benefit by any diplomatic 

representation either because their home country had broken off diplomatic relations with the country where they 

were or because they had themselves broken away from their country of origin. Our Committee gave the most 

careful consideration to this problem and the majority recognized the weight of the reasons put forward by States 

sheltering a large number of aliens: the superposition of normal diplomatic representation and of the protection 

ensured by the Convention, would lead to complications and would be indefensible from the point of view of 

consistency of procedure.”).

47 Refer to § 15.6.4.1 (Protected Person Status of Neutral Persons in Occupied Territory).

48 GC art. 6 (“The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 

2.”).

49 GC art. 6 (“In the territory of Parties to the conflict, the application of the present Convention shall cease on the 

general close of military operations.”).

50 GC COMMENTARY 62 (“What should be understood by the words ‘general close of military operations’? In the 

opinion of the Rapporteur of Committee III, the general close of military operations was ‘when the last shot has 

been fired’. There are, however, a certain number of other factors to be taken into account. When the struggle takes 

place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an 

armistice, a capitulation or simply on debellatio. On the other hand, when there are several States on one or both of 

the sides, the question is harder to settle. It must be agreed that in most cases the general close of military 

operations will be the final end of all fighting between all those concerned.”).
674

In the case of occupied territory, the application of the GC shall cease one year after the 

general close of military operations; however, the Occupying Power shall be bound, for the 

duration of the occupation, to the extent that such Power exercises the functions of government 

in such territory, by the provisions of the following Articles of the GC: 1 through 12, 27, 29 

through 34, 47, 49, 51, 52, 53, 59, 61 through 77, and 143.51

Protected persons whose release, repatriation, or re-establishment may take place after 

such dates shall meanwhile continue to benefit from the protection of the GC.

52 “Reestablishment” refers to protected persons who cannot be repatriated because, for example, they 

would be liable to persecution in their own country or because their homes have been 

destroyed.53

10.3.5 State Responsibility for Its Agents’ Treatment of Protected Persons. A party to the 

conflict is responsible for the treatment accorded to protected persons by its agents, irrespective 

of any individual responsibility that may be incurred.

54

10.3.6 Non-Renunciation of Rights Secured by the GC. Protected persons may in no 

circumstances renounce in part or in entirety the rights secured to them by the GC or by special 

agreements, if any, referred to in Article 7 of the GC.

55 A similar provision of the GPW applies 

to POWs, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick, 

shipwrecked, and military medical and religious personnel.

56

10.4 DEROGATION FOR SECURITY REASONS

Certain rights and privileges of the GC that protected persons receive are subject to 

derogation for security reasons.

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

52 GC art. 6 (“Protected persons whose release, repatriation or re-establishment may take place after such dates shall 

meanwhile continue to benefit by the present Convention.”).

53 1956 FM 27-10 (Change No. 1 1976) ¶249b (“Reestablishment of Protected Persons. The word 

‘reestablishment,’ as used in a, refers to protected persons who cannot be repatriated because, for example, they 

would be liable to persecution in their own country, or because their homes have been destroyed.”). See also GC

COMMENTARY 64 (“The time when the Convention as a whole ceases to apply, both in the territory of the Parties to 

the conflict and in occupied territory, may quite conceivably come before the protected persons have been able to 

resume a normal existence, especially if they have to be repatriated or assisted to resettle. ... The word 

‘resettlement’ is used in regard to protected persons who cannot be repatriated for one reason or another and are not 

allowed to settle permanently in the country where they are living. In such cases another country must be found 

where they will be received and allowed to settle. It was in particular the experience gained at the end of the Second 

World War which led to the adoption of this clause.”).

54 GC art. 29 (“The Party to the conflict in whose hands protected persons may be, is responsible for the treatment 

accorded to them by its agents, irrespective of any individual responsibility which may be incurred.”). Refer to

§ 18.9.1 (State Responsibility for Violations of the Law of War by Its Armed Forces).

55 GC art. 8 (“Protected persons may in no circumstances renounce in part or in entirety the rights secured to them 

by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”). 

Refer to § 10.1.1.2 (Special Agreements Under the GC).

56 Refer to § 7.2.2 (Non-Renunciation of Rights Secured by the GWS or GWS-Sea); § 9.3.7 (Non-Renunciation of 

Rights Secured by the GPW).
675

10.4.1 Derogation in Home Territory. Where, in the territory of a party to the conflict, 

the latter is satisfied that an individual protected person is definitely suspected of or engaged in 

activities hostile to the security of the State, such individual person shall not be entitled to claim 

such rights and privileges under the GC as would, if exercised in the favor of such individual 

person, be prejudicial to the security of such State.57

10.4.2 Derogation in Occupied Territory. Where in occupied territory an individual 

protected person is detained as a spy or saboteur, or as a person under definite suspicion of 

activity hostile to the security of the Occupying Power, such person shall, in those cases where 

absolute military security so requires, be regarded as having forfeited rights of communication 

under the GC.

58 For example, it may be necessary to keep the fact of detention secret 

temporarily so as not to compromise an ongoing operation against a conspiracy or network of 

spies.

59

The derogation provisions relating to the home territory of a belligerent are not applicable 

in occupied territory, even though the occupied territory may arguably be characterized as the 

home territory of the opposing belligerent (i.e., the country being occupied).

10.4.3 Derogation in Other Areas. To the extent that the rights and privileges of 

protected persons afforded by the GC are applied outside the home territory of a party to the 

conflict or outside occupied territory, it would be reasonable for such rights and privileges 

similarly to be subject to derogation. Thus, if a party to the conflict is satisfied that an individual 

protected person is definitely suspected of or engaged in activities hostile to the security of the 

State in other contexts, such individual person similarly could be deemed not entitled to claim 

such rights and privileges under the GC as would, if exercised in favor of such individual person, 

be prejudicial to the security of such State.60

10.4.4 Limits on Derogation. In each case, such persons shall nevertheless be treated 

with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial 

prescribed by the GC.

61 No derogation from the provision of humane treatment and the rights of 

 57 GC art. 5 (“Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected 

person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person 

shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the 

favour of such individual person, be prejudicial to the security of such State.”).

58 GC art. 5 (“Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a 

person under definite suspicion of activity hostile to the security of the Occupying Power, such person, shall, in 

those cases where absolute military security so requires, be regarded as having forfeited rights of communication 

under the present Convention.”).

59 GC COMMENTARY 53 (“There may of course be occasions when it is desirable to keep the fact of an arrest secret 

in the hope of capturing a whole organization or spy ring.”).

60 1956 FM 27-10 (Change No. 1 1976) ¶248b (“Where, in territories other than those mentioned in a above, a Party 

to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities 

hostile to the security of the State, such individual person is similarly not entitled to claim such rights and privileges 

under GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.”).

61 GC art. 5 (“In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be 

deprived of the rights of fair and regular trial prescribed by the present Convention.”).
676

fair and regular trial is permitted.62

Such persons shall also be granted the full rights and privileges of a protected person 

under the GC at the earliest date consistent with the security of the State or Occupying Power, as 

the case may be.63

10.5 HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED PERSONS

Protected persons are entitled, in all circumstances, to respect for their persons, 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 of violence, and against insults and public curiosity.64 

10.5.1 Protection Against Violence or Threats. Protected persons must at all times be 

protected, particularly against acts or threats of violence. For example, the murder of protected 

persons is forbidden.

Protected persons should be protected not only against unlawful acts by the agents of the 

Detaining Power, but also against violence from other protected persons, such as during 

internment or, in the case of protected persons in a belligerent’s home territory, violence from 

members of the civilian population. 

10.5.1.1 Measures of Physical Suffering, Extermination, or Other Brutality. The 

Parties to the GC specifically agree that each of them is prohibited from taking any measure of 

such a character as to cause the physical suffering or extermination of protected persons in their 

hands.65 This prohibition applies not only to murder, torture, corporal punishment, mutilation,

and medical or scientific experiments not necessitated by the medical treatment of a protected 

person, but also to any other measures of brutality whether applied by civilian or military 

 62 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons); § 10.29 (Judicial 

Proceedings Regarding Protected Persons in Occupied Territory or Internees).

63 GC art. 5 (“They shall also be granted the full rights and privileges of a protected person under the present 

Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.”).

64 GC art. 27 (“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, 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.”). See also GC COMMENTARY 199-200 (“Article 27, placed at the head of Part III, occupies a 

key position among the Articles of the Convention. It is the basis of the Convention, proclaiming as it does the 

principles on which the whole of ‘Geneva Law’ is founded. It proclaims the principle of respect for the human 

person and the inviolable character of the basic rights of individual men and women. The statement of these 

principles in an international convention gives them the character of legal obligations and marks an essential stage in 

the history of international law -- in particular international humanitarian law, which is concerned above all with 

man as man.”).

65 GC art. 32 (“The High Contracting Parties specifically agree that each of them is prohibited from taking any 

measure of such a character as to cause the physical suffering or extermination of protected persons in their 

hands.”).
677

agents.66

10.5.1.2 Protection for Women Against Rape or Other Indecent Assault. Women 

shall be especially protected against any attack on their honor, in particular against rape, 

enforced prostitution, or any form of indecent assault.67 

Although the GC provides special protection for women against these offenses, all 

individuals, including children and men, should also be protected against these offenses. 

Indecent assault is generally referred to today as sexual assault.

10.5.1.3 Presence May Not Be Used to Render Places Immune From Military 

Operations. The presence of a protected person may not be used to render certain points or areas 

immune from military operations.68

10.5.1.4 Taking of Hostages. The taking of hostages is prohibited.69

10.5.2 Protection Against Insults and Public Curiosity. Internees must at all times be 

protected against insults and public curiosity. For example, displaying internees in a humiliating 

fashion on television or on the internet would be prohibited.70 For this reason and others, DoD 

policy has prohibited the taking of photographs of detainees except for authorized purposes.71

10.5.3 Other Prohibited Measures. 

10.5.3.1 No Physical or Moral Coercion. No physical or moral coercion shall be 

exercised against protected persons, in particular to obtain information from them or from third 

parties.72 For example, protected persons in occupied territory may not be compelled to provide 

information about their State’s military defenses.73 Other requirements, including the 

requirements of U.S. law and policy, would apply to the interrogation of protected persons.74

The GC’s prohibition against the use of coercion does not apply to those measures 

 66 GC art. 32 (“This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or 

scientific experiments not necessitated by the medical treatment of a protected person, but also to any other 

measures of brutality whether applied by civilian or military agents.”).

67 GC art. 27 (“Women shall be especially protected against any attack on their honour, in particular against rape, 

enforced prostitution, or any form of indecent assault.”).

68 GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune from 

military operations.”).

69 GC art. 34 (“The taking of hostages is prohibited.”).

70 Compare § 9.5.3 (Protection Against Insults and Public Curiosity).

71 Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).

72 GC art. 31 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain 

information from them or from third parties.”).

73 Refer to § 11.20.1.4 (Prohibition Against Forcing Inhabitants to Provide Information About the Opposing Army or 

Its Means of Defense).

74 Refer to § 10.6.2 (Interrogation of Protected Persons).
678

implicitly or explicitly authorized by the GC (such as the use of force to prevent one internee 

from harming another) or other lawful measures that are otherwise consistent with the GC (such 

as the use of force to prevent internees from escaping internment).

75

10.5.3.2 Collective Penalties and Measures of Intimidation or Terrorism. No 

protected person may be punished for an offense he or she has not personally committed.

76 

Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.77

Collective penalties are prohibited as a general matter.

78

10.5.3.3 Pillage Against Protected Persons. Pillage is prohibited.

79 In addition to 

this specific prohibition in the GC, pillage is prohibited as a general matter.80

10.5.4 Reprisals Against Protected Persons and Their Property. Reprisals against 

protected persons and their property are prohibited.

81

10.5.5 No Adverse Distinction Based on Race, Religion, or Political Opinion. Without 

prejudice to the provisions of the GC relating to their state of health, age, and sex, all protected 

persons shall be treated with the same consideration by the party to the conflict in whose power 

they are, without any adverse distinction based, in particular, on race, religion, or political 

opinion.82 

Distinctions are permitted, and in some cases required, for humanitarian reasons.83 For 

 75 GC COMMENTARY 220 (“The general nature of the new provision marks an important step forward in 

international law. For its exact significance to be appreciated, it should not be considered in isolation but rather in 

the light of the other provisions of the Convention. It will then be seen that there is no question of absolute 

prohibition, as might be thought at first sight. The prohibition only applies in so far as the other provisions of the 

Convention do not implicitly or explicitly authorize a resort to coercion. Thus, Article 31 is subject to the unspoken 

reservation that force is permitted whenever it is necessary to use it in the application of measures taken under the 

Convention. This power is embodied and expressed particularly in penal legislation and in the control and security 

regulations enacted by the belligerents and to which protected persons are subject.”).

76 GC art. 33 (“No protected person may be punished for an offence he or she has not personally committed.”).

77 GC art. 33 (“Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”). 

Consider AP I art. 51(2) (“Acts or threats of violence the primary purpose of which is to spread terror among the 

civilian population are prohibited.”).

78 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

79 GC art. 33 (“Pillage is prohibited.”).

80 Refer to § 5.17.4 (Pillage Prohibited).

81 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

82 GC art. 27 (“Without prejudice to the provisions relating to their state of health, age and sex, all protected persons 

shall be treated with the same consideration by the Party to the conflict in whose power they are, without any 

adverse distinction based, in particular, on race, religion or political opinion.”).

83 GC COMMENTARY 426 (“All discrimination contrary to Article 27 is prohibited. On the other hand implicit 

authority is given for the discrimination permitted by that Article for humanitarian reasons, in order to favour classes 

of people who are in particular need of help (the infirm, the sick, pregnant women, etc.). All this is an example of 

the application of the principle of non-discrimination, as understood in humanitarian law--that is to say the rule 
679

example, the GC provides for special treatment for children during internment.

84 

Distinction based on religion, political opinion, or other similar criteria may also be made 

so long as it is not adverse and it is made to advance legitimate interests, such as maintaining 

order in a place of internment.

85

10.5.6 Facility for Applying to the Protecting Powers and Assistance Organizations Such 

as the ICRC. Protected persons shall have every facility for making application to the Protecting 

Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the 

country where they may be, as well as to any organization that might assist them.86 

These several organizations shall be granted all facilities for that purpose by the 

authorities, within the bounds set by military or security considerations.87

Apart from the visits of the delegates of the Protecting Powers and of the ICRC, provided 

for by Article 143 of the GC, the Detaining or Occupying Powers shall facilitate as much as 

possible visits to protected persons by the representatives of other organizations whose object is 

to give spiritual aid or material relief to such persons.88

10.6 MEASURES OF CONTROL AND SECURITY

The parties to the conflict may take such measures of control and security in regard to 

protected persons as may be necessary as a result of the war.89 For example, in a belligerent’s 

 

which forbids all differentiation based on race, political opinions, religion or social class, but at the same time 

demands that the different degrees of suffering should be alleviated by different degrees of assistance.”).

84 Refer to § 4.20.4 (Protection for Children in the Context of Internment Under the GC).

85 Compare § 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief).

86 GC art. 30 (“Protected persons shall have every facility for making application to the Protecting Powers, the 

International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the 

country where they may be, as well as to any organization that might assist them.”).

87 GC art. 30 (“These several organizations shall be granted all facilities for that purpose by the authorities, within 

the bounds set by military or security considerations.”). See also GC COMMENTARY 218 (“The Convention requires 

the Parties to the conflict to grant all facilities to the Protecting Powers and relief organizations. That means that it 

will not be enough merely to authorize them to carry out their work; their task must be facilitated and promoted. It 

is the duty of the authorities to take all necessary steps to allow approved organizations to take rapid and effective 

action wherever they are asked to give assistance. Among examples of such measures can be mentioned the 

provision of facilities for delegates to move about and carry on correspondence, to have free access to all places 

where protected persons are living, transport facilities and facilities for distributing relief, etc. The obligation to 

facilitate this work is limited however by military or security considerations, as stated in the reservation at the end of 

the paragraph. It is essential, however, that the belligerents, who will be sole judges o [sic] the validity of the 

reasons put forward, should show moderation in the use they make of this reservation and only apply it in cases of 

real necessity”).

88 GC art. 30 (“Apart from the visits of the delegates of the Protecting Powers and of the International Committee of 

the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate as much as possible 

visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or 

material relief to such persons.”).

89 GC art. 27 (“However, the Parties to the conflict may take such measures of control and security in regard to 

protected persons as may be necessary as a result of the war.”).
680

home territory, measures of control are normally taken with respect to, at the very least, persons 

known to be active or reserve members of a hostile army, persons who would be liable to service 

in the enemy forces, and persons who it is expected would furnish information or other aid to a 

hostile State.90

These measures may include, for example, requiring protected persons: (1) to register 

with and report periodically to the police authorities; (2) to carry identity cards or special papers;

(3) to refrain from carrying weapons; (4) to refrain from changing their place of residence 

without permission; (5) to refrain from accessing certain areas; (6) to have an assigned residence; 

and (7) to be interned.91

This section addresses searches, interrogation, and general rules for measures of control 

and security applied to protected persons, which must be applied consistent with humane 

treatment requirements.

92

10.6.1 General Authority of a Belligerent to Search and Secure Protected Persons and 

Their Property. The measures of control and security that a belligerent may take in regard to 

protected persons include searching and securing protected persons and their property when 

necessary as a result of the war (e.g., for security reasons and intelligence purposes).

93

10.6.1.1 Searches of Protected Persons. The dignity and honor of the protected 

person being searched should be protected to the greatest degree possible under the 

circumstances.94 The person conducting the search should avoid doing or saying anything likely 

to be regarded as indecent. In some circumstances, it may be appropriate for a witness to 

observe the search so as to protect both the person being searched from abuse and the person 

conducting the search from unfounded accusations of abuse.

10.6.1.2 Search of Female Protected Persons. It is appropriate for female 

protected persons to be searched by female personnel, if possible. This practice helps reduce the 

risk of accusations of indecent behavior.

 90 1956 FM 27-10 (Change No. 1 1976) ¶26 (“Measures of control are normally taken with respect to at least 

persons known to be active or reserve members of a hostile army, persons who would be liable to service in the 

enemy forces, and persons who it is expected would furnish information or other aid to a hostile State.”).

91 GC COMMENTARY 207 (“The various security measures which States might take are not specified; the Article 

merely lays down a general provision. There are a great many measures, ranging from comparatively mild 

restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of 

identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any 

change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or 

even assigned residence and internment (which, according to Article 41, are the two most severe measures a 

belligerent may inflict on protected persons). A great deal is thus left to the discretion of the Parties to the conflict 

as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the 

fundamental rights of the persons concerned.”).

92 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

93 Compare § 9.6 (Security Measures With Respect to POWs).

94 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
681

A woman internee shall not be searched except by a woman.95

10.6.1.3 Securing Protected Persons With Handcuffs and Other Security Devices. 

When necessary for security reasons, protected persons may be secured temporarily with 

handcuffs, flex cuffs, blindfolds, or other security devices.96

10.6.1.4 Search of the Property of Protected Persons. When necessary as a result 

of the war, items in the possession of protected persons may be removed and searched, but 

property should be returned as soon as possible, absent a legal basis for the seizure of the

property.

97

10.6.2 Interrogation of Protected Persons. The law of war does not prohibit interrogation 

of protected persons, but specifies conditions and limitations for conducting interrogation. 

10.6.2.1 Humane Treatment During Interrogation. Interrogation must be carried 

out in a manner consistent with the requirements for humane treatment, including the prohibition 

against acts of violence or intimidation, and insults.

98

No physical or moral coercion shall be exercised against protected persons to obtain 

information from them or from third parties.99

10.6.2.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy 

impose additional requirements on the interrogation of protected persons.

100

10.6.3 No Measures of Control More Severe Than Assigned Residence or Internment. If 

the measures of control mentioned in the GC for protected persons are considered to be 

inadequate by the Power imposing them, that Power may not have recourse to any other measure 

of control more severe than that of assigned residence or internment, in accordance with the 

provisions of Articles 42 and 43 of the GC.101

Similarly, if the Occupying Power considers it necessary, for imperative reasons of 

security, to take safety measures concerning protected persons, it may, at the most, subject them 

to assigned residence or to internment.102

 95 GC art. 97 (“A woman internee shall not be searched except by a woman.”).

96 Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).

97 Refer to § 5.17 (Seizure and Destruction of Enemy Property).

98 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

99 Refer to § 10.5.3.1 (No Physical or Moral Coercion).

100 Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).

101 GC art. 41 (“Should the Power in whose hands protected persons may be consider the measures of control 

mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control 

more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 

43.”).

102 GC art. 78 (“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety 

measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”).
682

10.6.4 Support to Persons Who Are Assigned Residence Should Be Guided by 

Internment Standards. In applying the provisions of the second paragraph of Article 39 of the 

GC to the cases of persons required to leave their usual places of residence by virtue of a 

decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as 

closely as possible by the standards of welfare set forth in Part III, Section IV of the GC.103 In 

other words, if the State assigns residence to a protected person in its home territory that results 

in the protected person being unable to support himself or herself and his or her dependents, the

State shall provide support to that protected person and his or her dependents, being guided as 

closely as possible by the standards of welfare set forth in Part III, Section IV of the GC, which 

provides regulations for the treatment of internees. 

Similarly, in occupied territory, protected persons made subject to assigned residence and 

thus required to leave their homes shall enjoy the full benefit of Article 39 of the GC.104 For 

example, the internment standards in the GC should also be a guide for support to protected 

persons and their dependents who are subject to assigned residence in occupied territory.

10.6.5 Refugees Who Do Not Enjoy the Protection of Any Government. In applying the 

measures of control mentioned in the GC to protected persons in its home territory, the Detaining 

Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an 

enemy State, refugees who do not, in fact, enjoy the protection of any government.105 For 

example, a refugee who is not actually protected by his or her government should not be 

automatically subject to control measures simply on the basis of enemy nationality, but may be 

subject to any other recognized control measure if there are additional reasons for such action.106

10.7 GENERAL TREATMENT OF PROTECTED PERSONS IN A BELLIGERENT’S HOME TERRITORY

10.7.1 Regulation of the Situation of Protected Persons, in Principle, by Provisions 

Applicable to Aliens in Time of Peace. With the exception of special measures authorized by the 

GC, in particular by Articles 27 and 41 of the GC (i.e., measures of control and security, such as 

internment), the situation of protected persons shall continue to be regulated, in principle, by the

 103 GC art. 41 (“In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave 

their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining 

Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this 

Convention.”).

104 GC art. 78 (“Protected persons made subject to assigned residence and thus required to leave their homes shall 

enjoy the full benefit of Article 39 of the present Convention.”).

105 GC art. 44 (“In applying the measures of control mentioned in the present Convention, the Detaining Power shall 

not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, 

in fact, enjoy the protection of any government.”).

106 See 1956 FM 27-10 (Change No. 1 1976) ¶283b (“The purpose of the foregoing article [37 of the GC] is to insure 

that refugees who may only technically remain enemy aliens are not on that basis automatically subject to control 

measures, notwithstanding the fact they actually are not protected by their government. However, the quoted 

provision does not in any way deny the right of a State to intern any such person or subject him to any other 

recognized measure of control when there is any additional reason that renders necessary the taking of such action as 

may be required for the security of the State in a moment of national crisis.”).
683

provisions concerning aliens in time of peace.107 In any case, the following rights shall be 

granted to them: 

• They shall be enabled to receive the individual or collective relief that may be sent to 

them (e.g., by their home country or national or international relief organizations, such as 

the ICRC). 

• They shall, if their state of health so requires, receive medical attention and hospital 

treatment to the same extent as the nationals of the State concerned. 

• They shall be allowed to practice their religion and to receive spiritual assistance from 

ministers of their faith. 

• If they reside in an area particularly exposed to the dangers of war, they shall be 

authorized to move from that area to the same extent as the nationals of the State 

concerned. 

• Children under fifteen years, pregnant women, and mothers of children under seven years 

shall benefit from any preferential treatment to the same extent as the nationals of the 

State concerned.108

10.7.2 Opportunity for Employment and Other Support. Protected persons who, as a 

result of the war, have lost their gainful employment, shall be granted the opportunity to find 

paid employment.109 That opportunity shall, subject to security considerations and to the 

provisions of Article 40, be equal to that enjoyed by the nationals of the Power in whose territory 

they are.110

10.7.2.1 Support When Measures of Control Are Applied. Where a party to the 

conflict applies to a protected person methods of control that result in that person being unable to 

support himself or herself, and especially if such a person is prevented for reasons of security 

from finding paid employment on reasonable conditions, that party shall ensure his or her 

 107 GC art. 38 (“With the exception of special measures authorized by the present Convention, in particular by 

Articles 27 and 41 thereof, the situation of protected persons shall continue to be regulated, in principle, by the 

provisions concerning aliens in time of peace.”).

108 GC art. 38 (“In any case, the following rights shall be granted to them: (1) They shall be enabled to receive the 

individual or collective relief that may be sent to them. (2) They shall, if their state of health so requires, receive 

medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) They shall be 

allowed to practise their religion and to receive spiritual assistance from ministers of their faith. (4) If they reside in 

an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same 

extent as the nationals of the State concerned. (5) Children under fifteen years, pregnant women and mothers of 

children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State 

concerned.”).

109 GC art. 39 (“Protected persons who, as a result of the war, have lost their gainful employment, shall be granted 

the opportunity to find paid employment.”).

110 GC art. 39 (“That opportunity shall, subject to security considerations and to the provisions of Article 40, be 

equal to that enjoyed by the nationals of the Power in whose territory they are.”).
684

support and that of his or her dependents.111

10.7.2.2 Receipt of Allowances. Protected persons may in any case receive 

allowances from their home country, the Protecting Power, or the relief societies referred to in 

Article 30 of the GC (e.g., the ICRC).

112

10.7.3 Compulsory Work for Protected Persons in a Belligerent’s Home Territory. 

Protected persons may be compelled to work only to the same extent as nationals of the party to 

the conflict in whose territory they are.113

If protected persons are of enemy nationality, they may only be compelled to do work 

that is normally necessary to ensure the feeding, sheltering, clothing, transport, and health of 

human beings and that is not directly related to the conduct of military operations.114

In the cases mentioned in the two preceding paragraphs, protected persons compelled to 

work shall have the benefit of the same working conditions and of the same safeguards as 

national workers, in particular as regards wages, hours of labor, clothing and equipment, 

previous training, and compensation for occupational accidents and diseases.115

If the above provisions are infringed, protected persons shall be allowed to exercise their 

right of complaint in accordance with Article 30 of the GC.116

10.7.4 Cancellation of Restrictive Measures After Hostilities. In so far as they have not 

been previously withdrawn, restrictive measures taken regarding protected persons shall be 

cancelled as soon as possible after the close of hostilities.117 Restrictive measures affecting their 

property shall be cancelled, in accordance with the law of the Detaining Power, as soon as 

 111 GC art. 39 (“Where a Party to the conflict applies to a protected person methods of control which result in his 

being unable to support himself, and especially if such a person is prevented for reasons of security from finding 

paid employment on reasonable conditions, the said Party shall ensure his support and that of his dependents.”).

112 GC art. 39 (“Protected persons may in any case receive allowances from their home country, the Protecting 

Power, or the relief societies referred to in Article 30.”).

113 GC art. 40 (“Protected persons may be compelled to work only to the same extent as nationals of the Party to the 

conflict in whose territory they are.”).

114 GC art. 40 (“If protected persons are of enemy nationality, they may only be compelled to do work which is 

normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not 

directly related to the conduct of military operations.”).

115 GC art. 40 (“In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shall 

have the benefit of the same working conditions and of the same safeguards as national workers, in particular as 

regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational 

accidents and diseases.”).

116 GC art. 40 (“If the above provisions are infringed, protected persons shall be allowed to exercise their right of 

complaint in accordance with Article 30.”). Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and 

Assistance Organizations Such as the ICRC).

117 GC art. 46 (“In so far as they have not been previously withdrawn, restrictive measures taken regarding protected 

persons shall be cancelled as soon as possible after the close of hostilities.”).
685

possible after the close of hostilities.118

10.8 EXPULSION FROM AREAS WITHIN A BELLIGERENT’S HOME TERRITORY AND DEPARTURE AND 

TRANSFERS OF PROTECTED PERSONS FROM A BELLIGERENT’S HOME TERRITORY

10.8.1 Expulsion From Areas Within a Belligerent’s Home Territory. At the outbreak of 

hostilities, a State may expel or bar the citizens or subjects of the enemy State from its seaports, 

the area surrounding airbases, airports, and fortified places, areas of possible attack, and the 

actual or contemplated theaters of operation. 

When such expulsion is decreed, the persons expelled should be given such reasonable 

notice, consistent with public safety, as will enable them to arrange for the collection, disposal, 

and removal of their goods and property, and for the settlement of their personal affairs.119 

Although such expulsion must be implemented in a humane manner, the provisions of the 

GC addressing a State’s internment or assigned residence of civilians of an enemy State in its 

home territory (Articles 41-45), including the transfer of internees to other countries, do not 

apply to such expulsion.120

10.8.2 Departures of Protected Persons From a Belligerent’s Home Territory. All 

protected persons who may desire to leave the territory at the outset of or during a conflict shall 

be entitled to do so, unless their departure is contrary to the national interests of the State.121 The 

applications of such persons to leave shall be decided in accordance with regularly established 

procedures, and the decision shall be taken as rapidly as possible.122 Those persons permitted to 

leave may provide themselves with the necessary funds for their journey and take with them a 

reasonable amount of their effects and articles of personal use.123

 118 GC art. 46 (“Restrictive measures affecting their property shall be cancelled, in accordance with the law of the 

Detaining Power, as soon as possible after the close of hostilities.”).

119 See 1956 FM 27-10 (Change No. 1 1976) ¶27 (“In modern practice at the outbreak of hostilities the expulsion of 

the citizens or subjects of the enemy is generally decreed from seaports, the area surrounding airbases, airports, and 

fortified places, areas of possible attack, and the actual or contemplated theaters of operation. When expulsion is 

decreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable 

them to arrange for the collection, disposal, and removal of their goods and property and for the settlement of their 

personal affairs. Such persons do not, however, benefit from the provisions of Articles 41 through 45, GC (pars. 

280-284).”).

120 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 826 (“The internment procedure 

laid down in Article 40 is similar to that provided for in Article 32 with regard to the authorization to leave the 

territory. Article 40 also empowers a court or administrative board, to be selected by the Detaining Power, to take 

decisions in cases of appeal against internment or assigned residence. The term ‘assigned residence’ obviously 

denotes a measure applicable to one person or one family, not the prohibition to enter or reside in a specified zone 

imposed upon an anonymous body of people such as all the nationals of a certain State.”).

121 GC art. 35 (“All protected persons who may desire to leave the territory at the outset of, or during a conflict, shall 

be entitled to do so, unless their departure is contrary to the national interests of the State.”).

122 GC art. 35 (“The applications of such persons to leave shall be decided in accordance with regularly established 

procedures and the decision shall be taken as rapidly as possible.”).

123 GC art. 35 (“Those persons permitted to leave may provide themselves with the necessary funds for their journey 

and take with them a reasonable amount of their effects and articles of personal use.”).
686

If any such person is refused permission to leave the territory, he or she shall be entitled 

to have such refusal reconsidered as soon as possible by an appropriate court or administrative 

board designated by the Detaining Power for that purpose.124

Upon request, representatives of the Protecting Power shall, unless reasons of security 

prevent it, or the persons concerned object, be furnished with the reasons for refusal of any 

request for permission to leave the territory and be given, as expeditiously as possible, the names 

of all persons who have been denied permission to leave.125

Departures permitted under Article 35 of the GC shall be carried out in satisfactory 

conditions as regards safety, hygiene, sanitation, and food.126 All costs in connection therewith, 

from the point of exit in the territory of the Detaining Power, shall be borne by the country of 

destination or, in the case of accommodation in a neutral country, by the Power whose nationals 

are benefited.127 The practical details of such movements may, if necessary, be settled by special 

agreements between the Powers concerned.128

The foregoing shall not prejudice such special agreements as may be concluded between 

parties to the conflict concerning the exchange and repatriation of their nationals in enemy 

hands.129

Protected persons who are confined pending proceedings or serving a sentence involving 

loss of liberty shall be treated humanely during their confinement.130 As soon as they are 

released, they may ask to leave the territory in conformity with Articles 35 and 36 of the GC.131

10.8.3 Transfers of Protected Persons From a Belligerent’s Home Territory. 

 124 GC art. 35 (“If any such person is refused permission to leave the territory, he shall be entitled to have such 

refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining 

Power for that purpose.”).

125 GC art. 35 (“Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or 

the persons concerned object, be furnished with the reasons for refusal of any request for permission to leave the 

territory and be given, as expeditiously as possible, the names of all persons who have been denied permission to 

leave.”).

126 GC art. 36 (“Departures permitted under the foregoing Article shall be carried out in satisfactory conditions as 

regards safety, hygiene, sanitation and food.”).

127 GC art. 36 (“All costs in connection therewith, from the point of exit in the territory of the Detaining Power, shall 

be borne by the country of destination, or, in the case of accommodation in a neutral country, by the Power whose 

nationals are benefited.”).

128 GC art. 36 (“The practical details of such movements may, if necessary, be settled by special agreements between 

the Powers concerned.”).

129 GC art. 36 (“The foregoing shall not prejudice such special agreements as may be concluded between Parties to 

the conflict concerning the exchange and repatriation of their nationals in enemy hands.”).

130 GC art. 37 (“Protected persons who are confined pending proceedings or serving a sentence involving loss of 

liberty, shall during their confinement be humanely treated.”).

131 GC art. 37 (“As soon as they are released, they may ask to leave the territory in conformity with the foregoing 

Articles.”).
687

10.8.3.1 Requirements for Transfer. Protected persons shall not be transferred to 

a Power that is not a Party to the GC.132 This provision shall in no way constitute an obstacle to 

the repatriation of protected persons, or to their return to their country of residence after the 

cessation of hostilities.133

Protected persons may be transferred by the Detaining Power only to a Power that is a 

Party to the GC and after the Detaining Power has satisfied itself of the willingness and ability of 

such receiving Power to apply the GC.134

In no circumstances shall a protected person be transferred to a country where he or she 

may have reason to fear persecution for his or her political opinions or religious beliefs.135 In 

addition, U.S. policy provides that no detainee shall be transferred to another State if it is more 

likely than not that the detainee would be tortured in the receiving country.136

The provisions of Article 45 of the GC do not constitute an obstacle to the extradition, 

under extradition treaties concluded before the outbreak of hostilities, of protected persons 

accused of offenses against ordinary criminal law.137

10.8.3.2 Responsibility Upon Transfer. If protected persons are transferred under 

such circumstances, responsibility for the application of the GC rests on the Power accepting 

them, while they are in its custody.138 Nevertheless, if that Power fails to carry out the 

provisions of the GC in any important respect, the Power by which the protected persons were 

transferred shall, upon being so notified by the Protecting Power, take effective measures to 

correct the situation or shall request the return of the protected persons.139 Such request must be 

complied with.140

 132 GC art. 45 (“Protected persons shall not be transferred to a Power which is not a party to the Convention.”).

133 GC art. 45 (“This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to 

their return to their country of residence after the cessation of hostilities.”).

134 GC art. 45 (“Protected persons may be transferred by the Detaining Power only to a Power which is a party to the 

present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee 

Power to apply the present Convention.”).

135 GC art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have 

reason to fear persecution for his or her political opinions or religious beliefs.”).

136 Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

137 GC art. 45 (“The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of 

extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against 

ordinary criminal law.”).

138 GC art. 45 (“If protected persons are transferred under such circumstances, responsibility for the application of 

the present Convention rests on the Power accepting them, while they are in its custody.”).

139 GC art. 45 (“Nevertheless, if that Power fails to carry out the provisions of the present Convention in any 

important respect, the Power by which the protected persons were transferred shall, upon being so notified by the 

Protecting Power, take effective measures to correct the situation or shall request the return of the protected 

persons.”).

140 GC art. 45 (“Such request must be complied with.”).
688

10.9 INTERNMENT

The parties to the conflict shall not intern protected persons, except in accordance with 

the provisions of Articles 41, 42, 43, 68, and 78 of the GC.

141

10.9.1 Principles Underlying the Internment of Protected Persons Compared to Those 

Underlying POW Internment. In some respects, the principles underlying the internment of 

protected persons are similar to the principles underlying the internment of POWs.142 For 

example, the internment of protected persons is non-punitive, the Detaining Power is responsible 

for the treatment of internees in its custody, and humane treatment is required.

However, the GC recognizes that the internment of protected persons is quite different in 

character from that of POWs by requiring the separation of internees from POWs.143 Protected 

persons interned for security reasons, in theory, have not participated in hostilities.144 Thus, their 

internment shall cease when the reasons that have necessitated it have ceased, which may occur 

before the end of the conflict.145 In practice, however, internment for security reasons may 

involve persons who have participated in hostilities, and such persons’ continued detention for 

the duration of the conflict may be justified in order to prevent their further participation in the 

conflict.

On the other hand, internees are not members of the armed forces and, thus, in certain 

respects, have not earned the special privileges that POWs have earned.146 For example,

although internees receive allowances, internees do not receive specified advances of pay like 

POWs.147 Similarly, internees who have successfully escaped do not benefit from the immunity 

from punishment applicable to POWs who have successfully escaped.

148 

10.9.2 Procedure for Internment or Assigned Residence on Home Territory. 

10.9.2.1 Internment or Assigned Residence Only if Absolutely Necessary. The 

internment or placing in assigned residence of protected persons may be ordered only if the 

 141 GC art. 79 (“The Parties to the conflict shall not intern protected persons, except in accordance with the 

provisions of Articles 41, 42, 43, 68 and 78.”).

142 Refer to § 9.2 (General Principles Applicable to the Treatment of POWs).

143 Refer to § 10.10.1 (Segregation From Other Types of Detainees).

144 GC COMMENTARY 368 (“The persons subjected to these measures [of assigned residence or internment in 

accordance with Article 78 of the GC] are not, in theory, involved in the struggle. The precautions taken with regard 

to them cannot, therefore, be in the nature of a punishment.”).

145 Refer to § 10.9.5 (Release As Soon As Reasons for Internment No Longer Exist).

146 See, e.g., II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 681 (“Mr. WERSHOF

(Canada) suggested that the first paragraph should be deleted. He failed to see why the Detaining Power should 

make an allowance of any kind to enemy aliens whom it considered dangerous. He was of the opinion that the 

analogy between internees and prisoners of war had been carried too far. Prisoners of war had earned a standard of 

treatment which had not been earned by internees.”).

147 Refer to § 10.19.2 (Internee Allowances); § 9.18.3 (Advance of Pay).

148 Refer to § 10.26 (Internee Escapes); § 9.25.1 (No Punishment for Successful Escape).
689

security of the Detaining Power makes it absolutely necessary.149

10.9.2.2 Voluntary Internment. If any person, acting through the representatives 

of the Protecting Power, voluntarily demands internment, and if his or her situation renders this 

step necessary, he or she shall be interned by the Power in whose hands he or she may be.150

10.9.2.3 Reconsideration and Periodic Review. Any protected person who has 

been interned or placed in assigned residence shall be entitled to have such action reconsidered 

as soon as possible by an appropriate court or administrative board designated by the Detaining 

Power for that purpose.151 If the internment or placing in assigned residence is maintained, the 

court or administrative board shall periodically, and at least twice yearly, give consideration to 

his or her case, with a view to the favorable amendment of the initial decision, if circumstances 

permit.

152

10.9.2.4 Notification to the Protecting Power. Unless the protected persons 

concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power 

the names of any protected persons who have been interned or subjected to assigned residence, 

or who have been released from internment or assigned residence.153 The decisions of the courts 

or boards mentioned in the first paragraph of Article 43 of the GC shall also, subject to the same 

conditions, be notified as rapidly as possible to the Protecting Power.154

10.9.3 Procedure for Internment or Assigned Residence in Occupied Territory. The 

requirements in the GC for the procedure for assigned residence or internment of protected 

persons in occupied territory are not as elaborate as those applicable in a belligerent’s home 

territory because of concerns that it would not be practicable to implement the requirements 

applicable in a belligerent’s home territory in view of the disorder that might prevail in occupied 

territory.155

 149 GC art. 42 (“The internment or placing in assigned residence of protected persons may be ordered only if the 

security of the Detaining Power makes it absolutely necessary.”).

150 GC art. 42 (“If any person, acting through the representatives of the Protecting Power, voluntarily demands 

internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may 

be.”).

151 GC art. 43 (“Any protected person who has been interned or placed in assigned residence shall be entitled to have 

such action reconsidered as soon as possible by an appropriate court or administrative board designated by the 

Detaining Power for that purpose.”).

152 GC art. 43 (“If the internment or placing in assigned residence is maintained, the court or administrative board 

shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable 

amendment of the initial decision, if circumstances permit.”).

153 GC art. 43 (“Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, 

give the Protecting Power the names of any protected persons who have been interned or subjected to assigned 

residence, or who have been released from internment or assigned residence.”).

154 GC art. 43 (“The decisions of the courts or boards mentioned in the first paragraph of the present Article shall 

also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.”).

155 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 773 (“[T]he Drafting Committee 

had felt that in view of the disorder which might prevail in occupied territory, it would not be practicable to lay 

down an elaborate procedure for internement, similar to that provided for the territory of a Party to the conflict. 
690

10.9.3.1 Internment or Assigned Residence for Imperative Reasons of Security. If 

the Occupying Power considers it necessary, for imperative reasons of security, to take safety 

measures concerning protected persons, it may, at the most, subject them to assigned residence 

or to internment.156

Decisions regarding such assigned residence or internment shall be made according to a 

regular procedure to be prescribed by the Occupying Power in accordance with the provisions of 

the GC.157 This procedure shall include the right of appeal for the parties concerned.158 Appeals 

shall be decided with the least possible delay.159 In the event of the decision being upheld, it 

shall be subject to periodic review, if possible every six months, by a competent body set up by 

the Occupying Power.

160 “Competent bodies” to review the internment or assigned residence of 

protected persons may be created with advisory functions only, leaving the final decision to a 

high official of the Government.161

10.9.3.2 Internment for Minor Offenses Directed Against the Occupying Power. 

Protected persons who commit an offense that is solely intended to harm the Occupying Power, 

but that does not constitute an attempt on the life or limb of members of the occupying forces or 

administration, nor a grave collective danger, nor seriously damage the property of the 

occupying forces or administration or the installations used by them, shall be liable to internment 

or simple imprisonment, provided the duration of such internment or imprisonment is 

proportionate to the offense committed.162 Furthermore, internment or imprisonment shall, for 

 They had felt that it would be wiser to content themselves with making the Occupying Power responsible for 

establishing a regular and systematic procedure to suit the circumstances. The Occupying Power would then have 

no excuse for making arbitrary decisions regarding internment.”).

156 GC art. 78 (“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety 

measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”).

157 GC art. 78 (“Decisions regarding such assigned residence or internment shall be made according to a regular 

procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention.”).

158 GC art. 78 (“This procedure shall include the right of appeal for the parties concerned.”).

159 GC art. 78 (“Appeals shall be decided with the least possible delay.”).

160 GC art. 78 (“In the event of the decision being upheld, it shall be subject to periodical review, if possible every 

six months, by a competent body set up by the said Power.”).

161 1956 FM 27-10 (Change No. 1 1976) ¶433b (“‘Competent bodies’ to review the internment or assigned residence 

of protected persons may be created with advisory functions only, leaving the final decision to a high official of the 

Government.”); SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report 

of the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 22 (Jun. 27, 

1955) (“In article 78 it is likewise provided that persons who have been placed in internment or assigned residence 

in occupied territory, shall be entitled to review or reconsideration by a ‘competent body.’ From information 

furnished to the committee by the executive branch it appears that the administrative boards and the competent 

bodies contemplated by the three articles to reconsider decisions in these cases may be created with advisory 

functions only, leaving the final decision to a high official or officer of the government. This understanding of the 

provisions appears to be a reasonable one to the committee.”).

162 Refer to § 11.11.4 (Limitations on Penalties for Certain, Non-Serious Offenses Solely Intended to Harm the 

Occupying Power).
691

such offenses, be the only measure adopted for depriving protected persons of liberty.163 The 

courts provided for under Article 66 of the GC may at their discretion convert a sentence of 

imprisonment to one of internment for the same period.164

10.9.4 Maintenance of Internees. Parties to the conflict who intern protected persons 

shall be bound to provide free of charge for their maintenance, and to grant them also the 

medical attention required by their state of health.165 No deduction from the allowances, 

salaries, or credits due to the internees shall be made for the repayment of these costs.166 The 

Detaining Power shall provide for the support of those dependent on the internees, if such 

dependents are without adequate means of support or are unable to earn a living.167

10.9.5 Release As Soon As Reasons for Internment No Longer Exist. Each interned 

person shall be released by the Detaining Power as soon as the reasons that necessitated his or 

her internment no longer exist.168

10.9.6 Agreements for the Release, Return, or Accommodation in a Neutral Country of 

Certain Classes of Internees. The parties to the conflict shall endeavor during the course of 

hostilities to conclude agreements for the release, the repatriation, the return to places of 

residence, or the accommodation in a neutral country of certain classes of internees, in particular 

children, pregnant women, and mothers with infants and young children, wounded and sick, and 

internees who have been detained for a long time.169

10.10 SEGREGATION OF INTERNEES

10.10.1 Segregation From Other Types of Detainees. Internees shall be accommodated 

and administered separately from POWs and from persons deprived of liberty for any other 

reason.170 This rule reflects the difference in character between the internment of internees from 

 163 Refer to § 11.11.4.1 (Internment or Imprisonment as the Only Measure Adopted for Depriving Protected Persons 

of Liberty for Such Offenses).

164 Refer to § 11.11.4.2 (Discretion of Non-Political, Military Courts to Convert Sentences of Imprisonment to 

Sentences of Internment).

165 GC art. 81 (“Parties to the conflict who intern protected persons shall be bound to provide free of charge for their 

maintenance, and to grant them also the medical attention required by their state of health.”).

166 GC art. 81 (“No deduction from the allowances, salaries or credits due to the internees shall be made for the 

repayment of these costs.”).

167 GC art. 81 (“The Detaining Power shall provide for the support of those dependent on the internees, if such 

dependents are without adequate means of support or are unable to earn a living.”).

168 GC art. 132 (“Each interned person shall be released by the Detaining Power as soon as the reasons which 

necessitated his internment no longer exist.”).

169 GC art. 132 (“The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude 

agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral 

country of certain classes of internees, in particular children, pregnant women and mothers with infants and young 

children, wounded and sick, and internees who have been detained for a long time.”).

170 GC art. 84 (“Internees shall be accommodated and administered separately from prisoners of war and from 

persons deprived of liberty for any other reason.”).
692

other types of detention or confinement.

171

10.10.2 Accommodation According to Nationality, Language, and Customs. The 

Detaining Power shall, as far as possible, accommodate the internees according to their 

nationality, language, and customs.172 Unlike the comparable rule in the GPW, this provision 

has the qualification “as far as possible” because of the competing interest in leaving internees 

near their families and because POWs are generally automatically grouped by nationality as a 

consequence of the circumstances of their capture.173 Internees who are nationals of the same 

country shall not be separated merely because they speak different languages.174

10.10.3 Families Kept Together. Throughout the duration of their internment, members 

of the same family, and in particular parents and children, shall be lodged together in the same 

place of internment, except when separation of a temporary nature is necessitated for reasons of 

employment or health or for the purposes of enforcement of the provisions of Chapter IX (Penal 

and Disciplinary Sanctions) of Section IV of the GC.175 Keeping families together during 

internment is intended to improve the morale and welfare of internees.176

Internees may request that their children who are left at liberty without parental care shall 

be interned with them.177 For example, two parents who are interned together may request that 

 171 GC COMMENTARY 384 (“This provision shows once more that the detention of internees is quite different in 

character from that of prisoners of war or common criminals. Internment is simply a precautionary measure and 

should not be confused with the penalty of imprisonment.”).

172 GC art. 82 (“The Detaining Power shall, as far as possible, accommodate the internees according to their 

nationality, language and customs.”).

173 GC COMMENTARY 380 (“This paragraph corresponds to paragraph 3 of Article 22 of the Convention relative to 

the Treatment of Prisoners of War. It states, but in less mandatory form, the principIe that internees should be 

grouped, adding the words ‘as far as possible’ which do not occur in the Prisoners of War Convention. Indeed, 

prisoners of war generally fall into groups of the same nationality as a natural consequence of being captured 

together and grouping can be organized to a certain extent automatically. The grouping of civilians, on the other 

hand, who are taken into custody separately and sometimes coming from places distant from one another, presents 

some difficulties. It is better in certain cases to leave the internees near their families rather than to send them to a 

distance, in order to reunite them with persons of the same language and nationality. It is for this reason that Article 

82 of the Fourth Convention is not mandatory.”). Refer to § 9.12.1 (Assembling According to Nationality, 

Language, and Customs).

174 GC art. 82 (“Internees who are nationals of the same country shall not be separated merely because they have 

different languages.”).

175 GC art. 82 (“Throughout the duration of their internment, members of the same family, and in particular parents 

and children, shall be lodged together in the same place of internment, except when separation of a temporary nature 

is necessitated for reasons of employment or health or for the purposes of enforcement of the provisions of Chapter 

IX of the present Section.”).

176 See GC COMMENTARY 380-81 (“The experience of the Second World War showed that internment was far less 

difficult to bear whenever internees could be grouped together in families. In India, Rhodesia, Kenya, Uganda, 

Tanganyika, Eritrea and France (at Vittel), such groups were successfully organized and the morale of the internees 

was better in those places than in other places of internment. Children benefited from the presence of their parents 

and were able to attend the school set up inside the camp. It is to the results of this experience which paragraphs 2 

and 3 try to give permanent form in accordance with the recommendations of the experts.”).

177 GC art. 82 (“Internees may request that their children who are left at liberty without parental care shall be 

interned with them.”).
693

their children be interned with them, but one of the parents would not be able to request the 

internment of a child being cared for by a parent who was not being interned.178

Wherever possible, interned members of the same family shall be housed in the same 

premises and given separate accommodation from other internees, together with facilities for 

leading a proper family life.179

10.11 SAFETY, HYGIENE, AND LIVING CONDITIONS IN PLACES OF INTERNMENT

10.11.1 Safety of Places of Internment. 

10.11.1.1 Avoidance of Particularly Dangerous Areas. The Detaining Power 

shall not set up places of internment in areas particularly exposed to the dangers of war.180 

10.11.1.2 Sharing Information on the Location of Places of Internment. 

Detaining Powers shall give enemy Powers, through the intermediary of the Protecting Powers, 

all useful information regarding the geographic location of places of internment.181 

10.11.1.3 Marking of Internment Camps. Whenever military considerations 

permit, internment camps shall be indicated by the letters “IC,” placed so as to be clearly visible 

in the daytime from the air.182 The Powers concerned may, however, agree upon any other 

system of marking.183 No place, other than an internment camp, shall be marked as such.184

The caveat that internment camps need to be marked, as such, only when military 

considerations permit was intended to allow for camps not to be marked, e.g., if such 

identification would enable an Enemy Power to instigate a revolt in the camp, provide weapons

to the internees, enable escape attempts, etc.185

 178 GC COMMENTARY 381 (“The report of the Third Committee indicates that the addition of the words ‘without 

parental care’ is intended to show that if only one of the parents is interned, he or she would not have the right, 

under the Convention, to demand the internment of a child being cared for by the other parent. On the other hand, 

the father and mother would have the right to demand such internment if they were interned together.”).

179 GC art. 82 (“Wherever possible, interned members of the same family shall be housed in the same premises and 

given separate accommodation from other internees, together with facilities for leading a proper family life.”).

180 GC art. 83 (“The Detaining Power shall not set up places of internment in areas particularly exposed to the 

dangers of war.”).

181 GC art. 83 (“The Detaining Power shall give the enemy Powers, through the intermediary of the Protecting 

Powers, all useful information regarding the geographical location of places of internment.”).

182 GC art. 83 (“Whenever military considerations permit, internment camps shall be indicated by the letters IC, 

placed so as to be clearly visible in the daytime from the air.”).

183 GC art. 83 (“The Powers concerned may, however, agree upon any other system of marking.”).

184 GC art. 83 (“No place other than an internment camp shall be marked as such.”).

185 GC COMMENTARY 383 (“At the very beginning of hostilities during the Second World War, the International 

Committee of the Red Cross appealed to belligerents to mark their prisoner-of-war camps to protect them against 

bombing. Fearing that this would provide landmarks for the enemy air force, the Powers rejected the appeal. 

However, prisoners adopted the habit of displaying markings during the day consisting of large panels bearing the 

letters PG or PW. This method was approved by the Diplomatic Conference. It is, however, subject to an important 
694

10.11.1.4 Air-Raid Shelters and Protective Measures for Internees. In all places 

of internment exposed to air raids and other hazards of war, shelters adequate in number and 

structure to ensure the necessary protection shall be installed.186 In case of alarms, the internees 

shall be free to enter such shelters as quickly as possible, excepting those who remain for the 

protection of their quarters against these hazards.187 Any protective measures taken in favor of 

the population shall also apply to the internees.

188

10.11.1.5 Fire Precautions. All due precautions must be taken in places of 

internment against the danger of fire.189

10.11.2 Hygiene of Places of Internment. In no case shall permanent places of 

internment be situated in unhealthy areas, or in districts the climate of which is injurious to the 

internees.190 In all cases where the district in which a protected person is temporarily interned is 

in an unhealthy area, or has a climate that is harmful to his or her health, he or she shall be 

removed to a more suitable place of internment as rapidly as circumstances permit.191

10.11.2.1 Sanitary Conveniences (e.g., latrines, bathrooms). Internees shall have 

for their use, day and night, sanitary conveniences that conform to the rules of hygiene and are 

constantly maintained in a state of cleanliness.192 The term “sanitary conveniences” should be 

taken to mean primarily the latrines.193 Access to the latrines at night is specified in the 1949 

Geneva Conventions because this was a frequent problem in POW camps in World War II.194

 reservation drafted in the same way in the case of prisoners of war and of civilian internees: ‘whenever military 

considerations permit’. This means that in the case of civilian internment camps, the daytime marking by means of 

the letters IC could be discontinued if the Detaining Power feared, for example, a parachute drop of arms to help the 

internees to revolt.”).

186 GC art. 88 (“In all places of internment exposed to air raids and other hazards of war, shelters adequate in 

number and structure to ensure the necessary protection shall be installed.”).

187 GC art. 88 (“In case of alarms, the internees shall be free to enter such shelters as quickly as possible, excepting 

those who remain for the protection of their quarters against the aforesaid hazards.”).

188 GC art. 88 (“Any protective measures taken in favour of the population shall also apply to them.”).

189 GC art. 88 (“All due precautions must be taken in places of internment against the danger of fire.”).

190 GC art. 85 (“In no case shall permanent places of internment be situated in unhealthy areas, or in districts the 

climate of which is injurious to the internees.”).

191 GC art. 85 (“In all cases where the district, in which a protected person is temporarily interned, is in an unhealthy 

area or has a climate which is harmful to his health, he shall be removed to a more suitable place of internment as 

rapidly as circumstances permit.”).

192 GC art. 85 (“Internees shall have for their use, day and night, sanitary conveniences which conform to the rules 

of hygiene and are constantly maintained in a state of cleanliness.”).

193 GC COMMENTARY 387 (“The term ‘sanitary conveniences’ should be taken to mean primarily the latrines, in 

conformity with the similar provision contained in paragraph 2 of Article 29 of the Third Convention. These 

conveniences should be so constructed as to preserve decency and cleanliness and must be sufficiently numerous. 

They should be inspected periodically by the health authorities.”).

194 See GC COMMENTARY 387 (“During the Second World War prisoners of war were sometimes forbidden to leave 

their quarters during the night. The Convention relative to the Protection of Civilian Persons in Time of War, like 
695

In certain circumstances, women internees shall be provided separate sanitary 

conveniences for their use.195

10.11.2.2 Showers, Baths, Personal Toilet, and Laundry. Internees shall be 

provided with sufficient water and soap for their daily personal toilet and for washing their 

personal laundry; installations and facilities necessary for this purpose shall be granted to 

them.196

Showers or baths shall also be available.197 The necessary time shall be set aside for 

washing and for cleaning.198 Although the frequency of baths or showers is not specified in the 

GC, a reasonable opportunity (e.g., considering the available resources, the internees’ cultural 

practices, the activities in which they are engaged) should be afforded.199

10.11.3 Conditions of Buildings and Quarters. The Detaining Power is bound to take all 

necessary and possible measures to ensure that protected persons shall, from the outset of their 

internment, be accommodated in buildings or quarters that afford every possible safeguard in 

regard to hygiene and health, and provide efficient protection against the rigors of the climate 

and the effects of the war.200 

The premises shall be fully protected from dampness and adequately heated and lighted, 

in particular between dusk and lights out.201 The sleeping quarters shall be sufficiently spacious 

and well ventilated, and the internees shall have suitable bedding and sufficient blankets, with 

account being taken of the climate and of the age, sex, and state of health of the internees.202

10.11.3.1 Separate Sleeping Quarters and Latrines for Women. Whenever it is 

necessary, as an exceptional and temporary measure, to accommodate women internees who are 

not members of a family unit in the same place of internment as men, women internees shall be 

 

the Prisoners of War Convention, stipulates that internees should have sanitary conveniences for their use day and 

night.”). Refer to § 9.11.5.2 (Sanitary Conveniences (e.g., latrines, bathrooms)).

195 Refer to § 10.11.3.1 (Separate Sleeping Quarters and Latrines for Women).

196 GC art. 85 (“They shall be provided with sufficient water and soap for their daily personal toilet and for washing 

their personal laundry; installations and facilities necessary for this purpose shall be granted to them.”).

197 GC art. 85 (“Showers or baths shall also be available.”).

198 GC art. 85 (“The necessary time shall be set aside for washing and for cleaning.”).

199 GC COMMENTARY 387 (“The Government Experts had wished to lay down definitely the frequency with which 

baths could be taken. This idea was not accepted, but one bath or shower per week can be considered reasonable.”).

200 GC art. 85 (“The Detaining Power is bound to take all necessary and possible measures to ensure that protected 

persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every 

possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate 

and the effects of the war.”).

201 GC art. 85 (“The premises shall be fully protected from dampness, adequately heated and lighted, in particular 

between dusk and lights out.”).

202 GC art. 85 (“The sleeping quarters shall be sufficiently spacious and well ventilated, and the internees shall have 

suitable bedding and sufficient blankets, account being taken of the climate, and the age, sex, and state of health of 

the internees.”).
696

provided separate sleeping quarters and sanitary conveniences for their use.

203

10.12 CANTEENS FOR INTERNEES

Canteens shall be installed in every place of internment, except where other suitable 

facilities are available.204 As with canteens for POWs, the purpose of the canteen is to increase 

the morale and comfort of the internees.205

10.12.1 Establishment of the Canteen. Although canteens for POWs are required, 

canteens for civilian internees are not required if other suitable facilities, such as local shops, are 

available.206 

If other suitable facilities are not available, and before canteens can be established, the 

need for a canteen may be mitigated if internees are provided a free “comfort pack.”207

10.12.2 Canteen Stock and Prices. The purpose of the canteens shall be to enable 

internees to make purchases, at prices not higher than local market prices, of foodstuffs and 

articles of everyday use, including soap and tobacco, such as would increase their personal wellbeing and comfort.

208

Internees are not entitled to more favorable treatment than the population at large with 

respect to canteen facilities, and are equally subject to regulations, such as those pertaining to 

rationing, which are applied to the population generally.209

10.12.3 Canteen Management and Profits. Canteen profits shall be credited to a welfare 

fund to be set up for each place of internment, and administered for the benefit of the internees 

 203 GC art. 85 (“Whenever it is necessary, as an exceptional and temporary measure, to accommodate women 

internees who are not members of a family unit in the same place of internment as men, the provision of separate 

sleeping quarters and sanitary conveniences for the use of such women internees shall be obligatory.”).

204 GC art. 87 (“Canteens shall be installed in every place of internment, except where other suitable facilities are 

available.”).

205 Refer to § 9.17 (Canteens for POWs).

206 GC COMMENTARY 389 (“Whereas the establishment of canteens for prisoners of war is obligatory (Third 

Convention, Article 28, paragraph I), civilian internees will only be provided with canteens where other suitable 

facilities are not available. Indeed, there could be no question of establishing canteens if, for example, the internees 

were permitted to go to local shops to make purchases.”).

207 Compare § 9.17.1.1 (“Comfort Pack” Instead of Canteen and Advance of Pay).

208 GC art. 87 (“Their purpose shall be to enable internees to make purchases, at prices not higher than local market 

prices, of foodstuffs and articles of everyday use, including soap and tobacco, such as would increase their personal 

well-being and comfort.”).

209 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 837 (“The general view was, 

however, that Article 76 was simply a ‘morale-sustaining’ Article, and that the internee was simply to be given the 

chance of purchasing, for example, a particular kind of soap, of his own choice, in substitution for a corresponding 

amount of the kind which the Detaining Power would normally provide under Article 75. It would be unreasonable 

in any case to contend that the provision of canteens was intended to put the internee in a superior position to the 

population at large.”).
697

attached to such place of internment.210 The Internee Committee shall have the right to check 

the management of the canteen and of the fund.211

When a place of internment is closed down, the balance of the welfare fund shall be 

transferred to the welfare fund of a place of internment for internees of the same nationality, or, 

if such a place does not exist, to a central welfare fund that shall be administered for the benefit 

of all internees remaining in the custody of the Detaining Power.

212 In case of a general release, 

the profits shall be kept by the Detaining Power, subject to any agreement to the contrary 

between the Powers concerned.213

10.13 FOOD, WATER, TOBACCO, AND CLOTHING FOR INTERNEES

10.13.1 Food for Internees. Daily food rations for internees shall be sufficient in 

quantity, quality, and variety to keep internees in a good state of health and prevent the 

development of nutritional deficiencies.214 

10.13.1.1 Accounting for the Customary Diet. Account shall also be taken of the 

customary diet of the internees.215 For example, the internee’s cultural and religious 

requirements should be considered in determining and ensuring the appropriate diet.

10.13.1.2 Additional Food for Certain Groups. Internees who work shall receive 

additional rations in proportion to the kind of labor that they perform.216 Expectant and nursing 

mothers, and children under fifteen years of age, shall be given additional food, in proportion to 

their physiological needs.217

10.13.1.3 No Disciplinary Reductions in Food Rations. The reduction in food 

 210 GC art. 87 (“Profits made by canteens shall be credited to a welfare fund to be set up for each place of 

internment, and administered for the benefit of the internees attached to such place of internment.”).

211 GC art. 87 (“The Internee Committee provided for in Article 102 shall have the right to check the management of 

the canteen and of the said fund.”).

212 GC art. 87 (“When a place of internment is closed down, the balance of the welfare fund shall be transferred to 

the welfare fund of a place of internment for internees of the same nationality, or, if such a place does not exist, to a 

central welfare fund which shall be administered for the benefit of all internees remaining in the custody of the 

Detaining Power.”).

213 GC art. 87 (“In case of a general release, the said profits shall be kept by the Detaining Power, subject to any 

agreement to the contrary between the Powers concerned.”).

214 GC art. 89 (“Daily food rations for internees shall be sufficient in quantity, quality and variety to keep internees 

in a good state of health and prevent the development of nutritional deficiencies.”).

215 GC art. 89 (“Account shall also be taken of the customary diet of the internees.”).

216 GC art. 89 (“Internees who work shall receive additional rations in proportion to the kind of labour which they 

perform.”).

217 GC art. 89 (“Expectant and nursing mothers, and children under fifteen years of age, shall be given additional 

food, in proportion to their physiological needs.”).
698

rations as a disciplinary punishment is specifically prohibited.218

10.13.1.4 Means for Preparing Additional Food. Internees shall be given the 

means by which they can prepare for themselves any additional food in their possession.219 

Drinking Water. Sufficient drinking water shall be supplied to internees.220 10.13.2 

Use of Tobacco. The use of tobacco shall be permitted.221 10.13.3 The Detaining Power 

is not required to give tobacco to internees, but should offer it for sale at the canteen, if one is 

established.222 The Detaining Power may impose reasonable restrictions on smoking to ensure 

that the camp is a healthful and safe environment.

10.13.4 Clothing of Internees. When taken into custody, internees shall be given all 

facilities to provide themselves with the necessary clothing, footwear, and change of underwear, 

and, later on, to procure further supplies, if required.223 Should any internees not have sufficient 

clothing, account being taken of the climate, and be unable to procure any, it shall be provided 

free of charge to them by the Detaining Power.

224

10.13.4.1 No Humiliating Clothing. The clothing supplied by the Detaining 

Power to internees and the outward markings placed on their own clothes shall not be 

ignominious nor expose them to ridicule.225 For example, clothing provided to them should not 

resemble convicts’ uniforms or be intended to humiliate them.

226 

10.13.4.2 Clothing for Work. Workers shall receive suitable working outfits, 

 218 Refer to § 10.20.3.2 (Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill, Military Drill and 

Manuevers, or the Reduction of Food Rations).

219 GC art. 89 (“Internees shall also be given the means by which they can prepare for themselves any additional 

food in their possession.”).

220 GC art. 89 (“Sufficient drinking water shall be supplied to internees.”).

221 GC art. 89 (“The use of tobacco shall be permitted.”).

222 Refer to § 10.12.2 (Canteen Stock and Prices).

223 GC art. 90 (“When taken into custody, internees shall be given all facilities to provide themselves with the 

necessary clothing, footwear and change of underwear, and later on, to procure further supplies if required.”).

224 GC art. 90 (“Should any internees not have sufficient clothing, account being taken of the climate, and be unable 

to procure any, it shall be provided free of charge to them by the Detaining Power.”).

225 GC art. 90 (“The clothing supplied by the Detaining Power to internees and the outward markings placed on their 

own clothes shall not be ignominious nor expose them to ridicule.”).

226 See GC COMMENTARY 397 (“These provisos are connected with Articie 27 of the Convention stating that 

protected persons are entitled, in all circumstances, to respect for their persons and their honour. It is essential to 

prevent internees from being forced to wear convicts’ uniforms or other uniforms of a similar nature, as was the case 

in certain concentration camps of hateful memory. The plenipotentiaries were unanimous in 1949 in disapproving 

of such practices and although paragraph 1 had already, as it were, implied that disapproval, they felt that they 

should reaffirm it explicitly at this point. It must, indeed, always be remembered that internment is not a 

punishment and cannot in any way besmirch anyone's honour.”).
699

including protective clothing, whenever the nature of their work so requires.227

10.14 MEDICAL ATTENTION FOR INTERNEES

Parties to the conflict who intern protected persons shall be bound to grant them the 

medical attention required by their state of health.228

10.14.1 Access to Medical Attention. 

10.14.1.1 Camp Infirmary. Every place of internment shall have an adequate 

infirmary, under the direction of a qualified doctor, where internees may have the attention they 

require, as well as an appropriate diet.229 Isolation wards shall be set aside for cases of 

contagious or mental diseases.230

10.14.1.2 Right of Internees to Present Themselves for Examination. Internees 

may not be prevented from presenting themselves to the medical authorities for examination.231 

The GC appears to contemplate that the internees would have daily sick call in which they could 

present themselves for medical examination, because it provides for internees who are 

undergoing disciplinary punishment to request to attend this inspection.

232 The right of internees 

to present themselves for examination does not mean that the internees must necessarily be 

examined every day by a doctor, nor does it preclude disciplinary punishment if internees 

abusively (on the basis of the doctor’s report) make groundless requests for medical 

examination.233

10.14.1.3 Monthly Medical Inspections. Medical inspections of internees shall be 

made at least once a month.234 Their purpose shall be, in particular, to supervise the general state 

 227 GC art. 90 (“Workers shall receive suitable working outfits, including protective clothing, whenever the nature of 

their work so requires.”).

228 GC art. 81 (“Parties to the conflict who intern protected persons shall be bound to provide free of charge for their 

maintenance, and to grant them also the medical attention required by their state of health.”).

229 GC art. 91 (“Every place of internment shall have an adequate infirmary, under the direction of a qualified 

doctor, where internees may have the attention they require, as well as an appropriate diet.”).

230 GC art. 91 (“Isolation wards shall be set aside for cases of contagious or mental diseases.”).

231 GC art. 91 (“Internees may not be prevented from presenting themselves to the medical authorities for 

examination.”).

232 GC COMMENTARY 401 (“Although the fact is not mentioned in this paragraph [4 of Article 91 of the GC], a daily 

medical inspection will take place in places of internment. This follows, as will be seen further on, from Article 

125. Internees will thus be able to report sick when they are ill, so as to receive medical attention without delay.”). 

Refer to § 10.28.6.3 (Attendance at Daily Medical Inspection and Medical Attention).

233 GC COMMENTARY 495-96 (“It was only logical to consider that the Detaining Power should arrange in every 

place of internment for a daily medical inspection and this paragraph [paragraph 2 of Article 125 of the GC] makes 

this important point quite clear. This does not mean, however, that internees must necessarily be examined every 

day by the doctor. The guards will not be entitled to forbid the internees to present themselves for daily medical 

examination; if the request to go on sick parade turns out to be groundless and upsets the maintenance of discipline, 

the offence may be considered as calling for disciplinary punishment by the commandant of the place of internment 

on the basis of the doctor’s report.”).

234 GC art. 92 (“Medical inspections of internees shall be made at least once a month.”).
700

of health, nutrition, and cleanliness of internees, and to detect contagious diseases, especially 

tuberculosis, malaria, and venereal diseases.235 Such inspections shall include, in particular, the 

checking of weight of each internee and, at least once a year, radioscopic examination.236

10.14.2 Compulsory Medical Treatment. Because internees are subject to the laws in 

force in the territory in which they are detained,237 internees may be ordered to undergo medical 

treatment to the extent that other persons in that territory may be so ordered.

10.14.3 Medical Treatment for Internees. 

10.14.3.1 Persons Requiring Special Treatment. Maternity cases and internees 

suffering from serious diseases, or whose condition requires special treatment, a surgical 

operation, or hospital care, must be admitted to any institution where adequate treatment can be 

given and shall receive care not inferior to that provided for the general population.238

10.14.3.2 Treatment by Medical Personnel of Their Own Nationality. Internees 

shall, for preference, have the attention of medical personnel of their own nationality.239

10.14.3.3 Certificate Recording Treatment. The medical authorities of the 

Detaining Power shall, upon request, issue to every internee who has undergone treatment an 

official certificate showing the nature of his or her illness or injury, and the duration and nature 

of the treatment given.240 A duplicate of this certificate shall be forwarded to the Central 

Information Agency for protected persons.

241

10.14.3.4 Cost of Medical Treatment. Treatment, including the provision of any 

apparatus necessary for the maintenance of internees in good health, particularly dentures and 

other artificial appliances and spectacles, shall be free of charge to the internee.242

10.14.4 Receipt of Medical Shipments. Internees may receive individual parcels and 

 235 GC art. 92 (“Their purpose shall be, in particular, to supervise the general state of health, nutrition and 

cleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases.”).

236 GC art. 92 (“Such inspections shall include, in particular, the checking of weight of each internee and, at least 

once a year, radioscopic examination.”).

237 Refer to § 10.27.1 (Applicability of the Laws in Force to Internees).

238 GC art. 91 (“Maternity cases and internees suffering from serious diseases, or whose condition requires special 

treatment, a surgical operation or hospital care, must be admitted to any institution where adequate treatment can be 

given and shall receive care not inferior to that provided for the general population.”).

239 GC art. 91 (“Internees shall, for preference, have the attention of medical personnel of their own nationality.”).

240 GC art. 91 (“The medical authorities of the Detaining Power shall, upon request, issue to every internee who has 

undergone treatment an official certificate showing the nature of his illness or injury, and the duration and nature of 

the treatment given.”).

241 GC art. 91 (“A duplicate of this certificate shall be forwarded to the Central Agency provided for in Article 

140.”).

242 GC art. 91 (“Treatment, including the provision of any apparatus necessary for the maintenance of internees in 

good health, particularly dentures and other artificial appliances and spectacles, shall be free of charge to the 

internee.”).
701

collective shipments containing medical supplies.243 However, medical supplies are generally to 

be sent in collective shipments so that they may be properly administered by the camp doctors.244

10.14.5 Inquiry in Certain Cases of Death or Serious Injury. In certain cases of death or 

serious injury of an internee, an official inquiry shall be conducted by the Detaining Power.

245

10.15 RELIGIOUS EXERCISE BY INTERNEES

Internees shall enjoy complete latitude in the exercise of their religious duties, including 

attendance at the services of their faith, on condition that they comply with the disciplinary 

routine prescribed by the detaining authorities.246

10.15.1 Premises for Religious Services for Internees. The Detaining Power shall place 

at the disposal of interned persons, of whatever denomination, premises suitable for the holding 

of their religious services.247 The premises where services are held should be sufficiently 

spacious and clean, and should provide effective shelter to those attending services, but need not 

be set aside exclusively for religious services.248

10.15.2 Interned Ministers of Religion. Ministers of religion who are interned shall be 

allowed to minister freely to the members of their community.249 For this purpose, the Detaining 

Power shall ensure their equitable allocation among the various places of internment in which 

there are internees speaking the same language and belonging to the same religion.250 Should 

such ministers be too few in number, the Detaining Power shall provide them with the necessary 

facilities, including means of transport, for moving from one place to another, and they shall be 

authorized to visit any internees who are hospitalized.

251

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

244 Refer to § 10.23.3.2 (Medical Supplies in Relief Shipments).

245 Refer to § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).

246 GC art. 93 (“Internees shall enjoy complete latitude in the exercise of their religious duties, including attendance 

at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining 

authorities.”).

247 GC art. 86 (“The Detaining Power shall place at the disposal of interned persons, of whatever denomination, 

premises suitable for the holding of their religious services.”).

248 GC COMMENTARY 388 (“It does not seem essential that these premises should be set aside exclusively for 

religious services. The parallel text in the Prisoners of War Convention (Article 34, paragraph 2) speaks of 

‘adequate’ premises. In both cases, it should be understood that the premises where services are held should be 

sufficiently spacious and clean and so built as to give effective shelter to those attending the services.”).

249 GC art. 93 (“Ministers of religion who are interned shall be allowed to minister freely to the members of their 

community.”).

250 GC art. 93 (“For this purpose, the Detaining Power shall ensure their equitable allocation amongst the various 

places of internment in which there are internees speaking the same language and belonging to the same religion.”).

251 GC art. 93 (“Should such ministers be too few in number, the Detaining Power shall provide them with the 

necessary facilities, including means of transport, for moving from one place to another, and they shall be authorized 

to visit any internees who are in hospital.”).
702

10.15.2.1 Correspondence by Ministers of Religion. Ministers of religion shall be 

at liberty to correspond on matters concerning their ministry with the religious authorities in the 

country of detention and, as far as possible, with the international religious organizations of their 

faith.252 Such correspondence shall not be considered as forming a part of the quota mentioned 

in Article 107 of the GC.

253 It shall, however, be subject to the provisions of Article 112 of the 

GC.

254 In other words, such correspondence may be censored, but such censorship shall be done 

as quickly as possible.

255

10.15.3 Appointment of Other Ministers or Qualified Laypersons. When internees do not 

have at their disposal the assistance of ministers of their faith, or should these latter be too few in 

number, the local religious authorities of the same faith may appoint, in agreement with the 

Detaining Power, a minister of the internees’ faith or, if such a course is feasible from a 

denominational point of view, a minister of a similar religion or a qualified layperson.

256 The 

latter shall enjoy the facilities granted to the ministry he or she has assumed.257 Persons so 

appointed shall comply with all regulations laid down by the Detaining Power in the interests of 

discipline and security.258

10.16 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES

The Detaining Power shall encourage intellectual, educational, and recreational pursuits, 

and sports and games among internees, while leaving them free to take part in them or not.259 It 

shall take all practicable measures to ensure the exercise thereof, in particular by providing 

suitable premises for such purposes.

260

10.16.1 Voluntariness of the Activities. The Detaining Power should seek to encourage 

the internees in engaging in these activities, while leaving them free to take part or not. For 

example, it would be prohibited to compel internees to listen to propaganda, such as by 

 252 GC art. 93 (“Ministers of religion shall be at liberty to correspond on matters concerning their ministry with the 

religious authorities in the country of detention and, as far as possible, with the international religious organizations 

of their faith.”).

253 GC art. 93 (“Such correspondence shall not be considered as forming a part of the quota mentioned in Article 

107.”). Refer to § 10.23.2.1 (Internee Correspondence Quota).

254 GC art. 93 (“It shall, however, be subject to the provisions of Article 112.”).

255 Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

256 GC art. 93 (“When internees do not have at their disposal the assistance of ministers of their faith, or should these 

latter be too few in number, the local religious authorities of the same faith may appoint, in agreement with the 

Detaining Power, a minister of the internees’ faith or, if such a course is feasible from a denominational point of 

view, a minister of similar religion or a qualified layman.”).

257 GC art. 93 (“The latter shall enjoy the facilities granted to the ministry he has assumed.”).

258 GC art. 93 (“Persons so appointed shall comply with all regulations laid down by the Detaining Power in the 

interests of discipline and security.”).

259 GC art. 94 (“The Detaining Power shall encourage intellectual, educational and recreational pursuits, sports and 

games amongst internees, whilst leaving them free to take part in them or not.”).

260 GC art. 94 (“It shall take all practicable measures to ensure the exercise thereof, in particular by providing 

suitable premises.”).
703

punishing them or giving them harsher conditions of confinement if they do not participate. On 

the other hand, censoring educational or intellectual materials for security reasons or to refrain 

from providing internees with anti-democratic political propaganda would be permissible.261

10.16.2 Education. All possible facilities shall be granted to internees to continue their 

studies or to take up new subjects.262 The education of children and young people shall be

ensured; they shall be allowed to attend schools either within the place of internment or 

outside.263

To advance educational opportunities for internees, the Detaining Power may seek ways 

to encourage and assist them in teaching one another.264

10.16.3 Opportunities for Physical Exercise, Sports, and Outdoor Games. Internees shall 

be given opportunities for physical exercise, sports, and outdoor games.265 For this purpose, 

sufficient open spaces shall be set aside in all places of internment.266 Special playgrounds shall 

be reserved for children and young people.267

10.16.4 Contributions by Sources Apart From the Detaining Power. Apart from the 

Detaining Power, internees may receive assistance from a variety of sources that allow them to 

engage in intellectual, physical, and recreational activities.

For example, relief organizations, including the ICRC, may contribute to the ensuring 

that internees have opportunities for intellectual, physical, and recreational activities.268 In 

addition, internees may receive shipments that are intended to allow them to engage in these 

activities.269 Lastly, the profits from the canteen may be used in this area.270

10.17 INTERNEE LABOR

The rules described in this section govern the use of internee labor. Additional rules 

apply to the use of the labor of protected persons depending on whether they are present in a 

 261 Compare § 9.16.1 (Voluntariness of the Activities).

262 GC art. 94 (“All possible facilities shall be granted to internees to continue their studies or to take up new 

subjects.”).

263 GC art. 94 (“The education of children and young people shall be ensured; they shall be allowed to attend schools 

either within the place of internment or outside.”).

264 Compare § 9.16.2 (Education).

265 GC art. 94 (“Internees shall be given opportunities for physical exercise, sports and outdoor games.”).

266 GC art. 94 (“For this purpose, sufficient open spaces shall be set aside in all places of internment.”).

267 GC art. 94 (“Special playgrounds shall be reserved for children and young people.”).

268 Refer to § 10.33.2 (Access by Relief Societies and Other Organizations).

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

270 Refer to § 10.12.3 (Canteen Management and Profits).
704

belligerent’s home territory or in occupied territory.271

10.17.1 General Rules on Internee Labor. The Detaining Power shall not employ 

internees as workers, unless the internees so desire.272

Employment that, if undertaken under compulsion by a protected person not in 

internment, would involve a breach of Articles 40 or 51 of the GC, and employment on work that

is of a degrading or humiliating character, are in any case prohibited.273

After a working period of six weeks, internees shall be free to give up work at any 

moment, subject to eight days’ notice.274

10.17.2 Compulsory Work for the Benefit of the Internee Community. The first two 

paragraphs of Article 95 of the GC constitute no obstacle to the right of the Detaining Power to 

employ interned doctors, dentists, and other medical personnel in their professional capacity on 

behalf of their fellow internees, or to employ internees for administrative and maintenance work 

in places of internment and to detail such persons for work in the kitchens or for other domestic 

tasks, or to require such persons to undertake duties connected with the protection of internees 

against aerial bombardment or other war risks.

275 Thus, although internees generally may not be 

compelled to work, there is an exception for tasks that benefit the internee community as a 

whole.276

No internee may, however, be required to perform tasks for which he or she is, in the 

opinion of a medical officer, physically unsuited.277

 271 Refer to § 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20 (Labor of 

Protected Persons in Occupied Territory).

272 GC art. 95 (“The Detaining Power shall not employ internees as workers, unless they so desire.”).

273 GC art. 95 (“Employment which, if undertaken under compulsion by a protected person not in internment, would 

involve a breach of Articles 40 or 51 of the present Convention, and employment on work which is of a degrading or 

humiliating character are in any case prohibited.”).

274 GC art. 95 (“After a working period of six weeks, internees shall be free to give up work at any moment, subject

to eight days' notice.”).

275 GC art. 95 (“These provisions constitute no obstacle to the right of the Detaining Power to employ interned 

doctors, dentists and other medical personnel in their professional capacity on behalf of their fellow internees, or to

employ internees for administrative and maintenance work in places of internment and to detail such persons for 

work in the kitchens or for other domestic tasks, or to require such persons to undertake duties connected with the 

protection of internees against aerial bombardment or other war risks.”).

276 GC COMMENTARY 416 (“The commentary on Article 91 showed that internees must for preference be treated by 

medical personnel of their own nationality, and Article 88 refers to detained persons taking part in the protection of 

their quarters. The fact is that nobody could work more zealously on this task than the internees themselves. Such 

tasks represent work of human fellowship which they are bound to carry out on behalf of their companions. If they 

sought to avoid it they would be failing in an elementary duty and it would be right to force them to do it. A similar 

line of argument led to the inclusion of administrative work and domestic tasks (work in the kitchen, cleaning and 

camp maintenance) among the duties which internees may be forced to carry out.”).

277 GC art. 95 (“No internee may, however, be required to perform tasks for which he is, in the opinion of a medical 

officer, physically unsuited.”).
705

In addition, members of the Internee Committee may not be compelled to do other work, 

if the accomplishment of their duties is thereby rendered more difficult.

278

10.17.2.1 Wages and Working Conditions for Internees Permanently Detailed for 

Work on Behalf of the Internee Community. Internees permanently detailed for categories of 

work mentioned in the third paragraph of Article 95 of the GC shall be paid fair wages by the 

Detaining Power.

279 The working conditions and the scale of compensation for occupational 

accidents and diseases to internees thus detailed shall not be inferior to those applicable to work 

of the same nature in the same district.280

10.17.3 Working Conditions. The Detaining Power shall take entire responsibility for all 

working conditions, for medical attention, for the payment of wages, and for ensuring that all 

employed internees receive compensation for occupational accidents and diseases.281 The 

standards prescribed for said working conditions and for compensation shall be in accordance 

with national laws and regulations, and with existing practice; they shall in no case be inferior to 

those obtaining for work of the same nature in the same district.282 

In addition, internees who work shall receive additional rations in proportion to the kind 

of labor that they perform.283

10.17.4 Wage Agreement With Internees. Wages for work done shall be determined on 

an equitable basis by special agreements between the internees, the Detaining Power, and, if the 

case arises, employers other than the Detaining Power, due regard being paid to the obligation of 

the Detaining Power to provide for free maintenance of internees, and for the medical attention 

that their state of health may require.284

10.17.5 Labor Detachments of Internees. All labor detachments shall remain part of, and 

dependent upon, a place of internment.285 The competent authorities of the Detaining Power and 

 278 Refer to § 10.22.3.1 (Limitations on Other Work Assignments).

279 GC art. 95 (“Internees permanently detailed for categories of work mentioned in the third paragraph of this 

Article, shall be paid fair wages by the Detaining Power.”).

280 GC art. 95 (“The working conditions and the scale of compensation for occupational accidents and diseases to 

internees thus detailed, shall not be inferior to those applicable to work of the same nature in the same district.”).

281 GC art. 95 (“The Detaining Power shall take entire responsibility for all working conditions, for medical 

attention, for the payment of wages, and for ensuring that all employed internees receive compensation for 

occupational accidents and diseases.”).

282 GC art. 95 (“The standards prescribed for the said working conditions and for compensation shall be in 

accordance with the national laws and regulations, and with the existing practice; they shall in no case be inferior to 

those obtaining for work of the same nature in the same district.”).

283 Refer to § 10.13.1.2 (Additional Food for Certain Groups).

284 GC art. 95 (“Wages for work done shall be determined on an equitable basis by special agreements between the 

internees, the Detaining Power, and, if the case arises, employers other than the Detaining Power, due regard being 

paid to the obligation of the Detaining Power to provide for free maintenance of internees and for the medical

attention which their state of health may require.”).

285 GC art. 96 (“All labour detachments shall remain part of and dependent upon a place of internment.”).
706

the commandant of a place of internment shall be responsible for the observance of the

provisions of the GC in a labor detachment.

286

The commandant shall keep an up-to-date list of the labor detachments subordinate to 

him or her, and shall communicate it to the delegates of the Protecting Power, of the ICRC, and 

of other humanitarian organizations who may visit the places of internment.287

10.18 INTERNEES’ ARTICLES OF PERSONAL USE

10.18.1 Internees’ Articles of Personal Use. Internees shall be permitted to retain articles 

of personal use.288

Internees, however, are not entitled to retain items that could be put to a use prejudicial to 

the legitimate interests of the Detaining Power, such as items that may pose a risk to security 

(e.g., knives or devices that may be used as weapons) or items that may facilitate escape (e.g., 

flares, flare pistols, compasses, maps, radios, or cell phones).

289

10.18.2 Articles of Personal or Sentimental Value. Articles that have “above all” a 

personal or sentimental value may not be taken away.290 Items that may otherwise be 

legitimately impounded (e.g., for security reasons) are not precluded from being impounded 

because of their personal or sentimental value to the internee.

291 

10.18.3 Family or Identity Documents for Internees. Family or identity documents in the 

possession of internees may not be taken away without a receipt being given.292 At no time shall 

 286 GC art. 96 (“The competent authorities of the Detaining Power and the commandant of a place of internment 

shall be responsible for the observance in a labour detachment of the provisions of the present Convention.”).

287 GC art. 96 (“The commandant shall keep an up-to-date list of the labour detachments subordinate to him and 

shall communicate it to the delegates of the Protecting Power, of the International Committee of the Red Cross and 

of other humanitarian organizations who may visit the places of internment.”).

288 GC art. 97 (“Internees shall be permitted to retain articles of personal use.”).

289 GC COMMENTARY 420 (“Cameras should no doubt be regarded as an exception [to the permitted articles of 

personal use], because of the Detaining Power’s special interest in removing anything which might promote 

espionage or perhaps be used for unfavourable propaganda. ... The Detaining Power is free, however, to protect 

itself against efforts to put the resources retained by the internees—and above all their financial resources—to a use 

prejudicial to its interests.”).

290 GC art. 97 (“Articles which have above all a personal or sentimental value may not be taken away.”).

291 GC COMMENTARY 422 (“The essential part of the clause is the words ‘above all’. The clause formulates an 

exception to the right of the Detaining Power to take articles of value from internees; that exception applies to 

articles which have above all a personal or sentimental value. That means that the importance attached to their 

possession does not depend on their commercial value, but rather on what they represent in the sentimental sphere. 

A wedding ring would be one such example --a plain golden ring which costs little; its sale would not furnish the 

owner with large resources with which to make preparations for an escape or to take part in subversive propaganda. 

On the other hand jewels of great commercial value may be taken away, in spite of their sentimental value. It will 

be for the Detaining Power to judge in all fairness the appropriate course to take. It must be in accordance with the 

stipulation of paragraph 1 (in accordance with established procedure and against a receipt).”).

292 GC art. 97 (“Family or identity documents in the possession of internees may not be taken away without a receipt 

being given.”).
707

internees be left without identity documents.293 If they have none, they shall be issued special 

documents drawn up by the detaining authorities, which will serve as their identity papers until 

the end of their internment.294

10.19 FINANCIAL RESOURCES OF INTERNEES

10.19.1 Money and Valuables in the Internee’s Possession. Monies, checks, bonds, etc., 

and valuables in the possession of internees may not be taken from them, except in accordance 

with established procedure.295 Detailed receipts shall be given for such valuables.

296

The amounts shall be paid into the account of every internee, as provided for in Article 

98 of the GC.

297 Such amounts may not be converted into any other currency unless legislation 

in force in the territory in which the owner is interned so requires or the internee gives his or her 

consent.298

10.19.1.1 Pocket Money for Purchases. Internees may keep on their persons a 

certain amount of money, in cash or in the form of purchase coupons, to enable them to make 

purchases.299 For example, internees could use this money or scrip to purchase items at the 

canteen.300

For security reasons, the amount of money retained by internees generally will be 

small.301

10.19.2 Internee Allowances. All internees shall receive regular allowances, sufficient to 

enable them to purchase goods and articles, such as tobacco, toilet requisites, etc.302 Such 

 293 GC art. 97 (“At no time shall internees be left without identity documents.”).

294 GC art. 97 (“If they have none, they shall be issued with special documents drawn up by the detaining authorities, 

which will serve as their identity papers until the end of their internment.”).

295 GC art. 97 (“Monies, cheques, bonds, etc., and valuables in their possession may not be taken from them except 

in accordance with established procedure.”).

296 GC art. 97 (“Detailed receipts shall be given therefor.”).

297 GC art. 97 (“The amounts shall be paid into the account of every internee as provided for in Article 98.”).

298 GC art. 97 (“Such amounts may not be converted into any other currency unless legislation in force in the 

territory in which the owner is interned so requires or the internee gives his consent.”).

299 GC art. 97 (“Internees may keep on their persons a certain amount of money, in cash or in the shape of purchase 

coupons, to enable them to make purchases.”).

300 Refer to § 10.12 (Canteens for Internees).

301 GC COMMENTARY 424 (“It follows that the amount of money in question will be fairly small. If the Detaining 

Power considers that it must for security reasons limit very strictly the amount of cash held by the internees, it 

should provide them with purchase coupons of sufficient value to enable them to make purchases in the canteens it 

runs.”).

302 GC art. 98 (“All internees shall receive regular allowances, sufficient to enable them to purchase goods and 

articles, such as tobacco, toilet requisites, etc.”).
708

allowances may take the form of credits or purchase coupons.303

Furthermore, internees may receive allowances from the Power to which they owe 

allegiance, the Protecting Powers, the organizations that may assist them, or their families, as 

well as the income on their property in accordance with the law of the Detaining Power.304

The amount of allowances granted by the Power to which an internee owes allegiance 

shall be the same for each category of internees (e.g., infirm, sick, pregnant women), but may not 

be allocated by that Power or distributed by the Detaining Power on the basis of discrimination 

between internees that is prohibited by Article 27 of the GC.

305

10.19.3 Internee Accounts. The Detaining Power shall open a regular account for every 

internee, to which shall be credited:

• allowances named in Article 98 of the GC;

• wages earned;

• remittances received; and

• such sums taken from the internee as may be available under the legislation in force in 

the territory in which he or she is interned.306

10.19.3.1 Drawing Upon Accounts. Internees may draw from their accounts the 

amounts necessary for their personal expenses, within the limits fixed by the Detaining Power.307

Internees shall be granted all facilities consistent with the legislation in force in such 

territory to make remittances to their families and to other dependents.308 

10.19.3.2 Account Statement. Internees shall at all times be afforded reasonable 

 303 GC art. 98 (“Such allowances may take the form of credits or purchase coupons.”).

304 GC art. 98 (“Furthermore, internees may receive allowances from the Power to which they owe allegiance, the 

Protecting Powers, the organizations which may assist them, or their families, as well as the income on their 

property in accordance with the law of the Detaining Power.”).

305 GC art. 98 (“The amount of allowances granted by the Power to which they owe allegiance shall be the same for 

each category of internees (infirm, sick, pregnant women, etc.), but may not be allocated by that Power or 

distributed by the Detaining Power on the basis of discriminations between internees which are prohibited by Article 

27 of the present Convention.”).

306 GC art. 98 (“The Detaining Power shall open a regular account for every internee, to which shall be credited the 

allowances named in the present Article, the wages earned and the remittances received, together with such sums 

taken from him as may be available under the legislation in force in the territory in which he is interned.”).

307 GC art. 98 (“They may draw from their accounts the amounts necessary for their personal expenses, within the 

limits fixed by the Detaining Power.”).

308 GC art. 98 (“Internees shall be granted all facilities consistent with the legislation in force in such territory to 

make remittances to their families and to other dependants.”).
709

facilities for consulting and obtaining copies of their accounts.309 A statement of accounts shall 

be furnished to the Protecting Power on request, and shall accompany the internee in case of 

transfer.310

10.19.3.3 Settlement of Account on Release or Repatriation. On release or 

repatriation, internees shall be given all articles, monies, or other valuables taken from them 

during internment and shall receive in currency the balance of any credit to their accounts kept in 

accordance with Article 98 of the GC, with the exception of any articles or amounts withheld by 

the Detaining Power by virtue of its legislation in force.311 If the property of an internee is so 

withheld, the owner shall receive a detailed receipt.312

10.20 ADMINISTRATION OF PLACES OF INTERNMENT AND DISCIPLINE

10.20.1 Responsible Officer and Staff. Every place of internment shall be put under the 

authority of a responsible officer, chosen from the regular military forces or the regular civil 

administration of the Detaining Power.313

The officer in charge of the place of internment must have in his or her possession a copy 

of the GC in the official language, or one of the official languages, of his or her country and shall 

be responsible for its application.314 The staff in control of internees shall be instructed in the 

provisions of the GC and of the administrative measures adopted to ensure its application.315

10.20.2 Posting of Convention and Camp Orders. The text of the GC and the texts of 

special agreements concluded under the GC shall be posted inside the place of internment, in a 

language that the internees understand, or shall be in the possession of the Internee 

Committee.316

 309 GC art. 98 (“They shall at all times be afforded reasonable facilities for consulting and obtaining copies of their 

accounts.”).

310 GC art. 98 (“A statement of accounts shall be furnished to the Protecting Power on request, and shall accompany 

the internee in case of transfer.”).

311 GC art. 97 (“On release or repatriation, internees shall be given all articles, monies or other valuables taken from 

them during internment and shall receive in currency the balance of any credit to their accounts kept in accordance 

with Article 98, with the exception of any articles or amounts withheld by the Detaining Power by virtue of its 

legislation in force.”).

312 GC art. 97 (“If the property of an internee is so withheld, the owner shall receive a detailed receipt.”).

313 GC art. 99 (“Every place of internment shall be put under the authority of a responsible officer, chosen from the 

regular military forces or the regular civil administration of the Detaining Power.”).

314 GC art. 99 (“The officer in charge of the place of internment must have in his possession a copy of the present 

Convention in the official language, or one of the official languages, of his country and shall be responsible for its 

application.”).

315 GC art. 99 (“The staff in control of internees shall be instructed in the provisions of the present Convention and 

of the administrative measures adopted to ensure its application.”).

316 GC art. 99 (“The text of the present Convention and the texts of special agreements concluded under the said 

Convention shall be posted inside the place of internment, in a language which the internees understand, or shall be 

in the possession of the Internee Committee.”).
710

Regulations, orders, notices, and publications of every kind shall be communicated to the 

internees and posted inside the places of internment, in a language that the internees

understand.317

Every order and command addressed to internees individually must likewise be given in a 

language that they understand.318

10.20.3 Humane Disciplinary Regime. The disciplinary regime in places of internment 

shall be consistent with humanitarian principles, and shall in no circumstances include 

regulations imposing on internees any physical exertion dangerous to their health or involving 

physical or moral victimization.

319

10.20.3.1 Prohibition Against Tattooing or Imprinting Signs or Markings on the 

Body. Identification by tattooing or imprinting signs or markings on the body is prohibited.320

10.20.3.2 Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill, 

Military Drill and Manuevers, or the Reduction of Food Rations. In particular, prolonged 

standing and roll-calls, punishment drill, military drill and maneuvers, or the reduction of food 

rations are prohibited.321

10.20.4 Use of Force to Maintain Order and to Prevent Escape. As with POWs, the use 

of weapons against protected persons, 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.322 For example, internees should not be fired upon if they are 

apprehended within the camp limits while making preparations to escape, and there is no risk of

escape or harm to anyone.

It should be noted that, although the GC has no provision corresponding to Article 42 of 

the GPW, the above principle is equally valid in the internee context.

10.20.4.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Nonlethal weapons may be employed to control rioting protected persons or to prevent their escape. 

In particular, the use of riot control agents to control rioting protected persons is not 

 317 GC art. 99 (“Regulations, orders, notices and publications of every kind shall be communicated to the internees 

and posted inside the places of internment, in a language which they understand.”).

318 GC art. 99 (“Every order and command addressed to internees individually, must likewise be given in a language 

which they understand.”).

319 GC art. 100 (“The disciplinary regime in places of internment shall be consistent with humanitarian principles, 

and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their 

health or involving physical or moral victimization.”).

320 GC art. 100 (“Identification by tattooing or imprinting signs or markings on the body, is prohibited.”).

321 GC art. 100 (“In particular, prolonged standing and roll-calls, punishment drill, military drill and manoeuvres, or 

the reduction of food rations, are prohibited.”).

322 Compare § 9.22.6 (Use of Force to Maintain Order and to Prevent Escape).
711

prohibited.323

If the use of deadly force is warranted and authorized against protected persons, there is 

no legal requirement to employ non-lethal weapons before resort to deadly force.

324

10.21 INTERNEE PETITIONS, COMPLAINTS, AND REPORTS ABOUT CONDITIONS OF INTERNMENT

10.21.1 Internee Right to Present Petitions and Complaints. Internees shall have the right 

to present to the authorities in whose power they are, any petition with regard to the conditions of 

internment to which they are subjected.325 The commandant of an internment facility may issue 

regulations that establish procedures about how internees are to exercise this right to petition.326 

Internees shall also have the right to apply without restriction through the Internee 

Committee or, if they consider it necessary, directly to the representatives of the Protecting 

Power, in order to indicate to them any points on which they may have complaints to make with 

regard to the conditions of internment.327 

10.21.1.1 Making Requests and Complaints to the ICRC. Such complaints may 

also be made to the delegates of the ICRC, who enjoy the same prerogatives of access to 

internees as the representatives of the Protecting Power.

328 In the past, the ICRC has been able 

to take appropriate measures besides merely forwarding the complaint to the Power on which the 

POWs depend, including measures on a confidential basis that help to improve the situation of 

internees.

329

10.21.2 Communication of Petitions and Complaints. Such petitions and complaints 

shall be transmitted forthwith and without alteration, and even if the latter are recognized to be 

unfounded, they may not occasion any punishment.330

10.21.2.1 Review and Censorship of Requests and Complaints by the Detaining 

 323 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

324 Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly 

Force Is Warranted).

325 GC art. 101 (“Internees shall have the right to present to the authorities in whose power they are, any petition 

with regard to the conditions of internment to which they are subjected.”).

326 GC COMMENTARY 434 (“The Convention does not state in detail the procedure for submitting petitions, but 

obviously it must be compatible with the normal requirements of discipline and the administration of the place of 

internment and petitions must not be used for purposes other than those arising under the Convention. It will be for 

the commandant of the place of internment to issue regulations concerning the exercise of this right, and particularly 

to say whether petitions can be submitted orally or in writing and in what form.”).

327 GC art. 101 (“They shall also have the right to apply without restriction through the Internee Committee or, if 

they consider it necessary, direct to the representatives of the Protecting Power, in order to indicate to them any 

points on which they may have complaints to make with regard to the conditions of internment.”).

328 Refer to § 10.33.1.2 (ICRC Delegates Enjoying the Same Prerogatives of Access).

329 Compare § 9.23.1.1 (Making Requests and Complaints to the ICRC).

330 GC art. 101 (“Such petitions and complaints shall be transmitted forthwith and without alteration, and even if the 

latter are recognized to be unfounded, they may not occasion any punishment.”).
712

Power. Although petitions and complaints shall be transmitted forthwith and without alteration, 

the Detaining Power has the right to examine and censor petitions and complaints for security 

reasons.331 Communications for transmittal may be examined to determine whether they 

legitimately contain petitions or complaints.

332 Security review and censorship must be 

conducted in accordance with the general rules on censoring internee correspondence.

333

10.21.2.2 No Punishment for Making Complaints. Even if the petitions and 

complaints are recognized to be unfounded, they may not occasion any punishment.334 In any 

event, as in the case of POWs, it could be contrary to internees’ interests to abuse this right by 

making groundless complaints because complaints that are justified might not, as a result, 

receive the appropriate attention.335

10.21.3 Periodic Reports by the Internee Committees. Periodic reports on the situation in 

places of internment and as to the needs of the internees may be sent by the Internee Committees 

to the representatives of the Protecting Powers.336 Internee Committees have discretion about 

how and when to submit their reports.337 The Detaining Power may subject these reports to 

security review and censorship to ensure that these reports are not misused.

338

10.22 INTERNEE COMMITTEES

10.22.1 Election of Internee Committees. In every place of internment, the internees 

shall freely elect, by secret ballot every six months, the members of a Committee empowered to 

represent them before the Detaining and the Protecting Powers, the ICRC, and any other 

 331 See 1956 FM 27-10 (Change No. 1 1976) ¶308b (“The Detaining Power has the right to examine and censor the 

complaints, petitions, and reports referred to above in the same manner as correspondence addressed to internees or 

dispatched by them. It may also examine such complaints and reports to the representatives of the Protecting Power 

to verify that they are what they purport to be and to delete matter not constituting either a complaint or a report 

within the meaning of the foregoing provision.”).

332 GC COMMENTARY 435-36 (“The transmission ‘forthwith’ of complaints and petitions and the absence of 

punishment even when they are not well founded is in conformity with the procedure established with regard to 

prisoners of war during the two world wars. The Fourth Convention of 1949 has introduced a particularly important 

idea by stating that the transmission shall take place ‘without alteration’. This wording was rejected by the authors 

of the Third Geneva Convention in order to respect the Detaining Power’s right of censorship. The discussions at 

the Diplomatic Conference concerning the Fourth Convention showed that there was a specific wish to avoid any 

suggestion of censorship with regard to civilians. It was nevertheless said that some supervision by the Detaining 

Power must be allowed ‘for security reasons’.”).

333 Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

334 GC art. 101 (“Such petitions and complaints shall be transmitted forthwith and without alteration, and even if the 

latter are recognized to be unfounded, they may not occasion any punishment.”).

335 Compare § 9.23.2.2 (No Punishment for Making Complaints).

336 GC art. 101 (“Periodic reports on the situation in places of internment and as to the needs of the internees, may be 

sent by the Internee Committees to the representatives of the Protecting Powers.”).

337 GC COMMENTARY 436 (“Some of the Government Experts who met in 1947 had envisaged making it obligatory 

to transmit periodically to the Protecting Power reports drafted on a model form. This opinion did not prevail in the 

sense that it was given mandatory form; the idea of periodical reports was retained, but the Convention leaves it to 

the Internee Committees to submit their reports when and how they think fit.”).

338 Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).
713

organization that may assist them.339 The members of the Committee shall be eligible for reelection.340 

10.22.1.1 Approval of Internee Committee Members by the Detaining Authorities. 

Internees so elected shall enter upon their duties after their election has been approved by the 

detaining authorities.341 The reasons for any refusals or dismissals shall be communicated to the 

Protecting Powers concerned.342

10.22.2 Duties of Internee Committees. Internee Committees shall further the physical, 

spiritual, and intellectual well-being of the internees.343 Internee Committees have duties similar 

to the duties of POW Representatives.344

The Internee Committee’s general duties imply that the Internee Committee will 

undertake a variety of activities to ensure that internees receive proper treatment by the 

Detaining Power and to advance their welfare, even activities that are not specified in the GC as 

constituting their duties.

10.22.2.1 Internee Committees and Mutual Assistance Among the Internees. In 

case the internees decide, in particular, to organize a system of mutual assistance among

themselves, this organization would be within the competence of the Internee Committees, in 

addition to the special duties entrusted to them under other provisions of the GC.345 This 

provision of the GC is based on experience during World War II, when camp leaders allowed 

POWs to assist one another.346

 339 GC art. 102 (“In every place of internment, the internees shall freely elect by secret ballot every six months, the 

members of a Committee empowered to represent them before the Detaining and the Protecting Powers, the 

International Committee of the Red Cross and any other organization which may assist them.”).

340 GC art. 102 (“The members of the Committee shall be eligible for re-election.”).

341 GC art. 102 (“Internees so elected shall enter upon their duties after their election has been approved by the 

detaining authorities.”).

342 GC art. 102 (“The reasons for any refusals or dismissals shall be communicated to the Protecting Powers 

concerned.”).

343 GC art. 103 (“The Internee Committees shall further the physical, spiritual and intellectual well-being of the 

internees.”).

344 GC COMMENTARY 441 (“This general clause could therefore be regarded as giving the Internee Committees the 

right to take any action likely to further the internees' well-being. In the same way as the camp leader in the 

prisoner-of-war camp enjoys considerable latitude in assisting his comrades and is allowed to correspond with relief 

organizations, subscribe to newspapers, organize concerts and theatricals, initiate study courses, set up a legal advice 

bureau, transmit legal documents and suggest the sending to hospital or repatriation of certain men, so the Internee 

Committees have the general task of ensuring the application of the Convention on behalf of their fellowinternees.”). Compare § 9.24.3 (Duties of POW Representatives).

345 GC art. 103 (“In case the internees decide, in particular, to organize a system of mutual assistance amongst 

themselves, this organization would be within the competence of the Committees in addition to the special duties 

entrusted to them under other provisions of the present Convention.”).

346 GC COMMENTARY 441 (“The experience of two world wars has shown that the activities of the camp leaders 

have made it possible for the poorest of prisoners of war to be helped by their own comrades. In some cases the 

camp leader organized collections and his office became a real social welfare bureau. The second paragraph adapts 
714

10.22.2.2 Other Specific Duties. In addition to the general duties that the GC 

imposes on the Internee Committees, the GC also imposes specific duties on the Internee 

Committees in the following matters:

• managing the distribution of collective relief;347

• assisting in the transport of the internees’ community property and luggage in cases of 

transfers of internees;

348

• receiving parcels and remittances of money for internees undergoing disciplinary 

punishment, and handing over to the infirmary any perishable goods;349

• checking on the management of the canteen and its special fund;

350

• transmitting complaints and petitions, and making periodic reports on the needs of 

internees;

351

• retaining a copy of the GC and any applicable special agreements under the GC, if a copy 

is not publicly posted;352

• monitoring decisions announced from any disciplinary proceeding against an internee;353

and

• receiving information about all judicial proceedings against internees whom they 

represent, and of their result.354

10.22.3 Prerogatives of Internee Committees. In order to accomplish their duties, 

members of Internee Committtees are afforded certain prerogatives.

10.22.3.1 Limitations on Other Work Assignments. Members of Internee 

Committees shall not be required to perform any other work, if the accomplishment of their 

 

the results of this experience to the case of internees and in particular gives the Internee Committees the task of 

organizing a mutual assistance scheme. In view of the variation in conditions and resources among the internees, 

such a scheme can be very useful, for among them there will certainly be heads of family who, in losing their normal 

work, will have left their dear ones in serious difficulty.”).

347 Refer to § 10.23.3.4 (Collective Relief for Internees).

348 Refer to § 10.30.3.3 (Disposition of Community Property and Remaining Property).

349 Refer to § 10.28.6.4 (Reading, Writing, Correspondence, and Packages).

350 Refer to § 10.12.3 (Canteen Management and Profits).

351 Refer to § 10.21 (Internee Petitions, Complaints).

352 Refer to § 10.20.2 (Posting of Convention and Camp Orders).

353 Refer to § 9.27.3 (Rights of POWs in Disciplinary Proceedings).

354 Refer to § 10.29.1 (Information to Internee Committees).
715

duties is thereby rendered more difficult.355 Because internees are generally exempted from 

compulsory work, this means that members of Internee Committees are generally exempted from 

maintenance work.356 

10.22.3.2 Assistants for the Members of Internee Committtees. Members of 

Internee Committees may appoint from among the internees such assistants as they may 

require.357 

10.22.3.3 Material Facilities, Including Certain Freedom of Movement. All 

material facilities shall be granted to members of Internee Committees, particularly a certain 

freedom of movement necessary for the accomplishment of their duties (e.g., visits to labor 

detachments, receipt of supplies).358 For example, members of Internee Committees may need to 

go to stations or other arrival points where relief supplies are sent.359

10.22.3.4 Facilities for Communication. All facilities shall likewise be accorded 

to members of Internee Committees for communication by post and telegraph with the detaining 

authorities, the Protecting Powers, the ICRC and their delegates, and the organizations that give 

assistance to internees.360 Internee Committee members in labor detachments shall enjoy similar 

facilities for communication with their Internee Committee in the principal place of 

internment.361 Such communications shall not be limited nor considered as forming a part of the 

quota mentioned in Article 107 of the GC.

362 

 355 GC art. 104 (“Members of Internee Committees shall not be required to perform any other work, if the 

accomplishment of their duties is rendered more difficult thereby.”).

356 See GC COMMENTARY 442-43 (“The desire to make this Convention parallel to the Prisoners of War Convention 

has led in this paragraph to a somewhat illogical result, which was pointed out during the discussions in Geneva. In 

the case of prisoners of war who may be made to work under the provisions of the Convention, it is reasonable that 

camp leaders should be given exemption; but is a similar provision necessary in the case of civilians who are 

covered by Article 95 stating that they may not be compelled to work? The reply was that Article 95 also contains a 

clause exempting maintenance work in the camp, which internees may be compelled to do, so that paragraph 1 

would be justified as referring to this.”). Refer to § 10.17 (Internee Labor).

357 GC art. 104 (“Members of Internee Committees may appoint from amongst the internees such assistants as they 

may require.”).

358 GC art. 104 (“All material facilities shall be granted to them, particularly a certain freedom of movement 

necessary for the accomplishment of their duties (visits to labour detachments, receipt of supplies, etc.).”).

359 GC COMMENTARY 443 (“It should be noted, with regard to the ‘freedom of movement’ which is mentioned, that 

the text says ‘a certain freedom’, not ‘complete freedom’. Article 3 of the Draft Rules concerning Collective Relief 

annexed to the Convention in a way provides a commentary on this provision by stating that members of Internee 

Committees shall be permitted to go to stations or other arrival points near their place of internment where the relief 

supplies are sent.”).

360 GC art. 104 (“All facilities shall likewise be accorded to members of Internee Committees for communication by 

post and telegraph with the detaining authorities, the Protecting Powers, the International Committee of the Red 

Cross and their delegates, and with the organizations which give assistance to internees.”).

361 GC art. 104 (“Committee members in labour detachments shall enjoy similar facilities for communication with 

their Internee Committee in the principal place of internment.”).

362 GC art. 104 (“Such communications shall not be limited, nor considered as forming a part of the quota mentioned 

in Article 107.”). Refer to § 10.23.2 (Internees’ Correspondence Rights and Quota).
716

Censorship of communications with the Protecting Powers, ICRC, etc., is not prohibited, 

but the Detaining Power should ensure that delays do not occur to the disadvantage of the 

internees.

363

10.22.3.5 Turnover for Successor Members of the Internee Committee Upon 

Transfer. Members of Internee Committees who are transferred shall be allowed a reasonable 

time to acquaint their successors with current affairs.364

10.23 INTERNEE CORRESPONDENCE AND RELIEF SHIPMENTS

Internees may send and receive mail and relief shipments, subject to security 

requirements. In addition, internees benefit from certain postage exemptions.

10.23.1 Internment, Health, or Transfer Card. As soon as he or she is interned, or at the 

latest not more than one week after his or her arrival in a place of internment, and likewise in 

cases of sickness or transfer to another place of internment or to a hospital, every internee shall 

be enabled to send direct to his or her family, on the one hand, and to the Central Information 

Agency for protected persons, on the other, an internment card that is similar, if possible, to the 

model annexed to the GC (GC Annex III.I), informing his or her relatives of his or her detention, 

address, and state of health.365 

These cards shall be forwarded as rapidly as possible and may not be delayed in any 

way.366

10.23.2 Internees’ Correspondence Rights and Quota. Internees shall be allowed to send 

and receive letters and cards.367 

10.23.2.1 Internee Correspondence Quota. If the Detaining Power deems it 

necessary to limit the number of letters and cards sent by each internee, this number shall not be 

fewer than two letters and four cards monthly; these letters and cards shall be drawn up so as to 

conform as closely as possible to the models annexed to the GC (GC Annexes III.II & III.III).

368 

 363 GC COMMENTARY 444 (“It is not stated that these communications are free from censorship. However, the 

granting of all facilities lays an obligation on the Detaining Power, if it subjects this correspondence to censorship, 

to ensure that delays do not occur to the disadvantage of the internees.”).

364 GC art. 104 (“Members of Internee Committees who are transferred shall be allowed a reasonable time to 

acquaint their successors with current affairs.”).

365 GC art. 106 (“As soon as he is interned, or at the latest not more than one week after his arrival in a place of 

internment, and likewise in cases of sickness or transfer to another place of internment or to a hospital, every 

internee shall be enabled to send direct to his family, on the one hand, and to the Central Agency provided for by 

Article 140, on the other, an internment card similar, if possible, to the model annexed to the present Convention, 

informing his relatives of his detention, address and state of health.”).

366 GC art. 106 (“The said cards shall be forwarded as rapidly as possible and may not be delayed in any way.”).

367 GC art. 107 (“Internees shall be allowed to send and receive letters and cards.”).

368 GC art. 107 (“If the Detaining Power deems it necessary to limit the number of letters and cards sent by each 

internee, the said number shall not be less than two letters and four cards monthly; these shall be drawn up so as to 

conform as closely as possible to the models annexed to the present Convention.”).
717

If limitations must be placed on the correspondence addressed to internees, they may be 

ordered only by the Power to which such internees owe allegiance, possibly at the request of the 

Detaining Power.

369 If the Detaining Power can censor and transport more than the minimum 

stated, in a reasonable time-frame, it should permit more correspondence.370 

10.23.2.2 No Delay in Correspondence for Disciplinary Reasons. Such letters 

and cards must be conveyed with reasonable dispatch; they may not be delayed or retained for 

disciplinary reasons.371

10.23.2.3 More Rapid Means of Correspondence in Appropriate Cases. Internees 

who have been a long time without news, or who find it impossible to receive news from their 

relatives, or to give them news by the ordinary postal route, as well as those who are at a 

considerable distance from their homes, shall be allowed to send telegrams, the charges being 

paid by them in the currency at their disposal.372 Internees shall likewise benefit from this 

provision in cases that are recognized to be urgent.373 

More modern means of communication, such as email, may be considered for internee 

correspondence, as appropriate.

374

10.23.2.4 Language of Internee Correspondence. As a rule, internees’ mail shall 

be written in their own language.375 The parties to the conflict may authorize correspondence in 

other languages.376

10.23.3 Receipt of Individual and Collective Relief Shipments for Internees. Internees 

shall be allowed to receive, by post or by any other means, individual parcels or collective 

shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and 

 369 GC art. 107 (“If limitations must be placed on the correspondence addressed to internees, they may be ordered 

only by the Power to which such internees owe allegiance, possibly at the request of the Detaining Power.”).

370 See GC COMMENTARY 449 (“The minimum of two letters and four cards per month laid down by the Convention 

seems to be best suited to the possibilities of rapid censorship. This is the minimum which, after representations by 

the International Committee of the Red Cross, most of the belligerents had accepted from December 1940 onwards. 

It remained the same until the end of hostilities. The results of this experience are embodied in the Convention, but 

it goes without saying that these figures represent only a minimum and that if it can be done without overtaxing the 

normal capacity of the postal service they can be exceeded.”).

371 GC art. 107 (“Such letters and cards must be conveyed with reasonable despatch; they may not be delayed or 

retained for disciplinary reasons.”).

372 GC art. 107 (“Internees who have been a long time without news, or who find it impossible to receive news from 

their relatives, or to give them news by the ordinary postal route, as well as those who are at a considerable distance 

from their homes, shall be allowed to send telegrams, the charges being paid by them in the currency at their 

disposal.”).

373 GC art. 107 (“They shall likewise benefit by this provision in cases which are recognized to be urgent.”).

374 Refer to § 8.10.3 (Communication With Family).

375 GC art. 107 (“As a rule, internees’ mail shall be written in their own language.”).

376 GC art. 107 (“The Parties to the conflict may authorize correspondence in other languages.”).
718

objects of a devotional, educational, or recreational character that may meet their needs.377 Such 

shipments shall in no way free the Detaining Power from the obligations imposed upon it by 

virtue of the GC.378 

Should military necessity require the quantity of such shipments to be limited, due notice 

thereof shall be given to the Protecting Power and to the ICRC, or to any other organization 

giving assistance to the internees and responsible for the forwarding of such shipments.379 Such 

a case of military necessity may be, for example, when military operations could be hindered 

through the blocking of means of communication by large consignments of relief supplies.380 

10.23.3.1 Separation of Books From Other Relief Supplies. Parcels of clothing 

and foodstuffs may not include books.

381 Books should be separated because the time required 

for censorship of books would likely delay the distribution of other relief supplies.

382

10.23.3.2 Medical Supplies in Relief Shipments. Medical relief supplies shall, as a 

rule, be sent in collective parcels.383 This rule is meant to ensure that medical supplies can be 

administered by the camp doctors and not by the internees themselves without medical advice.384 

However, this rule would not prohibit, in exceptional cases, for example, special medication 

being sent from family members to an internee.385

10.23.3.3 Special Agreements Concerning Relief Shipments. The conditions for 

 377 GC art. 108 (“Internees shall be allowed to receive, by post or by any other means, individual parcels or 

collective shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and objects of a 

devotional, educational or recreational character which may meet their needs.”).

378 GC art. 108 (“Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by 

virtue of the present Convention.”).

379 GC art. 108 (“Should military necessity require the quantity of such shipments to be limited, due notice thereof 

shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any other 

organization giving assistance to the internees and responsible for the forwarding of such shipments.”).

380 GC COMMENTARY 454-55 (“The Detaining Power may only limit the quantity of shipments for reasons of 

military necessity. This should be understood to mean cases where operations may be hindered through the 

blocking of means of communication by large consignments of relief supplies. In that case, the Protecting Power 

and the relief societies must be notified; the societies must indeed be able to regulate the frequency of consignments 

themselves and thus avoid perishable goods being held up. In the case of the Protecting Power, the notification is to 

enable it to discuss whether the restrictive measures are justified; as the military operations develop, the measures in 

any case must only be temporary and can be justified only by exceptional strain on transport or communications.”).

381 GC art. 108 (“Parcels of clothing and foodstuffs may not include books.”).

382 See GC COMMENTARY 455 (“Parcels of clothing and foodstuff must not contain books, so that they will not be 

delayed for censorship, ... .”).

383 GC art. 108 (“Medical relief supplies shall, as a rule, be sent in collective parcels.”).

384 GC COMMENTARY 455 (“[M]edical supplies, as a rule, will only be sent in collective parcels. It would, indeed, 

be dangerous to let the internees themselves decide what medicaments to use. For preference they should only be 

used on medical advice.”).

385 GC COMMENTARY 455 footnote 2 (“‘As a rule’ was inserted [into the GC] because it was not wished to prohibit, 

as an exceptional case, the inclusion in a family parcel of a medicament required because of the state of health of the 

recipient and which might not be included in collective medical relief.”).
719

the sending of individual parcels and collective shipments shall, if necessary, be the subject of 

special agreements between the Powers concerned, which may in no case delay the receipt by the 

internees of relief supplies.386 

10.23.3.4 Collective Relief for Internees. In the absence of special agreements 

between parties to the conflict regarding the conditions for the receipt and distribution of 

collective relief shipments, the regulations concerning collective relief that are annexed to the 

GC (GC Annex II) shall be applied.387 

The special agreements provided for above shall in no case restrict the right of Internee 

Committees to take possession of collective relief shipments intended for internees, to undertake 

their distribution, and to dispose of them in the interests of the recipients.388 

Nor shall such agreements restrict the right of representatives of the Protecting Powers, 

the ICRC, or any other organization giving assistance to internees and responsible for the 

forwarding of collective shipments, to supervise their distribution to the recipients.389

10.23.4 Exemption From Postal and Shipping Charges for Shipments To and From

Internees. Relief shipments for internees and mail sent by internees or to them benefit from 

certain exemptions in international law.

10.23.4.1 Exemption From Dues for Relief Shipments. All relief shipments for 

internees shall be exempt from import, customs, and other dues.390 

10.23.4.2 GC Postal Dues Exemption. Under the GC, all matter sent by mail, 

including relief parcels sent by parcel post and remittances of money, addressed from other 

countries to internees or sent by them through the post office, either directly or through the 

National Protected Person Information Bureau and the Central Information Agency for protected 

persons, shall be exempt from all postal dues both in the countries of origin and destination, and 

in intermediate countries.391

 386 GC art. 108 (“The conditions for the sending of individual parcels and collective shipments shall, if necessary, be 

the subject of special agreements between the Powers concerned, which may in no case delay the receipt by the 

internees of relief supplies.”).

387 GC art. 109 (“In the absence of special agreements between Parties to the conflict regarding the conditions for the 

receipt and distribution of collective relief shipments, the regulations concerning collective relief which are annexed 

to the present Convention shall be applied.”).

388 GC art. 109 (“The special agreements provided for above shall in no case restrict the right of Internee 

Committees to take possession of collective relief shipments intended for internees, to undertake their distribution 

and to dispose of them in the interests of the recipients.”).

389 GC art. 109 (“Nor shall such agreements restrict the right of representatives of the Protecting Powers, the 

International Committee of the Red Cross, or any other organization giving assistance to internees and responsible 

for the forwarding of collective shipments, to supervise their distribution to the recipients.”).

390 GC art. 110 (“All relief shipments for internees shall be exempt from import, customs and other dues.”).

391 GC art. 110 (“All matter sent by mail, including relief parcels sent by parcel post and remittances of money, 

addressed from other countries to internees or despatched by them through the post office, either direct or through 

the Information Bureaux provided for in Article 136 and the Central Information Agency provided for in Article 
720

To this end, in particular, the exemption provided by the Universal Postal Convention of 

1947 and by the agreements of the Universal Postal Union in favor of civilians of enemy 

nationality detained in camps or civilian prisons, shall be extended to the other interned persons 

protected by the GC.392 The countries not signatory to the above-mentioned agreements shall be 

bound to grant freedom from charges in the same circumstances.393

10.23.4.3 Exemption From Postal Charges Under the Universal Postal 

Convention. Under the Universal Postal Convention, with the exception of air surcharges for 

airmail, letter-post items, postal parcels, and monetary articles originating in other countries and 

addressed to, or sent by internees, either directly or through the National Protected Person 

Information Bureau and the Central Information Agency for protected persons, shall be exempt 

from all postal charges.394

Parcels shall be admitted free of postage up to a weight of 5 kg.395 The weight limit shall 

be increased to 10 kg in the case of parcels the contents of which cannot be split up and of 

parcels addressed to a camp or the Internee Committee there for distribution to the internees.396

Items exempt from postal charges and internee parcels shall bear “Service des internés 

 140, shall be exempt from all postal dues both in the countries of origin and destination and in intermediate 

countries.”).

392 GC art. 110 (“To this end, in particular, the exemption provided by the Universal Postal Convention of 1947 and 

by the agreements of the Universal Postal Union in favour of civilians of enemy nationality detained in camps or 

civilian prisons, shall be extended to the other interned persons protected by the present Convention.”).

393 GC art. 110 (“The countries not signatory to the above-mentioned agreements shall be bound to grant freedom 

from charges in the same circumstances.”).

394 See Universal Postal Convention, art. 17(2), Dec. 14, 1989, 1687 UNTS 241, 252 (“Paragraph 1 [of Article 17] 

shall apply to letter-post items, postal parcels and monetary articles originating in other countries and addressed to 

or sent by civilian internees as defined by the Geneva Convention of 12 August 1949 relative to the protection of 

civilian persons in time of war, either direct or through the Information Bureaux and the Central Information 

Agency prescribed in articles 136 and 140 respectively of that Convention.”). Consider Universal Postal 

Convention, art. 7(2.2), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION,

LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The provisions set out under 2.1 shall also 

apply to letter-post items, postal parcels and postal payment services items originating in other countries and 

addressed to or sent by civilian internees as defined by the Geneva Convention of 12 August 1949 relative to the 

protection of civilian persons in time of war, either direct or through the offices mentioned in the Regulations of the 

Convention and of the Postal Payment Services Agreement.”).

395 Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“Parcels shall be admitted free of 

postage up to a weight of 5 kg.”). Consider Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in

INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update 

2 – Jan. 2015) (“Parcels shall be admitted free of postage up to a weight of 5 kilogrammes.”).

396 Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“The weight limit shall be 

increased to 10 kg in the case of parcels the contents of which cannot be split up and of parcels addressed to a camp 

or the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”). Consider

Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL 

POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The weight limit shall be 

increased to 10 kilogrammes in the case of parcels the contents of which cannot be split up and of parcels addressed 

to a camp or the prisoners’ representatives there (“hommes de confiance”) for distribution to the prisoners.”).
721

civils” (Civilian internees service) and a translation in another language if appropriate.397

Postal administrations shall not be liable for the loss of, theft from, or damage to parcels 

in the case of internee parcels.398

10.23.4.4 Costs of Transporting Relief Shipments Outside the Post Office. The 

cost of transporting relief shipments that are intended for internees and that, by reason of their 

weight or any other cause, cannot be sent through the post office, shall be borne by the Detaining 

Power in all the territories under its control.399 Other Powers that are Parties to the GC shall bear 

the cost of transport in their respective territories.

400

Costs connected with the transport of such shipments that are not covered by the above 

paragraphs shall be charged to the senders.401

10.23.4.5 Charges for Telegrams. The Parties to the GC shall endeavor to reduce, 

so far as possible, the charges for telegrams sent by internees, or addressed to them.402

10.23.5 Special Means of Transport of Shipments to Internees. Should military 

operations prevent the Powers concerned from fulfilling their obligation to ensure the 

conveyance of the mail and relief shipments provided for in Articles 106, 107, 108, and 113 of 

the GC, the Protecting Powers concerned, the ICRC, or any other organization duly approved by 

the parties to the conflict, may undertake the conveyance of such shipments by suitable means 

(e.g., rail, motor vehicles, vessels, or aircraft).403 For this purpose, the Parties to the GC shall 

 397 Consider Letter Post Regulations, Article RL 112 to Article 7 of the Universal Postal Convention of Oct. 11, 

2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.11 

(2015) (“Items exempt from postal charges shall bear, on the address side in the top right-hand corner, the following 

indications, which may be followed by a translation: ‘Service des prisonniers de guerre’ (Prisoners-of-war service) 

or ‘Service des internés civils’ (Civilian internees service) for the items mentioned in article 7.2 of the Convention 

and article RL 111 and the forms relating to them;”); Parcel Post Regulations, Article RC 112(2) to Article 8 of the 

Universal Postal Convention of Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL 

UNION, PARCEL POST MANUAL, page D.10 (2015) (“Every prisoner-of-war and civilian internee parcel and its 

dispatch note shall bear, the former beside the address, one of the indications ‘Service des prisonniers de guerre’ 

(Prisoner-of-war Service) or ‘Service des internés civils’ (Civilian Internees Service); these indications may be 

followed by a translation in another language.”).

398 Postal Parcels Agreement, art. 41(2)(f), Dec. 14, 1989, 1687 UNTS 346, 369 (“Postal administrations shall not be 

liable for the loss of, theft from or damage to parcels in the case of prisoner-of-war or civilian internee parcels.”).

399 GC art. 110 (“The cost of transporting relief shipments which are intended for internees and which, by reason of 

their weight or any other cause, cannot be sent through the post office, shall be borne by the Detaining Power in all 

the territories under its control.”).

400 GC art. 110 (“Other Powers which are Parties to the present Convention shall bear the cost of transport in their 

respective territories.”).

401 GC art. 110 (“Costs connected with the transport of such shipments, which are not covered by the above 

paragraphs, shall be charged to the senders.”).

402 GC art. 110 (“The High Contracting Parties shall endeavour to reduce, so far as possible, the charges for 

telegrams sent by internees, or addressed to them.”).

403 GC art. 111 (“Should military operations prevent the Powers concerned from fulfilling their obligation to ensure 

the conveyance of the mail and relief shipments provided for in Articles 106, 107, 108 and 113, the Protecting 

Powers concerned, the International Committee of the Red Cross or any other organization duly approved by the 
722

endeavor to supply them with such transport, and to allow its circulation, especially by granting 

the necessary safe-conducts.404

Such transport may also be used to convey: 

• correspondence, lists, and reports exchanged between the Central Information Agency for 

protected persons and the National Protected Person Information Bureau; and

• correspondence and reports relating to internees that the Protecting Powers, the ICRC, or 

any other organization assisting the internees exchange either with their own delegates or 

with the parties to the conflict.405

These provisions in no way detract from the right of any party to the conflict to arrange 

other means of transport if it should so prefer, nor preclude the granting of safe-conducts, under 

mutually agreed conditions, to such means of transport.406 

The costs occasioned by the use of such means of transport shall be borne, in proportion 

to the importance of the shipments, by the parties to the conflict whose nationals are benefited 

thereby.407 Expenses in setting up the special transport system are not specifically addressed by 

the GC, and presumably would be addressed by an agreement between the body that takes the 

initiative in establishing the system and the Powers concerned.408 

10.23.6 Censorship and Security Review of Internee Correspondence and Shipments. 

The Detaining Power may examine and censor all communications sent to or by internees, 

including correspondence, telegrams, parcels, newspapers, periodicals, and books, with a view to 

 

Parties to the conflict may undertake the conveyance of such shipments by suitable means (rail, motor vehicles, 

vessels or aircraft, etc.).”).

404 GC art. 111 (“For this purpose, the High Contracting Parties shall endeavour to supply them with such transport, 

and to allow its circulation, especially by granting the necessary safe-conducts.”).

405 GC art. 111 (“Such transport may also be used to convey: (a) correspondence, lists and reports exchanged 

between the Central Information Agency referred to in Article 140 and the National Bureaux referred to in Article 

136; (b) correspondence and reports relating to internees which the Protecting Powers, the International Committee 

of the Red Cross or any other organization assisting the internees exchange either with their own delegates or with 

the Parties to the conflict.”).

406 GC art. 111 (“These provisions in no way detract from the right of any Party to the conflict to arrange other 

means of transport if it should so prefer, nor preclude the granting of safe-conducts, under mutually agreed 

conditions, to such means of transport.”).

407 GC art. 111 (“The costs occasioned by the use of such means of transport shall be borne, in proportion to the 

importance of the shipments, by the Parties to the conflict whose nationals are benefited thereby.”).

408 See GC COMMENTARY 468 (“This paragraph deals with the expenditure involved in the use of special transport 

but not the expenditure incurred in setting up the special transport system. On this latter point, the Convention says 

nothing that is not contained in paragraph 1 of this Article-i.e., that the Contracting Powers will make every effort to 

procure the means of transport. It is therefore to be supposed that these expenses will be covered by agreement

between the body which takes the initiative in the matter and the Power concerned.”).
723

deleting or confiscating matter prejudicial to its military security.409 The Detaining Power’s 

general right to conduct censorship is an implicit assumption in the GC.410 Internees’

complaints, petitions, and reports may be subject to security review and censorship to ensure that 

they are not misused.

411

The censoring of correspondence addressed to internees or sent by them shall be done as 

quickly as possible.412 

10.23.6.1 Examination of Consignments. The examination of consignments 

intended for internees shall not be carried out under conditions that will expose the goods in 

them to deterioration.413 It shall be done in the presence of the addressee, or of a fellow-internee 

duly delegated by him or her.414 This measure is intended to prevent any misappropriation; the 

fellow-internee would generally be a member of the Internee Committee.415

The delivery to internees of individual or collective consignments shall not be delayed 

under the pretext of difficulties of censorship.416

10.23.6.2 Limitation on Prohibition of Correspondence. Any prohibition of 

 409 1956 FM 27-10 (Change No. 1 1976) ¶319b (“The Detaining Power may examine and censor all communications 

sent to or by internees, including correspondence and telegrams (GC, art. 107; par. 314 herein) and relief shipments 

(GC, art, 108; par. 315 herein) with a view to deleting matter prejudicial to its military security.”).

410 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 839-40 (“It was suggested by one 

Delegation that it would be desirable specifically to reserve the right of censorship in this Article, particularly in 

view of the insertion at Stockholm of the words ‘and without alteration’. The view of the Committee generally was 

that to state a reservation on one Article might make it necessary to state a reserve on several others, since the first 

insertion would have created doubt as to the general right of censorship which otherwise is implicit in the 

Convention. It was generally accepted that a duty to transmit requests and complaints necessarily implied a right to 

read the documents in question to see whether they were in fact requests and complaints. Moreover, since there was 

no obligation to transmit without alteration a matter which was not a complaint and not a request, there could be no 

breach of the Convention if such matter were deleted from communications to representatives, for example, of the 

Protecting Power.”).

411 Refer to § 10.21.2.1 (Review and Censorship of Requests and Complaints by the Detaining Power); § 10.21.3

(Periodic Reports by the Internee Committees).

412 GC art. 112 (“The censoring of correspondence addressed to internees or despatched by them shall be done as 

quickly as possible.”).

413 GC art. 112 (“The examination of consignments intended for internees shall not be carried out under conditions 

that will expose the goods contained in them to deterioration.”).

414 GC art. 112 (“It shall be done in the presence of the addressee, or of a fellow-internee duly delegated by him.”).

415 GC COMMENTARY 470 (“Parcels which cannot be examined by the Detaining Power in the presence of the 

internee, would be examined in the presence of a fellow-internee duly delegated by him. This measure is intended 

to prevent any misappropriation. In general, the fellow-internee duly delegated by the addressee will be the member 

of the Internee Committee entrusted with the task of receiving and distributing relief supplies in accordance with 

Article 109. A reference to the competence of the Internee Committee was, however, avoided in the Convention, 

because it was wished to leave the person concerned the opportunity of appointing someone as his delegate who was 

not a member of the Internee Committee, to cover cases where he did not have complete confidence in any of its 

members.”).

416 GC art. 112 (“The delivery to internees of individual or collective consignments shall not be delayed under the 

pretext of difficulties of censorship.”).
724

correspondence ordered by the parties to the conflict for either military or political reasons shall 

be only temporary, and its duration shall be as short as possible.417

10.24 PRIVATE LEGAL MATTERS OF INTERNEES

10.24.1 Civil Capacity. Internees shall retain their full civil capacity and shall exercise 

such attendant rights as may be compatible with their status.418 Their civil capacity continues to 

be governed by the laws that applied to them before they were interned (e.g., the domestic laws 

of their home country or the laws governing the place where they were detained).

419

10.24.2 Legal Documents and Assistance. The Detaining Power shall provide all 

reasonable facilities for the transmission, through the Protecting Power or the Central 

Information Agency for protected persons, or as otherwise required, of wills, powers of attorney, 

letters of authority, or any other documents intended for internees or sent by them.420 In all 

cases, the Detaining Power shall facilitate the execution and authentication in due legal form of 

such documents on behalf of internees, in particular by allowing them to consult a lawyer.421

10.24.2.1 Safekeeping of Wills. In particular, the wills of internees shall be 

received for safe-keeping by the responsible authorities, e.g., the commandant of the place of 

internment or, on the responsibility of the commandant, a public notary.422 Upon the internee’s 

death, the will shall be sent to a person whom the internee had designated.423

10.24.3 Management of Internee Property. Because internment is not punishment, 

enabling internees to manage their property is of major importance.424 

 417 GC art. 112 (“Any prohibition of correspondence ordered by the Parties to the conflict either for military or 

political reasons, shall be only temporary and its duration shall be as short as possible.”).

418 GC art. 80 (“Internees shall retain their full civil capacity and shall exercise such attendant rights as may be 

compatible with their status.”).

419 GC COMMENTARY 375 (“It must be realized, in fact, that the civil capacity of internees continues to be governed 

by the laws which applied to them before they were interned. That means that circumstances which modify it or 

cancel it in normal times (divorce, lunacy, etc.) continue to produce the same effects.”).

420 GC art. 113 (“The Detaining Powers shall provide all reasonable facilities for the transmission, through the 

Protecting Power or the Central Agency provided for in Article 140, or as otherwise required, of wills, powers of 

attorney, letters of authority, or any other documents intended for internees or despatched by them.”).

421 GC art. 113 (“In all cases the Detaining Powers shall facilitate the execution and authentication in due legal form 

of such documents on behalf of internees, in particular by allowing them to consult a lawyer.”).

422 See GC art. 129 (“The wills of internees shall be received for safe-keeping by the responsible authorities;”); GC 

COMMENTARY 504 (“It was seen in Article 113 that in every case the Detaining Power would facilitate the execution 

and the authentication in due legal form of wills. These documents will be handed to the responsible authorities i.e. 

to the commandant of the place of internment or, on the responsibility of the commandant, to a public notary who 

will ensure their safe-keeping.”).

423 Refer to § 10.34.1 (Transmittal of Wills).

424 GC COMMENTARY 473 (“Internment, it must be insisted, is not a punishment. It would therefore be unjust if, 

through the restrictions on freedom which it imposes, it involved disastrous consequences for the internee himself 

and the members of his family. In this respect, the granting of permission to internees to manage their property is of 

major importance.”).
725

The Detaining Power shall afford internees all facilities to enable internees to manage 

their property, provided such facilities are not incompatible with the conditions of internment 

and the law that is applicable.425 The law that is applicable may include the Detaining Power’s 

war regulations relating to enemy property.426

For the purpose of enabling internees to manage their property, the Detaining Power may 

give internees permission to leave the place of internment in urgent cases and if circumstances 

allow.427 In general, however, the internee would act only by delegating his or her powers.428 

10.24.4 Court Cases in Which Internees Are Parties. In all cases in which an internee is a 

party to proceedings in any court, the Detaining Power shall, if the internee so requests, cause the 

court to be informed of the internee’s detention and shall, within legal limits, ensure that all 

necessary steps are taken to prevent the internee from being in any way prejudiced, by reason of 

his or her internment, as regards the preparation and conduct of his or her case, or as regards the 

execution of any judgment of the court.429

10.25 INTERNEES AND VISITS OF FAMILY AND FRIENDS

Every internee shall be allowed to receive visitors, especially near relatives, at regular 

intervals and as frequently as possible.430 The frequency of the visits will depend on practical 

considerations, including security needs.431 The visitors need not be family members, but may 

be, for example, close friends.432

 425 GC art. 114 (“The Detaining Power shall afford internees all facilities to enable them to manage their property, 

provided this is not incompatible with the conditions of internment and the law which is applicable.”).

426 GC COMMENTARY 473 (“This Article, however, must not be interpreted in such a way as to give the internee a 

privileged position by making him not subject to the war regulations relating to enemy property. Clearly, a person 

delegated by him could not have greater power than himself and it is for this reason that the text expressly mentions 

the application of the laws in force.”).

427 GC art. 114 (“For this purpose, the said Power may give them permission to leave the place of internment in 

urgent cases and if circumstances allow.”).

428 GC COMMENTARY 473 (“It, however, remains a rule that the internee may act only by delegating his powers, 

since as one delegation to the Geneva Conference declared, ‘it would not be reasonable to expect that an internee 

should be enabled to conduct a whole business from his place of internment’. In this case again, the Protecting 

Power will often have its services in demand.”).

429 GC art. 115 (“In all cases where an internee is a party to proceedings in any court, the Detaining Power shall, if 

he so requests, cause the court to be informed of his detention and shall, within legal limits, ensure that all necessary 

steps are taken to prevent him from being in any way prejudiced, by reason of his internment, as regards the 

preparation and conduct of his case or as regards the execution of any judgment of the court.”).

430 GC art. 116 (“Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals and 

as frequently as possible.”).

431 See GC COMMENTARY 475 (“The frequency of visits was not stated because it was important to leave the 

detaining authorities discretion to appraise their security needs. Experience in the last war showed the advantage of 

monthly or bi-monthly visits which, in places of internment far away from urban centres, could last from one to 

three days.”).

432 See GC COMMENTARY 475 (“It is not only members of their families who are allowed to visit internees. In 

Kenya [during World War II], for example, internees without a family had been authorized, at the request of the 
726

As far as is possible, internees shall be permitted to visit their homes in urgent cases, 

particularly in cases of death or serious illness of relatives.433

10.26 INTERNEE ESCAPES

Similar to the rules on POW escape,434 a number of provisions of the GC limit 

punishment of internees with respect to escape. However, unlike POWs,435 internees are not 

afforded any protection from punishment for successful escapes.

10.26.1 Punishment for the Escape Itself. Internees who are recaptured after having 

escaped, or when attempting to escape, shall be liable only to disciplinary punishment in respect 

of this act, even if it is a repeated offense.436 

10.26.1.1 Punishment for Aiding and Abetting an Escape. Internees who aid and 

abet an escape, or an attempt to escape, shall be liable on this count to disciplinary punishment 

only.437

10.26.2 Offenses Committed in Connection With, or During, Escape. 

10.26.2.1 Escape Not an Aggravating Circumstance for Offenses Committed 

During Escape. Escape, or attempt to escape, even if it is a repeated offense, shall not be 

deemed an aggravating circumstance in cases where an internee is prosecuted for offenses

committed during his or her escape.438 

10.26.2.2 Leniency in Favor of Disciplinary Punishments for Offenses Committed 

in Connection With Escape. The parties to the conflict shall ensure that the competent 

authorities exercise leniency in deciding whether punishment inflicted for an offense shall be of a 

disciplinary or judicial nature, especially in respect of acts committed in connection with an 

escape, whether successful or not.439 Thus, offenses that are committed in connection with an 

escape that are not serious should be punished in disciplinary as opposed to judicial 

 

delegate of the International Committee of the Red Cross, to have visits from friends to whom they were in no way 

related. The results of this experience are embodied in the wording of this paragraph [of Article 116 of the GC].”).

433 GC art. 116 (“As far as is possible, internees shall be permitted to visit their homes in urgent cases, particularly in 

cases of death or serious illness of relatives.”).

434 Refer to § 9.25 (POW Escapes).

435 Refer to § 9.25.1 (No Punishment for Successful Escape).

436 GC art. 120 (“Internees who are recaptured after having escaped or when attempting to escape, shall be liable 

only to disciplinary punishment in respect of this act, even if it is a repeated offence.”).

437 GC art. 120 (“Internees who aid and abet an escape, or attempt to escape, shall be liable on this count to 

disciplinary punishment only.”).

438 GC art. 121 (“Escape, or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating 

circumstance in cases where an internee is prosecuted for offences committed during his escape.”).

439 GC art. 121 (“The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding 

whether punishment inflicted for an offence shall be of a disciplinary or judicial nature, especially in respect of acts 

committed in connection with an escape, whether successful or not.”).
727

proceedings.440

This requirement does not compel the competent authorities to choose disciplinary over 

judicial proceedings in any particular case.441

10.26.3 Special Surveillance of Internees Who Have Previously Escaped or Attempted to 

Escape. Although paragraph 3 of Article 118 of the GC provides that internees who have served 

disciplinary or judicial sentences shall not be treated differently from other internees,

442 internees 

punished as a result of escape or attempt to escape may be subjected to special surveillance, on 

condition that such surveillance: (1) does not affect the state of their health; (2) is exercised in a 

place of internment; and (3) does not entail the abolition of any of the safeguards granted by the 

GC.443

10.26.4 Notification of Escape and Recapture. If an internee escapes, the State of which 

the internee was a national or in which the national resided should be notified by the Detaining 

Power’s National Protected Person Information Bureau through the intermediary of the 

Protecting Powers and Central Information Agency for protected persons.

444

10.27 GENERAL PROVISIONS APPLICABLE TO BOTH JUDICIAL AND DISCIPLINARY SANCTIONS 

REGARDING INTERNEES

This section addresses the rules that apply to both judicial and disciplinary sanctions 

regarding internees.

10.27.1 Applicability of the Laws in Force to Internees. Subject to the provisions of 

Chapter IX of the GC, the laws in force in the territory in which they are detained will continue 

to apply to internees who commit offenses during internment.

445 

10.27.2 Only Disciplinary Punishments for Internee-Specific Offenses. If general laws, 

regulations, or orders declare acts committed by internees to be punishable, whereas the same 

acts are not punishable when committed by persons who are not internees, such acts shall entail 

 440 GC COMMENTARY 488 (“It must be considered that whenever connected offences are not serious, they may only 

be punished as breaches of discipline. If there is any doubt, the authorities should give the accused the benefit of 

it.”).

441 Compare § 9.26.2 (Leniency in Favor of Disciplinary Rather Than Judicial Proceedings).

442 Refer to § 10.27.5 (Treatment of Internees Who Have Served Sentences).

443 GC art. 120 (“Article 118, paragraph 3, notwithstanding, internees punished as a result of escape or attempt to 

escape, may be subjected to special surveillance, on condition that such surveillance does not affect the state of their 

health, that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards 

granted by the present Convention.”).

444 Refer to § 10.31.1 (Accountability Information That Parties to a Conflict Should Collect).

445 GC art. 117 (“Subject to the provisions of the present Chapter, the laws in force in the territory in which they are 

detained will continue to apply to internees who commit offences during internment.”).
728

disciplinary punishments only.446

10.27.3 No Repetition of Punishment. No internee may be punished more than once for 

the same act, or on the same count.447

10.27.4 Penalties Imposed on Internees. The courts or authorities shall, in passing 

sentence, take as far as possible into account the fact that the defendant is not a national of the 

Detaining Power.

448 They shall be free to reduce the penalty prescribed for the offense with 

which the internee is charged and shall not be obliged, to this end, to apply the minimum 

sentence prescribed.449

10.27.4.1 Prohibited Penalties. Imprisonment in premises without daylight and, 

in general, all forms of cruelty without exception are forbidden.450

Collective punishments of internees are also prohibited.451

10.27.4.2 Deduction From Penalty for Duration of Preventive Detention. The 

duration of preventive detention undergone by an internee shall be deducted from any 

disciplinary or judicial penalty involving confinement to which he or she may be sentenced.452

10.27.5 Treatment of Internees Who Have Served Sentences. Internees who have served 

disciplinary or judicial sentences shall not be treated differently from other internees.

453

10.28 DISCIPLINARY PROCEEDINGS AND PUNISHMENT

In addition to the general principles applicable to the punishment of internees, the 

following rules address disciplinary proceedings and punishment.

10.28.1 Internment Camp Authorities Who May Order Disciplinary Punishment. 

Without prejudice to the competence of courts and higher authorities, disciplinary punishment 

may be ordered only by the commandant of the place of internment, or by a responsible officer 

 446 GC art. 117 (“If general laws, regulations or orders declare acts committed by internees to be punishable, 

whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail 

disciplinary punishments only.”).

447 GC art. 117 (“No internee may be punished more than once for the same act, or on the same count.”).

448 GC art. 118 (“The courts or authorities shall in passing sentence take as far as possible into account the fact that 

the defendant is not a national of the Detaining Power.”).

449 GC art. 118 (“They shall be free to reduce the penalty prescribed for the offence with which the internee is 

charged and shall not be obliged, to this end, to apply the minimum sentence prescribed.”).

450 GC art. 118 (“Imprisonment in premises without daylight and, in general, all forms of cruelty without exception 

are forbidden.”).

451 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

452 GC art. 118 (“The duration of preventive detention undergone by an internee shall be deducted from any 

disciplinary or judicial penalty involving confinement to which he may be sentenced.”).

453 GC art. 118 (“Internees who have served disciplinary or judicial sentences shall not be treated differently from 

other internees.”).
729

or official who replaces him or her, or to whom the commandant has delegated his or her 

disciplinary powers.454 The delegation of disciplinary authorities by the commandant, however, 

does not absolve the commandant of his or her own responsibility and of his or her duty of 

supervision.

455

10.28.2 Confinement of Internees Awaiting Trial. Acts that constitute offenses against 

discipline shall be investigated immediately.456 This rule shall be applied, in particular, in cases 

of escape or attempt to escape.457 Recaptured internees shall be handed over to the competent 

authorities as soon as possible.458 Competent authorities are those directly responsible for the 

person concerned before the escape and who are entitled to direct that the internee receive a 

disciplinary punishment.459

In cases of offenses against discipline, confinement awaiting trial shall be reduced to an 

absolute minimum for all internees, and shall not exceed fourteen days.460 Although the words

“awaiting trial” are used in the GC, the GC does not require that this period of investigation 

before the disciplinary proceedings have the complicated character of pre-trial discovery and 

involve motions, for example, as in the judicial context.

461

The provisions of Articles 124 and 125 of the GC shall apply to internees who are in 

confinement awaiting trial for offenses against discipline.462 Thus, the conditions of any 

 454 GC art. 123 (“Without prejudice to the competence of courts and higher authorities, disciplinary punishment may 

be ordered only by the commandant of the place of internment, or by a responsible officer or official who replaces 

him, or to whom he has delegated his disciplinary powers.”).

455 GC COMMENTARY 490 (“In very large places of internment, however, the need to place before the commandant 

every case involving disciplinary punishment would lead to delays and complications. The Government Experts had 

already noted this and, at their suggestion, the Stockholm Draft included a provision that disciplinary powers could 

be delegated. This delegation of powers, authorized in the paragraph under discussion, does not however absolve 

the commandant from his own responsibility nor his duty of supervision. Since, under Article 99, he is responsible 

for the application of the Convention, he assumes responsibility for any abuses of which his subordinates might 

become guilty in exercising the disciplinary power he has delegated to them.”).

456 GC art. 122 (“Acts which constitute offences against discipline shall be investigated immediately.”).

457 GC art. 122 (“This rule shall be applied, in particular, in cases of escape or attempt to escape.”).

458 GC art. 122 (“Recaptured internees shall be handed over to the competent authorities as soon as possible.”).

459 See GC COMMENTARY 488 (“With regard to handing over the recaptured internee to the ‘competent’ authorities, 

this text should be compared with paragraph 2 of Article 92 of the Third Convention, which provides that an 

escaped prisoner of war must be handed over to the competent military authorities. In both cases the competent 

authorities are those directly responsible for the person concerned before the escape-i.e. either the camp 

commandant (or the commander of the labour detachment), or the commandant of the place of internment. In short, 

the competent authority is the authority entitled to inflict a disciplinary punishment on the internee.”).

460 GC art. 122 (“In case of offences against discipline, confinement awaiting trial shall be reduced to an absolute 

minimum for all internees, and shall not exceed fourteen days.”).

461 See GC COMMENTARY 488 (“While an investigation to establish the facts must always precede the infliction of a 

punishment, it will not in this case have the complicated character of a judicial enquiry.”).

462 GC art. 122 (“The provisions of Articles 124 and 125 shall apply to internees who are in confinement awaiting 

trial for offences against discipline.”). Refer to § 10.28.6 (Conditions for Internees Serving Disciplinary 

Punishments).
730

confinement before the trial should be at least as good as those afforded internees who are 

confined as part of disciplinary punishment.463

10.28.3 Rights of Internees in Disciplinary Proceedings. Before any disciplinary 

punishment is awarded, the accused internee shall be given: (1) precise information regarding 

the offenses of which he or she is accused; (2) an opportunity to explain his or her conduct; and 

(3) an opportunity to defend himself or herself.464 The internee shall be permitted, in particular, 

to call witnesses and to have recourse, if necessary, to the services of a qualified interpreter.465 

The decision shall be announced in the presence of the accused and of a member of the 

Internee Committee.466

10.28.4 Record of Disciplinary Punishments. A record of disciplinary punishments shall 

be maintained by the commandant of the place of internment and shall be open to inspection by 

representatives of the Protecting Power.467

10.28.5 Types of Disciplinary Punishments and Procedures for Dispensing Punishment. 

In no case shall disciplinary penalties be inhuman, brutal, or dangerous for the health of 

internees.468 

In addition, prolonged standing and roll-calls, punishment drill, military drill and 

maneuvers, and the reduction of food rations are prohibited.

469

Account shall be taken of the internee’s age, sex, and state of health.470 The disciplinary 

punishments applicable to internees shall be the following: 

• a fine that shall not exceed 50 percent of the wages that the internee would otherwise 

receive under Article 95 of the GC during a period of not more than thirty days;

 463 See GC COMMENTARY 489 (“This solution, moreover, is logical and conforms to the traditional procedure in 

penal matters. Deprivation of liberty while awaiting trial indeed takes place before the guilt of the accused has been 

established. Detention must not, therefore, be harsher for a man who is merely accused than for a guilty person.”).

464 GC art. 123 (“Before any disciplinary punishment is awarded, the accused internee shall be given precise 

information regarding the offences of which he is accused, and given an opportunity of explaining his conduct and 

of defending himself.”).

465 GC art. 123 (“He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to the 

services of a qualified interpreter.”).

466 GC art. 123 (“The decision shall be announced in the presence of the accused and of a member of the Internee 

Committee.”).

467 GC art. 123 (“A record of disciplinary punishments shall be maintained by the commandant of the place of 

internment and shall be open to inspection by representatives of the Protecting Power.”).

468 GC art. 119 (“In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health of 

internees.”).

469 Refer to § 10.20.3.2 (Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill, Military Drill and 

Manuevers, or the Reduction of Food Rations).

470 GC art. 119 (“Account shall be taken of the internee’s age, sex and state of health.”).
731

• discontinuance of privileges granted over and above the treatment provided for by the 

GC;

• fatigue duties, not exceeding two hours daily, in connection with the maintenance of the 

place of internment; and

• confinement.

471

The duration of any single punishment shall in no case exceed a maximum of thirty 

consecutive days, even if the internee is answerable for several breaches of discipline when his 

or her case is dealt with, regardless of whether such breaches are connected.472

The duration of confinement awaiting trial shall in any case be deducted from any 

sentence of confinement.473

The period elapsing between the time of award of a disciplinary punishment and its 

execution shall not exceed one month.474 When an internee is awarded a further disciplinary 

punishment, a period of at least three days shall elapse between the execution of any two of the 

punishments, if the duration of one of these punishments is ten days or more.475

10.28.6 Conditions for Internees Serving Disciplinary Punishments. Conditions for 

disciplinary punishments must comport with the requirements for humane treatment. In addition, 

the following rules apply:

10.28.6.1 Premises Where Disciplinary Punishments Are to Be Served. Internees 

shall not, in any case, be transferred to penitentiary establishments (e.g., prisons, penitentiaries, 

convict prisons) to undergo disciplinary punishments.

476 

The premises in which disciplinary punishments occur shall conform to sanitary 

requirements; they shall, in particular, be provided with adequate bedding.477 Internees 

 471 GC art. 119 (“The disciplinary punishments applicable to internees shall be the following: (1) A fine which shall 

not exceed 50 per cent of the wages which the internee would otherwise receive under the provisions of Article 95 

during a period of not more than thirty days. (2) Discontinuance of privileges granted over and above the treatment 

provided for by the present Convention. (3) Fatigue duties, not exceeding two hours daily, in connection with the 

maintenance of the place of internment. (4) Confinement.”).

472 GC art. 119 (“The duration of any single punishment shall in no case exceed a maximum of thirty consecutive 

days, even if the internee is answerable for several breaches of discipline when his case is dealt with, whether such 

breaches are connected or not.”).

473 GC art. 122 (“Its duration shall in any case be deducted from any sentence of confinement.”).

474 GC art. 123 (“The period elapsing between the time of award of a disciplinary punishment and its execution shall 

not exceed one month.”).

475 GC art. 123 (“When an internee is awarded a further disciplinary punishment, a period of at least three days shall 

elapse between the execution of any two of the punishments, if the duration of one of these is ten days or more.”).

476 GC art. 124 (“Internees shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, 

convict prisons, etc.) to undergo disciplinary punishment therein.”).

477 GC art. 124 (“The premises in which disciplinary punishments are undergone shall conform to sanitary 

requirements; they shall in particular be provided with adequate bedding.”).
732

undergoing punishment shall be enabled to keep themselves in a state of cleanliness.478 

Women internees undergoing disciplinary punishment shall be confined in separate 

quarters from male internees and shall be under the immediate supervision of women.479

10.28.6.2 Exercise and Access to the Open Air. Internees awarded disciplinary 

punishment shall be allowed to exercise and to stay in the open air at least two hours daily.480 

Exercising and staying in the open air should be given as an opportunity and should not be 

compelled.

481 

10.28.6.3 Attendance at Daily Medical Inspection and Medical Attention. 

Internees awarded disciplinary punishment shall be allowed, if they so request, to be present at 

daily medical inspections.482 They shall receive the attention that their state of health requires 

and, if necessary, shall be removed to the infirmary of the place of internment or to a hospital.483 

10.28.6.4 Reading, Writing, Correspondence, and Packages. Internees awarded 

disciplinary punishment shall have permission to read and write, and to send and receive 

letters.484 Parcels and remittances of money, however, may be withheld from them until the 

completion of their punishment; such consignments shall meanwhile be entrusted to the Internee 

Committee, who will hand over to the infirmary the perishable goods contained in the parcels.485

No internee given a disciplinary punishment may be deprived of the benefit of the 

provisions of Articles 101 and 143 of the GC.

486 Thus, internees undergoing disciplinary 

 478 GC art. 124 (“Internees undergoing punishment shall be enabled to keep themselves in a state of cleanliness.”).

479 GC art. 124 (“Women internees undergoing disciplinary punishment shall be confined in separate quarters from 

male internees and shall be under the immediate supervision of women.”).

480 GC art. 125 (“Internees awarded disciplinary punishment shall be allowed to exercise and to stay in the open air 

at least two hours daily.”).

481 See GC COMMENTARY 495 (“It should be made quite clear, moreover, that exercise in the open air is a possibility 

offered to the internee; whether he takes advantage of it or not is according to his wishes. It would not be right, 

indeed, if, under the pretext of applying this rule, certain commandants of places of internment made the punishment 

more severe by compulsory exercise, keeping the internees in the full sun or the snow for two hours at a stretch as 

sometimes happened during the Second World War.”).

482 GC art. 125 (“They shall be allowed, if they so request, to be present at the daily medical inspections.”). Refer to

§ 10.14.1.3 (Monthly Medical Inspections).

483 GC art. 125 (“They shall receive the attention which their state of health requires and, if necessary, shall be 

removed to the infirmary of the place of internment or to a hospital.”).

484 GC art. 125 (“They shall have permission to read and write, likewise to send and receive letters.”). Refer to

§ 10.23.2 (Internees’ Correspondence Rights and Quota).

485 GC art. 125 (“Parcels and remittances of money, however, may be withheld from them until the completion of 

their punishment; such consignments shall meanwhile be entrusted to the Internee Committee, who will hand over to 

the infirmary the perishable goods contained in the parcels.”).

486 GC art. 125 (“No internee given a disciplinary punishment may be deprived of the benefit of the provisions of 

Articles 107 and 143 of the present Convention.”). Article 125 of the GC specifies Article 107 instead of Article 

101. However, considering (1) the legislative history; (2) the parallel provision in Article 98 of the GPW that refers 

to the right of making complaints; (3) the fact that the right to send or receive letters is already given in paragraph 3 
733

punishments may not be deprived of the right to make requests and complaints, or to deal with 

representatives of the Protecting Power (including representatives of an impartial humanitarian 

organization performing the functions of the Protecting Power).487

10.29 JUDICIAL PROCEEDINGS REGARDING PROTECTED PERSONS IN OCCUPIED TERRITORY OR 

INTERNEES IN A BELLIGERENT’S HOME TERRITORY

In addition to the general principles applicable to the punishment of internees, the 

following rules address judicial proceedings against internees in a belligerent’s home territory 

and protected persons in occupied territory.

The provisions of Articles 71 through 76 of the GC shall apply, by analogy, to 

proceedings against internees who are in the national territory of the Detaining Power.

488

Articles 71-76 of the GC address the penal procedures for protected persons in occupied 

territory. Thus, this section has been written with a view towards describing both situations.

10.29.1 Information to Internee Committees. Internee Committees shall be informed of 

all judicial proceedings instituted against internees whom they represent, and of their result.489

10.29.2 Pre-Trial Matters. 

10.29.2.1 Prompt Information of the Charges and Brought to Trial as Rapidly as 

Possible. Accused persons who are prosecuted by the Occupying or Detaining Power shall be 

promptly informed, in writing, in a language that they understand, of the particulars of the 

charges preferred against them, and shall be brought to trial as rapidly as possible.490

10.29.2.2 Notification of Proceeding in Respect of Charges Involving the Death 

Penalty or Imprisonment for Two or More Years. The Protecting Power shall be informed of all 

proceedings instituted by the Occupying or Detaining Power against protected persons in respect 

of charges involving the death penalty or imprisonment for two years or more, and shall be 

enabled, at any time, to obtain information regarding the state of such proceedings.491 

Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all 

 of Article 125 of the GC; and (4) the principles underlying the GC; “[i]t may therefore be deduced that the last 

paragraph refers to Article 107 in error for Article 101.” GC COMMENTARY 497.

487 Refer to § 10.21 (Internee Petitions, Complaints); § 10.33 (Access to Internees by Protecting Powers, ICRC, and 

Other Relief Organizations).

488 GC art. 126 (“The provisions of Articles 71 to 76 inclusive shall apply, by analogy, to proceedings against 

internees who are in the national territory of the Detaining Power.”).

489 GC art. 118 (“Internee Committees shall be informed of all judicial proceedings instituted against internees 

whom they represent, and of their result.”).

490 GC art. 71 (“Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in 

writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be 

brought to trial as rapidly as possible.”).

491 GC art. 71 (“The Protecting Power shall be informed of all proceedings instituted by the Occupying Power 

against protected persons in respect of charges involving the death penalty or imprisonment for two years or more; it 

shall be enabled, at any time, to obtain information regarding the state of such proceedings.”).
734

particulars of these and of any other proceedings instituted by the Occupying or Detaining Power

against protected persons.492

The notification to the Protecting Power, as provided for in the second paragraph of 

Article 71 of the GC, shall be sent immediately, and shall in any case reach the Protecting Power 

three weeks before the date of the first hearing.493 Unless, at the opening of the trial, evidence is 

submitted that the provisions of Article 71 of the GC are fully complied with, the trial shall not 

proceed.494 The notification shall include the following particulars: 

• description of the accused;

• place of residence or detention;

• specification of the charge or charges (with mention of the penal provisions under which 

it is brought);

• designation of the court that will hear the case; and

• place and date of the first hearing.495

10.29.3 Right of Defense and Trial Procedure. Accused persons shall have the right to 

present evidence necessary to their defense and may, in particular, call witnesses.496 They shall 

have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be 

able to visit them freely and shall enjoy the necessary facilities for preparing the defense.497 

10.29.3.1 Additional Provision for Defense Counsel and Interpreter. Failing a 

choice by the accused, the Protecting Power may provide him or her with an advocate or 

counsel.498 Where the accused person is facing a serious charge and the Protecting Power is not 

functioning, the Occupying or Detaining Power, subject to the consent of the accused, shall 

 492 GC art. 71 (“Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particulars 

of these and of any other proceedings instituted by the Occupying Power against protected persons.”).

493 GC art. 71 (“The notification to the Protecting Power, as provided for in the second paragraph above, shall be 

sent immediately, and shall in any case reach the Protecting Power three weeks before the date of the first 

hearing.”).

494 GC art. 71 (“Unless, at the opening of the trial, evidence is submitted that the provisions of this Article are fully 

complied with, the trial shall not proceed.”).

495 GC art. 71 (“The notification shall include the following particulars: (a) description of the accused; (b) place of 

residence or detention; (c) specification of the charge or charges (with mention of the penal provisions under which 

it is brought); (d) designation of the court which will hear the case; (e) place and date of the first hearing.”).

496 GC art. 72 (“Accused persons shall have the right to present evidence necessary to their defence and may, in 

particular, call witnesses.”).

497 GC art. 72 (“They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who 

shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.”).

498 GC art. 72 (“Failing a choice by the accused, the Protecting Power may provide him with an advocate or 

counsel.”).
735

provide an advocate or counsel.499 Accused persons shall, unless they freely waive such 

assistance, be aided by an interpreter, both during preliminary investigation and during the 

hearing in court.500 They shall have the right at any time to object to the interpreter and to ask 

for the interpreter to be replaced.501

10.29.3.2 Attendance by the Protecting Power in the Proceedings. 

Representatives of the Protecting Power shall have the right to attend the trial of any protected 

person, unless the hearing, as an exceptional measure, has to be held in camera in the interests of 

the security of the Occupying or Detaining Power, which shall then notify the Protecting 

Power.502 A notification in respect of the date and place of trial shall be sent to the Protecting 

Power.503

10.29.3.3 Regular Trial. No sentence shall be pronounced by the competent 

courts of the Occupying or Detaining Power except after a regular trial.504 

10.29.3.4 Notification of Judgment Involving Sentence of Death or Imprisonment. 

Any judgment involving a sentence of death, or imprisonment for two years or more, shall be 

communicated, with the relevant grounds, as rapidly as possible to the Protecting Power.505 The 

notification shall contain a reference to the notification made under Article 71 of the GC and, in 

the case of sentences of imprisonment, the name of the place where the sentence is to be 

served.506 A record of judgments other than those referred to above shall be kept by the court 

and shall be open to inspection by representatives of the Protecting Power.507 Any period 

allowed for appeal in the case of sentences involving the death penalty, or imprisonment of two 

years or more, shall not run until notification of judgment has been received by the Protecting 

Power.508

 499 GC art. 72 (“When an accused person has to meet a serious charge and the Protecting Power is not functioning, 

the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.”).

500 GC art. 72 (“Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both 

during preliminary investigation and during the hearing in court.”).

501 GC art. 72 (“They shall have the right at any time to object to the interpreter and to ask for his replacement.”).

502 GC art. 74 (“Representatives of the Protecting Power shall have the right to attend the trial of any protected 

person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the 

Occupying Power, which shall then notify the Protecting Power.”).

503 GC art. 74 (“A notification in respect of the date and place of trial shall be sent to the Protecting Power.”).

504 GC art. 71 (“No sentence shall be pronounced by the competent courts of the Occupying Power except after a 

regular trial.”).

505 GC art. 74 (“Any judgment involving a sentence of death, or imprisonment for two years or more, shall be 

communicated, with the relevant grounds, as rapidly as possible to the Protecting Power.”).

506 GC art. 74 (“The notification shall contain a reference to the notification made under Article 71, and, in the case 

of sentences of imprisonment, the name of the place where the sentence is to be served.”).

507 GC art. 74 (“A record of judgments other than those referred to above shall be kept by the court and shall be open 

to inspection by representatives of the Protecting Power.”).

508 GC art. 74 (“Any period allowed for appeal in the case of sentences involving the death penalty, or imprisonment 

of two years or more, shall not run until notification of judgment has been received by the Protecting Power.”).
736

10.29.4 Right of Appeal. A convicted person shall have the right of appeal provided for 

by the laws applied by the court.509 The convicted person shall be fully informed of his or her 

right to appeal or petition, and of the time limit within which he or she may do so.510 

The penal procedure in Section III of the GC shall apply, as far as it is applicable, to 

appeals.511 Where the laws applied by the court make no provision for appeals, the convicted 

person shall have the right to petition against the finding and sentence to the competent authority 

of the Occupying or Detaining Power.

512

10.29.5 Death Sentences. In no case shall persons condemned to death be deprived of the 

right of petition for pardon or reprieve.513

No death sentence shall be carried out before the expiration of a period of at least six 

months from the date of receipt by the Protecting Power of the notification of the final judgment 

confirming such death sentence, or of an order denying pardon or reprieve.514

The six-month period of suspension of the death sentence prescribed in Article 75 of the 

GC may be reduced in individual cases in circumstances of grave emergency involving an 

organized threat to the security of the Occupying or Detaining Power or its forces, provided 

always that the Protecting Power is notified of such reduction and is given reasonable time and 

opportunity to make representations to the competent occupying or domestic authorities in 

respect of such death sentences.515

10.29.6 Conditions for Accused or Convicted Protected Persons Who Are Detained. If 

found in occupied territory, protected persons accused of offenses shall be detained in the 

occupied country, and, if convicted, they shall serve their sentences therein.516 This provision 

does not preclude the appearance of convicted persons before appeal courts outside the occupied 

 509 GC art. 73 (“A convicted person shall have the right of appeal provided for by the laws applied by the court.”).

510 GC art. 73 (“He shall be fully informed of his right to appeal or petition and of the time limit within which he 

may do so.”).

511 GC art. 73 (“The penal procedure provided in the present Section shall apply, as far as it is applicable, to 

appeals.”).

512 GC art. 73 (“Where the laws applied by the Court make no provision for appeals, the convicted person shall have 

the right to petition against the finding and sentence to the competent authority of the Occupying Power.”).

513 GC art. 75 (“In no case shall persons condemned to death be deprived of the right of petition for pardon or 

reprieve.”).

514 GC art. 75 (“No death sentence shall be carried out before the expiration of a period of at least six months from 

the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence, 

or of an order denying pardon or reprieve.”).

515 GC art. 75 (“The six months period of suspension of the death sentence herein prescribed may be reduced in 

individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying 

Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable 

time and opportunity to make representations to the competent occupying authorities in respect of such death 

sentences.”).

516 GC art. 76 (“Protected persons accused of offences shall be detained in the occupied country, and if convicted 

they shall serve their sentences therein.”).
737

territory, or the possibility of protected persons receiving medical care outside the occupied 

territory.517

Accused or convicted protected persons who are detained shall, if possible, be separated 

from other detainees and shall enjoy conditions of food and hygiene that will be sufficient to 

keep them in good health, and that will be at least equal to those obtaining in prisons in that 

country.

518

10.29.6.1 Medical Attention and Spiritual Assistance. Accused or convicted 

protected persons who are detained shall receive the medical attention required by their state of 

health.519 They shall also have the right to receive any spiritual assistance that they may 

require.520

10.29.6.2 Separate Confinement for Women and Special Treatment for Minors. 

Women shall be confined in separate quarters and shall be under the direct supervision of 

women.521 Proper regard shall be paid to the special treatment due to minors.522

10.29.6.3 Visits by the Protecting Power and ICRC and Right to Receive Relief 

Parcel. Accused or convicted protected persons who are detained shall have the right to be 

visited by delegates of the Protecting Power and the ICRC, in accordance with the provisions of 

Article 143 of the GC.523 Accused or convicted protected persons who are detained also shall 

have the right to receive at least one relief parcel monthly.524

10.30 TRANSFERS OF INTERNEES FROM THE PLACE OF INTERNMENT

The rules in this section apply to transfers of internees from the place of internment.

Additional rules apply to the transfer of protected persons from the belligerent’s home 

 517 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 835 (“A provision appeared in 

Article 67 of the Stockholm text that protected persons indicted or convicted by the courts in occupied territory shall 

in no case be taken outside the said territory. The Committee felt this prohibition to be too emphatic since it would 

preclude the appearance of convicted persons before appeal courts outside the occupied territory, or the possibility 

of their receiving health treatment outside the territory. The Committee considered that the principle behind this 

provision could be preserved by including in Article 66 a provision to the effect that protected persons indicted shall 

be detained in the occupied country and if convicted shall serve their sentence therein.”).

518 GC art. 76 (“They shall, if possible, be separated from other detainees and shall enjoy conditions of food and 

hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in 

prisons in the occupied country.”).

519 GC art. 76 (“They shall receive the medical attention required by their state of health.”).

520 GC art. 76 (“They shall also have the right to receive any spiritual assistance which they may require.”).

521 GC art. 76 (“Women shall be confined in separate quarters and shall be under the direct supervision of women.”).

522 GC art. 76 (“Proper regard shall be paid to the special treatment due to minors.”).

523 GC art. 76 (“Protected persons who are detained shall have the right to be visited by delegates of the Protecting 

Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.”).

524 GC art. 76 (“Such persons shall have the right to receive at least one relief parcel monthly.”).
738

territory.525 Individual or mass forcible transfers of protected persons from occupied territory are 

prohibited.526

10.30.1 Determining Whether to Transfer Internees. When making decisions regarding 

the transfer of internees, the Detaining Power shall take their interests into account and, in 

particular, shall not do anything to increase the difficulties of repatriating them or returning them 

to their own homes.527

Sick, wounded, or infirm internees, and maternity cases, shall not be transferred if the 

journey would be seriously detrimental to them, unless their safety imperatively so demands.528

If the combat zone draws close to a place of internment, the internees in that place shall 

not be transferred unless their removal can be carried out in adequate conditions of safety, or 

unless they are exposed to greater risks by remaining on the spot than by being transferred.529

10.30.2 Conditions for the Transfer of Internees. The transfer of internees shall always 

be effected humanely.530 As a general rule, it shall be carried out by rail or other means of 

transport, and under conditions at least equal to those obtaining for the forces of the Detaining 

Power in their changes of station.531 If, as an exceptional measure, such removals have to be 

effected on foot, they may not take place unless the internees are in a fit state of health, and may 

not in any case expose them to excessive fatigue.532 This provision seeks to prevent abuses such 

as the forced “death marches” that occurred during World War II.533 When considering 

movement by foot, the Detaining Power must assess the fitness of each individual, not the 

 525 Refer to § 10.8.3 (Transfers of Protected Persons From a Belligerent’s Home Territory).

526 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

527 GC art. 127 (“When making decisions regarding the transfer of internees, the Detaining Power shall take their 

interests into account and, in particular, shall not do anything to increase the difficulties of repatriating them or 

returning them to their own homes.”).

528 GC art. 127 (“Sick, wounded or infirm internees and maternity cases shall not be transferred if the journey would 

be seriously detrimental to them, unless their safety imperatively so demands.”).

529 GC art. 127 (“If the combat zone draws close to a place of internment, the internees in the said place shall not be

transferred unless their removal can be carried out in adequate conditions of safety, or unless they are exposed to 

greater risks by remaining on the spot than by being transferred.”).

530 GC art. 127 (“The transfer of internees shall always be effected humanely.”).

531 GC art. 127 (“As a general rule, it shall be carried out by rail or other means of transport, and under conditions at 

least equal to those obtaining for the forces of the Detaining Power in their changes of station.”).

532 GC art. 127 (“If, as an exceptional measure, such removals have to be effected on foot, they may not take place 

unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue.”).

533 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 269 (“Mr. GARDNER (United 

Kingdom) submitted the three following amendments: ... It had been proved that during the Second World War over 

ten thousand prisoners lost their lives while being transferred by sea; but a very much larger number lost their lives 

while being transferred by land. He referred not only to the Bataan march, but also to a march in Borneo where 

some four thousand prisoners had started out, and only six or seven survived. There were also the forced marches 

carried out by prisoners in Central Europe towards the end of the war; it was certainly not due to any efforts by the 

Detaining Power that the number of deaths during those marches was comparatively small.”).
739

condition of the majority.534 

The Detaining Power shall supply internees during transfer with drinking water and food 

sufficient in quantity, quality, and variety to maintain them in good health, and also with the 

necessary clothing, adequate shelter, and the necessary medical attention.535 The Detaining 

Power shall take all suitable precautions to ensure their safety during transfer, and shall establish 

before their departure a complete list of all internees transferred.536

10.30.3 Procedures for the Transfer of Internees. In the event of transfer, internees shall 

be officially advised of their departure and of their new postal address.537 Such notification shall 

be given in time for them to pack their luggage and inform their next of kin.538

10.30.3.1 Baggage. Internees shall be allowed to take with them their personal 

effects, and the correspondence and parcels that have arrived for them.539 The weight of such 

baggage may be limited if the conditions of transfer so require, but in no case may be limited to 

less than 25 kilograms (approximately 55 pounds) per internee.540

10.30.3.2 Forwarding of Mail. Mail and parcels addressed to their former place 

of internment shall be forwarded to internees without delay.541 

10.30.3.3 Disposition of Community Property and Remaining Property. The 

commandant of the place of internment shall take, in agreement with the Internee Committee, 

any measures needed to ensure the transport of the internees’ community property and of the 

luggage the internees are unable to take with them in consequence of restrictions that may be 

 534 GC COMMENTARY 499 (“It is stated expressly that transfers on foot are only permissible in exceptional cases and 

if the internees are in a fit state of health. It is not the physical fitness of the majority of the internees which is to 

decide whether the transfer will be made on foot or not. The fitness of each individual must be considered and those 

who cannot walk must be taken in some sort of transport.”).

535 GC art. 127 (“The Detaining Power shall supply internees during transfer with drinking water and food sufficient 

in quantity, quality and variety to maintain them in good health, and also with the necessary clothing, adequate 

shelter and the necessary medical attention.”).

536 GC art. 127 (“The Detaining Power shall take all suitable precautions to ensure their safety during transfer, and 

shall establish before their departure a complete list of all internees transferred.”).

537 GC art. 128 (“In the event of transfer, internees shall be officially advised of their departure and of their new 

postal address.”).

538 GC art. 128 (“Such notification shall be given in time for them to pack their luggage and inform their next of 

kin.”).

539 GC art. 128 (“They shall be allowed to take with them their personal effects, and the correspondence and parcels 

which have arrived for them.”).

540 GC art. 128 (“The weight of such baggage may be limited if the conditions of transfer so require, but in no case 

to less than twenty-five kilograms per internee.”).

541 GC art. 128 (“Mail and parcels addressed to their former place of internment shall be forwarded to them without 

delay.”).
740

imposed on baggage that internees may take with them.

542

10.31 NATIONAL ACCOUNTING FOR PROTECTED PERSONS IN ITS POWER

A proper accounting of the detention or assigned residence of protected persons is an 

important responsibility of States in relation to protected persons in their power. In order to 

provide as full an accounting as possible, and in order to minimize misidentification, a State 

must obtain detailed information about certain protected persons in its power for forwarding 

through its National Protected Person Information Bureau to the Central Information Agency for 

protected persons.

10.31.1 Accountability Information That Parties to a Conflict Should Collect. Each of 

the parties to the conflict shall, within the shortest possible period, give its National Protected 

Person Information Bureau information of any measure taken by it concerning any protected 

persons who are: (1) kept in custody for more than two weeks; (2) subjected to assigned 

residence; or (3) interned.543

The information received by the National Protected Person Information Bureau and 

transmitted by it shall be of such a character as to make it possible to identify the protected 

person exactly and to advise his or her next of kin quickly.

544 The information in respect of each 

person shall include at least:

• surname (i.e., last name) and first names (i.e., first and middle names);

• place and date of birth;

• nationality;

• last residence;

• any distinguishing characteristics;

• first name of the father and the maiden name of the mother;

• the date, place, and nature of the action taken with regard to the individual;

• the address at which correspondence may be sent to him or her; and 

• the name and address of the person designated by the protected person to be informed of 

 542 GC art. 128 (“The commandant of the place of internment shall take, in agreement with the Internee Committee, 

any measures needed to ensure the transport of the internees’ community property and of the luggage the internees 

are unable to take with them in consequence of restrictions imposed by virtue of the second paragraph.”).

543 GC art. 136 (“Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau 

information of any measure taken by it concerning any protected persons who are kept in custody for more than two 

weeks, who are subjected to assigned residence or who are interned.”).

544 GC art. 138 (“The information received by the national Bureau and transmitted by it shall be of such a character 

as to make it possible to identify the protected person exactly and to advise his next of kin quickly.”).
741

information concerning him or her.545

In addition to this information, information regarding all changes pertaining to these 

protected persons, such as transfers, releases, repatriations, escapes, admittances to hospitals, 

births, and deaths, shall also be collected and transmitted.

546 

In addition to admittances to hospitals, information regarding the state of health of 

internees who are seriously ill or seriously wounded must be supplied to the National Protected 

Person Information Bureau regularly and, if possible, every week.547

In addition to notices of death, copies of records of death of internees shall be forwarded 

in accordance with Article 129 of the GC.548 Lists of graves of deceased internees shall be 

forwarded, as soon as circumstances permit, in accordance with Article 130 of the GC.549

10.31.2 National Protected Person Information Bureau. Upon the outbreak of an 

international armed conflict and in all cases of occupation of the territory of one State by another 

State, each of the parties to the conflict shall establish an official National Protected Person 

Information Bureau responsible for receiving and transmitting information in respect of the 

protected persons who are in its power.550 The State has discretion about the nature, 

composition, and working methods of the National Protected Person Information Bureau.

551

All communications in writing made by any National Protected Person Information 

Bureau shall be authenticated by a signature or a seal.552

 545 GC art. 138 (“The information in respect of each person shall include at least his surname, first names, place and 

date of birth, nationality, last residence and distinguishing characteristics, the first name of the father and the maiden 

name of the mother, the date, place and nature of the action taken with regard to the individual, the address at which 

correspondence may be sent to him and the name and address of the person to be informed.”).

546 GC art. 136 (“It shall, furthermore, require its various departments concerned with such matters to provide the 

aforesaid Bureau promptly with information concerning all changes pertaining to these protected persons, as, for 

example, transfers, releases, repatriations, escapes, admittances to hospitals, births and deaths.”).

547 GC art. 138 (“Likewise, information regarding the state of health of internees who are seriously ill or seriously 

wounded shall be supplied regularly and if possible every week.”).

548 Refer to § 10.34.2 (Death Certificates).

549 Refer to § 10.34.4 (Maintenance and Records of Graves and Ashes).

550 GC art. 136 (“Upon the outbreak of a confict and in all cases of occupation, each of the Parties to the conflict 

shall establish an official Information Bureau responsible for receiving and transmitting information in respect of the 

protected persons who are in its power.”).

551 GC COMMENTARY 523 (“[Paragraph 1 of Article 136 of the GC] does not state in detail the nature, composition 

and working methods of the Bureau, all these matters being left to the free decision of each Party, nor does it state 

what authority will be responsible for establishing and conducting the Bureau. ... During the Second World War, 

the Bureaux which had the task of transmitting information concerning civilian internees to the Central Agency were 

varied in nature and origin. In some cases, they were the same as the Bureaux responsible for prisoners of war; in 

others, they were established by the National Red Cross Society; most often, however, they depended directly on 

government authorities, such as the Ministry of the Interior or the Ministry of Security.”).

552 GC art. 137 (“All communications in writing made by any Bureau shall be authenticated by a signature or a 

seal.”).
742

The National Protected Person Information Bureau: (1) receives and forwards certain 

information to the Powers concerned, through the intermediary of the Protecting Powers and the 

Central Information Agency for protected persons; (2) replies to inquiries; (3) withholds certain 

information from the Powers concerned, but not the Central Information Agency for protected 

persons, in the interest of protected persons or their relatives; (4) collects personal valuables left 

by certain protected persons; and (5) in occupied territory, has a special section that is 

responsible for identifying children whose identity is in doubt.

10.31.2.1 Receiving and Forwarding Certain Information. The National 

Protected Person Information Bureau receives certain information regarding protected persons

from other departments of the State to which it belongs.

553

Each National Protected Person Information Bureau shall immediately forward 

information concerning protected persons by the most rapid means to the Powers of whom these 

persons are nationals, or to Powers in whose territory they resided, through the intermediary of 

the Protecting Powers and likewise through the Central Information Agency for protected 

persons.

554 

10.31.2.2 Replying to Inquiries Regarding Protected Persons. The National 

Protected Person Information Bureau shall also reply to all inquiries that may be received 

regarding protected persons.555 Responses to inquiries must be made consistent with the 

protection of protected persons against insults and public curiosity.556 

10.31.2.3 Withholding of Information When Detrimental to the Person or His or 

Her Relatives. The National Protected Person Information Bureau shall transmit information 

concerning a protected person unless its transmission might be detrimental to the person 

concerned or to his or her relatives.557 Even in such a case, the information may not be withheld 

from the Central Information Agency for protected persons, which, upon being notified of the 

circumstances, will take the necessary precautions indicated in Article 140 of the GC.

558 This 

rule seeks to protect persons who have fled persecution from their home governments, as well as 

 553 GC art. 136 (“Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau 

information of any measure taken by it concerning any protected persons who are kept in custody for more than two 

weeks, who are subjected to assigned residence or who are interned. It shall, furthermore, require its various 

departments concerned with such matters to provide the aforesaid Bureau promptly with information concerning all 

changes pertaining to these protected persons, as, for example, transfers, releases, repatriations, escapes, admittances 

to hospitals, births and deaths.”).

554 GC art. 137 (“Each national Bureau shall immediately forward information concerning protected persons by the 

most rapid means to the Powers of whom the aforesaid persons are nationals, or to Powers in whose territory they 

resided, through the intermediary of the Protecting Powers and likewise through the Central Agency provided for in 

Article 140.”).

555 GC art. 137 (“The Bureaux shall also reply to all enquiries which may be received regarding protected persons.”).

556 Refer to § 10.5.2 (Protection Against Insults and Public Curiosity).

557 GC art. 137 (“Information Bureaux shall transmit information concerning a protected person unless its 

transmission might be detrimental to the person concerned or to his or her relatives.”).

558 GC art. 137 (“Even in such a case, the information may not be withheld from the Central Agency which, upon 

being notified of the circumstances, will take the necessary precautions indicated in Article 140.”).
743

the family members of such persons.

559

10.31.2.4 Collection of Personal Valuables Left by Protected Persons. Each 

National Protected Person Information Bureau shall be responsible for collecting all personal 

valuables left by protected persons mentioned in Article 136 of the GC, in particular those who 

have been repatriated or released, or who have escaped or died.

560 The National Protected 

Person Information Bureau shall forward these valuables to those concerned, either directly or, if 

necessary, through the Central Information Agency for protected persons.

561 Personal valuables 

may include wills, articles of sentimental value, or sums of money.

562 Such articles shall be sent 

by the National Protected Person Information Bureau in sealed packets, which shall be 

accompanied by statements giving clear and full identity particulars of the person to whom the 

articles belonged, and by a complete list of the contents of the parcel.563 Detailed records shall 

be maintained of the receipt and sending of all such valuables.564

10.31.2.5 Special Section for the Identification of Children in Occupied Territory. 

In occupation, a special section of the National Protected Person Information Bureau shall be 

responsible for taking all necessary steps to identify children whose identity is in doubt.565

 559 GC COMMENTARY 531 (“This paragraph contains a provision not included in the Third Convention. It seeks to 

protect civilians in enemy hands and particularly their families in their country of origin, against the authorities of 

that country if they should have any reason for particular animosity towards them. This exceptional provision is 

based on the confused situations which occurred during the First World War. Civilians who have fled from 

persecution generally have an interest in remaining unknown to the authorities of their former country. They must 

therefore judge for themselves the expediency of notification to the authorities, even in the case of the forwarding of 

information to members of their family.”).

560 GC art. 139 (“Each national Information Bureau shall, furthermore, be responsible for collecting all personal 

valuables left by protected persons mentioned in Article 136, in particular those who have been repatriated or 

released, or who have escaped or died;”).

561 GC art. 139 (“[I]t shall forward the said valuables to those concerned, either direct, or, if necessary, through the 

Central Agency.”).

562 GC COMMENTARY 538 (“The term ‘personal valuables’ should be understood to mean all the articles which 

belonged to the person who is no longer there--whether he has been repatriated or has died--which are of any 

commercial worth or sentimental value. It must always be remembered that an article of absolutely no intrinsic 

worth may often have very great sentimental value for the next of kin of the deceased person. In practice, therefore, 

almost all the articles found on the spot will be collected and forwarded. The corresponding provision of the Third 

Convention (Article 122, paragraph 9) adds to the expression ‘personal valuables’ the words ‘including sums in 

currencies other than that of the Detaining Power and documents of importance to the next of kin’. This expression 

has not been retained in the Fourth Convention mainIy because it was considered that the term ‘valuables’ covered 

sums of money and that since the value of papers could be judged only by the next of kin, they should be forwarded 

to those persons, particularly if they seemed to be of a legal nature. It will be for the Detaining Power to decide 

what foreign currency may be sent if any. Among the documents which should be carefully kept are wills, which 

are particularly important.”).

563 GC art. 139 (“Such articles shall be sent by the Bureau in sealed packets which shall be accompanied by 

statements giving clear and full identity particulars of the person to whom the articles belonged, and by a complete 

list of the contents of the parcel.”).

564 GC art. 139 (“Detailed records shall be maintained of the receipt and despatch of all such valuables.”).

565 GC art. 50 (“A special section of the Bureau set up in accordance with Article 136 shall be responsible for taking 

all necessary steps to identify children whose identity is in doubt.”).
744

Particulars of their parents or other near relatives should always be recorded if available.566

10.31.3 Central Information Agency for Protected Persons. A Central Information 

Agency for protected persons, in particular for internees, shall be created in a neutral country.567 

This agency may be the same as that provided for in Article 123 of the GPW.

568

The function of the Central Information Agency for protected persons shall be to collect 

all information of the type set forth in Article 136 of the GC, which it may obtain through 

official or private channels, and to transmit it as rapidly as possible to the countries of origin or 

of residence of the persons concerned, except in cases where such transmissions might be 

detrimental to the persons whom this information concerns, or to their relatives.569 The Central 

Information Agency for protected persons shall receive from the parties to the conflict all 

reasonable facilities for effecting such transmissions.570 Parties to the GC, and in particular 

those States whose nationals benefit from the services of the Central Information Agency for 

protected persons, are requested to give the Central Information Agency for protected persons

the financial aid it may require.571

The provisions of the GC establishing the Central Information Agency for protected 

persons do not restrict the humanitarian activities of the ICRC and of the relief societies 

described in Article 142 of the GC.

572

The GC contemplates that the ICRC shall, if it deems necessary, propose to the Powers 

concerned the organization of a Central Information Agency for protected persons.573 In fact, the

role of the Central Information Agency for protected persons has been performed in many 

conflicts by the ICRC Central Tracing Agency, which has also performed this role for POWs.574

 566 GC art. 50 (“Particulars of their parents or other near relatives should always be recorded if available.”).

567 GC art. 140 (“A Central Information Agency for protected persons, in particular for internees, shall be created in 

a neutral country. The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers 

concerned the organization of such an Agency, which may be the same as that provided for in Article 123 of the 

Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).

568 Refer to § 9.31.3 (Central POW Information Agency).

569 GC art. 140 (“The function of the Agency shall be to collect all information of the type set forth in Article 136 

which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries of 

origin or of residence of the persons concerned, except in cases where such transmissions might be detrimental to 

the persons whom the said information concerns, or to their relatives.”).

570 GC art. 140 (“It shall receive from the Parties to the conflict all reasonable facilities for effecting such 

transmissions.”).

571 GC art. 140 (“The High Contracting Parties, and in particular those whose nationals benefit by the services of the 

Central Agency, are requested to give the said Agency the financial aid it may require.”).

572 GC art. 140 (“The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of 

the International Committee of the Red Cross and of the relief societies described in Article 142.”).

573 GC art. 140 (“The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers 

concerned the organization of such an Agency, which may be the same as that provided for in Article 123 of the 

Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).

574 Refer to § 9.31.3 (Central POW Information Agency).
745

10.31.4 U.S. Practice in Reporting to the ICRC Central Tracing Agency. For the United 

States, the functions of the National Protected Person Information Bureau have been performed 

by the same entity that performs the functions of the National POW Information Bureau: the 

National Prisoner of War Information Center or the National Detainee Reporting Center.575 This 

organization has provided information to the ICRC Central Tracing Agency, acting as the 

Central Information Agency for protected persons under the GC.

10.31.5 Exemption of National Protected Person Information Bureau and Central 

Information Agency for Protected Persons From Certain Charges. The National Protected 

Person Information Bureau and the Central Information Agency for protected persons shall enjoy 

free postage for mail, all the exemptions provided for in Article 110 of the GC,576 and, further, so 

far as possible, exemption from telegraphic charges or, at least, greatly reduced rates.

577

The National Protected Person Information Bureau and the Central Information Agency 

for protected persons shall also enjoy exemption from postal charges in respect of letter-post 

items, postal parcels, and monetary articles that concern internees, which they send or receive, 

either directly or as intermediaries, under the conditions laid down in the Universal Postal 

Convention.578 Such items exempt from postal charges should be marked appropriately.579

10.32 ROLE OF THE PROTECTING POWER IN THE GC

The Protecting Power is an organ for ensuring implementation of the GC. The Protecting 

Power has extensive duties under the GC. It transmits information between belligerents, 

monitors compliance with the GC, and takes an active role in promoting the welfare of protected 

persons.

10.32.1 Transmission of Information Between Belligerents. The Protecting Power helps 

transmit information between belligerents, including:

 575 Refer to § 9.31.4 (U.S. Practice in Reporting to the ICRC Central Tracing Agency).

576 Refer to § 10.23.4 (Exemption From Postal and Shipping Charges for Shipments To and From Internees).

577 GC art. 141 (“The national Information Bureaux and the Central Information Agency shall enjoy free postage for 

all mail, likewise the exemptions provided for in Article 110, and further, so far as possible, exemption from 

telegraphic charges or, at least, greatly reduced rates.”).

578 Universal Postal Convention, art. 17(3), Dec. 14, 1989, 1687 UNTS 241, 252 (“The national Information 

Bureaux and the Central Information Agencies mentioned above shall also enjoy exemption from postal charges in 

respect of letter-post items, postal parcels and monetary articles which concern the persons referred to in paragraphs 

1 and 2, which they send or receive, either direct or as intermediaries, under the conditions laid down in those 

paragraphs.”). Consider Letter Post Regulations, Article RL 111 to Article 7 of the Universal Postal Convention of 

Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, 

page C.10, C.10-11 (Berne 2013, Update 2 – Jan. 2015) (“The following shall enjoy exemption from postal charges 

within the meaning of article 7.2 of the Convention: ... 1.3 the Information Bureaux provided for in article 136 of 

the Geneva Convention of 12 August 1949 relative to the protection of civilian persons in time of war; 1.4 the 

Central Information Agency provided for in article 140 of the latter Convention.”).

579 Refer to § 10.23.4.3 (Exemption From Postal Charges Under the Universal Postal Convention).
746

• useful information regarding the geographic location of places of internment;580

• accountability information concerning measures that States have taken with respect to 

protected persons in their power;

581

• legal documents of internees;

582

• copies of the records of the death of internees;583

• notification of measures taken by the Detaining Powers, immediately upon interning 

protected persons, for executing the provisions of the GC that address relations between 

internees and the exterior;

584 and

• official translations of the GC and of laws and regulations that parties to the conflict have 

adopted to implement it.

585

10.32.2 Monitoring or Inspecting Compliance With the GC. The Protecting Power 

monitors or inspects the Detaining Power’s compliance with the GC, including by:

• visiting places where protected persons are and interviewing them;586

• receiving petitions and complaints from internees and periodic reports from the Internee 

Committees;

587

• communicating with members of the Internee Committees and receiving the reasons for 

any refusal or dismissal of a member of an Internee Committee;588

• receiving up-to-date lists of labor detachments so its representatives may visit them;

589

• inspecting records of disciplinary punishments maintained by the commandant of the 

 580 Refer to § 10.11.1.2 (Sharing Information on the Location of Places of Internment).

581 Refer to § 10.31 (National Accounting for Protected Persons in Its Power).

582 Refer to § 10.24.2 (Legal Documents and Assistance).

583 Refer to § 10.34.2 (Death Certificates).

584 Refer to § 10.2.2.2 (Notification of Measures Taken for Implementing GC Provisions That Address Relations 

Between Internees and the Exterior).

585 GC art. 145 (“The High Contracting Parties shall communicate to one another through the Swiss Federal Council 

and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as 

the laws and regulations which they may adopt to ensure the application thereof.”).

586 Refer to § 10.33.1 (Access by Protecting Powers).

587 Refer to § 10.21.1 (Internee Right to Present Petitions and Complaints); § 10.21.3 (Periodic Reports by the 

Internee Committees).

588 Refer to § 10.22.1.1 (Approval of Internee Committee Members by the Detaining Authorities).

589 Refer to § 10.17.5 (Labor Detachments of Internees).
747

place of internment;590

• receiving notice if military necessity should require that the quantity of individual parcels 

or collective shipments be limited;591

• receiving statements of internee accounts;592 and

• receiving communications and subsequent reports of death or serious injury of an 

internee in certain cases.

593

10.32.3 Actively Working to Improve the Welfare of Protected Persons. In other 

instances, the GC contemplates that the Protecting Power will actively work to improve the 

welfare of protected persons, such as by:

• providing internees with allowances;594

• setting up special means of transport to ensure the conveyance of relief shipments to 

internees;

595 and

• lending its good offices with a view towards settling disagreements as to application or 

interpretation of the provisions of the GC between parties to the conflict.

596

10.33 ACCESS TO INTERNEES BY PROTECTING POWERS, ICRC, AND OTHER RELIEF 

ORGANIZATIONS

10.33.1 Access by Protecting Powers. Representatives or delegates of the Protecting 

Powers shall have permission to go to all places where protected persons are, particularly to 

places of internment, detention, and work.597 They shall have access to all premises occupied by 

protected persons and shall be able to interview the latter without witnesses, personally or 

through an interpreter.598 Such visits may not be prohibited except for reasons of imperative 

military necessity, and then only as an exceptional and temporary measure.599 Their duration 

 590 Refer to § 10.28.4 (Record of Disciplinary Punishments).

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

592 Refer to § 10.19.3.2 (Account Statement).

593 Refer to § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).

594 Refer to § 10.19.2 (Internee Allowances).

595 Refer to § 10.23.5 (Special Means of Transport of Shipments to Internees).

596 Refer to § 18.15.4 (Lending of Good Offices to Assist in Dispute Resolution).

597 GC art. 143 (“Representatives or delegates of the Protecting Powers shall have permission to go to all places 

where protected persons are, particularly to places of internment, detention and work.”).

598 GC art. 143 (“They shall have access to all premises occupied by protected persons and shall be able to interview 

the latter without witnesses, personally or through an interpreter.”).

599 GC art. 143 (“Such visits may not be prohibited except for reasons of imperative military necessity, and then only 

as an exceptional and temporary measure.”).
748

and frequency must not be restricted.600

Such representatives and delegates shall have full liberty to select the places they wish to 

visit.601 

10.33.1.1 Participation of Compatriots of Internees in Visits. The Detaining or 

Occupying Power, the Protecting Power, and, when the occasion arises, the Power of origin of 

the persons to be visited, may agree that compatriots of the internees shall be permitted to 

participate in the visits.602 

10.33.1.2 ICRC Delegates Enjoying the Same Prerogatives of Access. The 

delegates of the ICRC shall also enjoy the prerogatives as those of the representatives and 

delegates of the Protecting Powers described in Article 143 of the GC.603

The appointment of such delegates shall be submitted to the approval of the Power 

governing the territories where they will carry out their duties.604

10.33.2 Access by Relief Societies and Other Organizations. Subject to the measures that

the Detaining Powers may consider essential to ensure their security, or to meet any other 

reasonable need, the representatives of religious organizations, relief societies, or any other 

organizations assisting the protected persons shall receive from these Powers all facilities for 

visiting the protected persons; for distributing relief supplies and material from any source 

intended for educational, recreational, or religious purposes; or for assisting them in organizing 

their leisure time within the places of internment.605 Such societies or organizations may be 

constituted in occupied territory, in the territory of the Detaining Power, or in any other country, 

or they may have an international character.606

10.33.2.1 Limitations on the Number of Relief Organizations. The Detaining 

Power may limit the number of societies and organizations whose delegates are allowed to carry 

 600 GC art. 143 (“Their duration and frequency shall not be restricted.”).

601 GC art. 143 (“Such representatives and delegates shall have full liberty to select the places they wish to visit.”).

602 GC art. 143 (“The Detaining or Occupying Power, the Protecting Power and when occasion arises the Power of 

origin of the persons to be visited, may agree that compatriots of the internees shall be permitted to participate in the 

visits.”).

603 GC art. 143 (“The delegates of the International Committee of the Red Cross shall also enjoy the above 

prerogatives.”).

604 GC art. 143 (“The appointment of such delegates shall be submitted to the approval of the Power governing the 

territories where they will carry out their duties.”).

605 GC art. 142 (“Subject to the measures which the Detaining Powers may consider essential to ensure their security 

or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any other 

organizations assisting the protected persons, shall receive from these Powers, for themselves or their duly 

accredited agents, all facilities for visiting the protected persons, for distributing relief supplies and material from 

any source, intended for educational, recreational or religious purposes, or for assisting them in organizing their 

leisure time within the places of internment.”).

606 GC art. 142 (“Such societies or organizations may be constituted in the territory of the Detaining Power, or in any 

other country, or they may have an international character.”).
749

out their activities in its territory and under its supervision, on condition, however, that such 

limitation shall not hinder the supply of effective and adequate relief to all protected persons.607 

The special position of the ICRC in this field shall be recognized and respected at all times.608

10.34 DEATH OF INTERNEES

10.34.1 Transmittal of Wills. The Detaining Power has an obligation to help internees

with their wills, such as by receiving them for safe-keeping.

609 In the event of the death of an 

internee, his or her will shall be transmitted without delay to a person whom he or she has 

previously designated.610 

10.34.2 Death Certificates. Deaths of internees shall be certified in every case by a 

doctor, and a death certificate shall be made out, showing the causes of death and the conditions 

under which it occurred.611 

An official record of the death, duly registered, shall be drawn up in accordance with the 

procedure relating thereto in force in the territory where the place of internment is situated, and a 

duly certified copy of such record shall be transmitted without delay to the Protecting Power and 

to the Central Information Agency for protected persons.

612

10.34.3 Burial or Cremation and Inurnment. The detaining authorities shall ensure that 

internees who die while interned are honorably buried, if possible according to the rites of the 

religion to which they belonged.613

Deceased internees shall be buried in individual graves unless unavoidable circumstances 

require the use of collective graves.614 For example, an epidemic or military operations may 

require the Detaining Power to undertake collective burials in the interest of public health

 607 GC art. 142 (“The Detaining Power may limit the number of societies and organizations whose delegates are 

allowed to carry out their activities in its territory and under its supervision, on condition, however, that such 

limitation shall not hinder the supply of effective and adequate relief to all protected persons.”).

608 GC art. 142 (“The special position of the International Committee of the Red Cross in this field shall be 

recognized and respected at all times.”).

609 Refer to § 10.24.2 (Legal Documents and Assistance).

610 GC art. 129 (“[I]n the event of the death of an internee his will shall be transmitted without delay to a person 

whom he has previously designated.”).

611 GC art. 129 (“Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be 

made out, showing the causes of death and the conditions under which it occurred.”).

612 GC art. 129 (“An official record of the death, duly registered, shall be drawn up in accordance with the procedure 

relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of such 

record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in 

Article 140.”).

613 GC art. 130 (“The detaining authorities shall ensure that internees who die while interned are honourably buried, 

if possible according to the rites of the religion to which they belonged, ... .”).

614 GC art. 130 (“Deceased internees shall be buried in individual graves unless unavoidable circumstances require 

the use of collective graves.”).
750

because individual graves are not possible due to lack of time and resources.

615 

10.34.3.1 Cremation. Bodies of internees may be cremated only for imperative 

reasons of hygiene, on account of the religion of the deceased, or in accordance with his or her 

expressed wish to this effect.616 In case of cremation, the fact shall be stated and the reasons 

given in the death certificate of the deceased.617 The ashes shall be retained for safe-keeping by 

the detaining authorities and shall be transferred as soon as possible to the next of kin on their 

request.618

10.34.4 Maintenance and Records of Graves and Ashes. The detaining authorities shall 

ensure that the graves of internees who die while interned are respected, properly maintained, 

and marked in such a way that they can always be recognized.619 Ideally, the markings on the 

graves should contain at least the surname, first name, and date of birth of the dead person in 

detail and in a durable fashion.620 

As soon as circumstances permit, and not later than the close of hostilities, the Detaining 

Power shall forward lists of graves of deceased internees to the Powers on whom the deceased 

internees depended, through the National Protected Person Information Bureau.621 Such lists 

shall include all particulars necessary for the identification of the deceased internees, as well as 

the exact location of their graves.622

10.34.5 Inquiries Into Death or Serious Injury of Internees in Certain Cases. Every death 

or serious injury of an internee, caused or suspected to have been caused by a sentry, another 

 615 GC COMMENTARY 507 (“However desirable it may be to have individual graves properly marked, advocated as 

the general practice by the Convention, the Article does allow of exceptions. These would be valid for reasons of 

force majeure, during an epidemic, for example, if the death of an excessively large number of persons created a 

danger of infection which did not allow time for the digging of individual graves, or again if warlike operations 

obliged the Detaining Power to retreat and before retreating and from lack of time it undertook collective burials in 

the interests of public health.”).

616 GC art. 130 (“Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the 

deceased or in accordance with his expressed wish to this effect.”).

617 GC art. 130 (“In case of cremation, the fact shall be stated and the reasons given in the death certificate of the 

deceased.”).

618 GC art. 130 (“The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred as 

soon as possible to the next of kin on their request.”).

619 GC art. 130 (“The detaining authorities shall ensure ... that their graves are respected, properly maintained, and 

marked in such a way that they can always be recognized.”).

620 GC COMMENTARY 506-07 (“The Convention does not state how graves should be marked. The practice of 

placing individual markings on the grave showing the surname, first name and date of birth of the dead person in 

detail and in a durable fashion, is, however, particularly to be recommended to belligerents wishing to fulfill their 

obligations. The same applies to ashes in the case of cremation, as mentioned in the following paragraph.”).

621 GC art. 130 (“As soon as circumstances permit, and not later than the close of hostilities, the Detaining Power 

shall forward lists of graves of deceased internees to the Powers on whom the deceased internees depended, through 

the Information Bureaux provided for in Article 136.”).

622 GC art. 130 (“Such lists shall include all particulars necessary for the identification of the deceased internees, as 

well as the exact location of their graves.”).
751

internee, or any other person, as well as any death the cause of which is unknown, shall be 

immediately followed by an official inquiry by the Detaining Power.

623 A communication on 

this subject shall be sent immediately to the Protecting Power.624 

Serious injury, in many cases, may be understood to mean a wound that requires inpatient treatment at a hospital or infirmary.625

The evidence of any witnesses shall be taken, and a report including such evidence shall 

be prepared and forwarded to the Protecting Power.626 

If the inquiry indicates the guilt of one or more persons, the Detaining Power shall take 

all necessary steps to ensure the prosecution of the person or persons responsible.627 For 

example, depending on the circumstances, prosecutions could take place in the civil or military 

courts of the Detaining Power or in accordance with the laws in force in the territory where they 

happen to be interned.

628

10.35 RELEASE, RETURN, REPATRIATION OF INTERNEES AFTER THE CLOSE OF HOSTILITIES

10.35.1 Cessation of Internment After the Close of Hostilities. Internment shall cease as 

soon as possible after the close of hostilities.629 The GC, however, does not preclude internment 

after the close of hostilities.630 For example, internment may be necessary during occupation 

after hostilities have ended.

 623 GC art. 131 (“Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, 

another internee or any other person, as well as any death the cause of which is unknown, shall be immediately 

followed by an official enquiry by the Detaining Power.”).

624 GC art. 131 (“A communication on this subject shall be sent immediately to the Protecting Power.”).

625 GC COMMENTARY 509 (“What is meant by ‘serious injury’? During the discussion of the corresponding text 

concerning prisoners of war, one delegation suggested that it should be made clear that what was referred to was a 

wound as a result of which a prisoner required in-patient treatment in a hospital or an infirmary. This definition was 

considered too rigid and was therefore not inserted in the Convention, but it could usefully be adopted in most 

cases.”). Compare § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).

626 GC art. 131 (“The evidence of any witnesses shall be taken, and a report including such evidence shall be 

prepared and forwarded to the said Protecting Power.”).

627 GC art. 131 (“If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all 

necessary steps to ensure the prosecution of the person or persons responsible.”).

628 GC COMMENTARY 510 (“If the enquiry leads to responsibility being laid at the door of one or more persons, 

whoever they may be, they must be prosecuted before a court of law. If they are nationals of the Detaining Power, 

that Power will not be able to exempt them from prosecution before its own civil or military courts. In the case of 

internees, they will be prosecuted in accordance with the laws in force in the teritory [sic] where they happen to be 

(Article 117, paragraph 1).”).

629 GC art. 133 (“Internment shall cease as soon as possible after the close of hostilities.”).

630 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 844 (“The only change effected 

in the Stockholm text is the deletion of the words ‘and, in occupied territories, at the close of occupation’ in the first 

paragraph. The reason for the deletion was that the close of occupation necessarily means that internment by the 

Occupying Power comes to an end. The Committee did not accept the view that the retention of the remainder of 

the paragraph, i.e. the phrase ‘Internment shall cease as soon as possible after the close of hostilities’ bore the 

implication that no person could be interned after the close of hostilities.”).
752

10.35.1.1 Close of Hostilities. The phrase “close of hostilities” should be 

understood in the same sense as the phrase “cessation of active hostilities” in the GPW.631

10.35.1.2 Internees Subject to Penal Proceedings or Punishment. Internees in the 

territory of a party to the conflict, against whom penal proceedings are pending for offenses not 

exclusively subject to disciplinary penalties, may be detained until the close of such proceedings 

and, if circumstances require, until the completion of the penalty.632 The same shall apply to 

internees who have been previously sentenced to a punishment depriving them of liberty.633

10.35.2 Return to the Last Place of Residence or Repatriation. The Parties to the GC 

shall endeavor, upon the close of hostilities or occupation, to ensure the return of all internees to 

their last place of residence, or to facilitate their repatriation.634

10.35.2.1 Internees Who Resist Repatriation. Internees who resist repatriation 

need not be forcibly repatriated.635 A similar rule applies to POWs.636 U.S. policy provides that 

no person shall be transferred to another State if it is more likely than not that the person would 

be tortured in the receiving country.

637

10.35.3 Committees to Search for Dispersed Internees. By agreement between the 

Detaining Power and the Powers concerned, committees may be set up after the close of 

hostilities, or after the close of the occupation of territories, to search for dispersed internees.638

10.35.4 Costs of Returning Internees. The Detaining Power shall bear the expense of 

returning released internees to the places where they were residing when interned, or, if it took 

them into custody while they were in transit or on the high seas, the cost of completing their 

 631 GC COMMENTARY 514-15 (“The expression ‘the close of hostilities’ should be taken to mean a state of fact rather 

than the legal situation covered by laws or decrees fixing the date of cessation of hostilities. The similar provision 

concerning prisoners of war speaks of ‘the cessation of active hostilities’ and the wording of the paragraph here 

should be understood in the same sense.”). Refer to § 9.37.2 (Cessation of Active Hostilities).

632 GC art. 133 (“Internees in the territory of a Party to the conflict, against whom penal proceedings are pending for 

offences not exclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if 

circumstances require, until the completion of the penalty.”).

633 GC art. 133 (“The same shall apply to internees who have been previously sentenced to a punishment depriving 

them of liberty.”).

634 GC art. 134 (“The High Contracting Parties shall endeavour, upon the close of hostilities or occupation, to ensure 

the return of all internees to their last place of residence, or to facilitate their repatriation.”).

635 GC COMMENTARY 519 (“[I]t would be contrary to the spirit of the Convention if an internee could be forcibly 

repatriated when he feared persecution in his country of origin for his political opinions or his religious beliefs. In 

such a case he would become a refugee, obliged to seek a new domicile in a country different from the one in which 

he is living.”).

636 Refer to § 9.37.4.2 (POWs Who Resist Repatriation).

637 Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

638 GC art. 133 (“By agreement between the Detaining Power and the Powers concerned, committees may be set up 

after the close of hostilities, or of the occupation of territories, to search for dispersed internees.”).
753

journey or of their return to their point of departure.639

Where a Detaining Power refuses permission to reside in its territory to a released 

internee who previously had his or her permanent domicile there, such Detaining Power shall 

pay the cost of this internee’s repatriation.640 If, however, the internee elects to return to his or 

her country on his or her own responsibility or in obedience to the Government of the Power to 

which he or she owes allegiance, the Detaining Power need not pay the expenses of his or her 

journey beyond the point of his or her departure from its territory.641

The Detaining Power need not pay the costs of repatriation of an internee who was 

interned at his or her own request.642

If internees are transferred in accordance with Article 45 of the GC, the transferring and 

receiving Powers shall agree on the portion of the above costs to be borne by each.643

The foregoing discussion shall not prejudice such special agreements as may be 

concluded between parties to the conflict concerning the exchange and repatriation of their 

nationals in enemy hands.644

 639 GPW art. 135 (“The Detaining Power shall bear the expense of returning released internees to the places where 

they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, the 

cost of completing their journey or of their return to their point of departure.”).

640 GPW art. 135 (“Where a Detaining Power refuses permission to reside in its territory to a released internee who 

previously had his permanent domicile therein, such Detaining Power shall pay the cost of the said internee’s 

repatriation.”).

641 GPW art. 135 (“If, however, the internee elects to return to his country on his own responsibility or in obedience 

to the Government of the Power to which he owes allegiance, the Detaining Power need not pay the expenses of his 

journey beyond the point of his departure from its territory.”).

642 GPW art. 135 (“The Detaining Power need not pay the costs of repatriation of an internee who was interned at his 

own request.”).

643 GPW art. 135 (“If internees are transferred in accordance with Article 45, the transferring and receiving Powers 

shall agree on the portion of the above costs to be borne by each.”).

644 GC art. 135 (“The foregoing shall not prejudice such special agreements as may be concluded between Parties to 

the conflict concerning the exchange and repatriation of their nationals in enemy hands.”).
754

XI – Military Occupation

Chapter Contents

11.1 Introduction

11.2 When Military Occupation Law Applies

11.3 End of Occupation and Duration of GC Obligations

11.4 Legal Position of the Occupying Power

11.5 Duty of the Occupying Power to Ensure Public Order and Safety

11.6 Protection of the Population of an Occupied Territory

11.7 Authority of the Occupying Power Over Inhabitants

11.8 Administration of Occupied Territory

11.9 Local Law and Legislation

11.10 Ordinary Courts in Occupied Territory

11.11 Criminal Law in Occupied Territory

11.12 Movement of Persons in Occupied Territory

11.13 Protection of Children in Occupied Territory

11.14 Food and Medical Supplies for the Civilian Population

11.15 Public Health and Hygiene

11.16 Spiritual Assistance

11.17 Relief Efforts and Consignments

11.18 Enemy Property During Occupation

11.19 Protection of Cultural Property During Occupation

11.20 Labor of Protected Persons in Occupied Territory

11.21 Judges and Other Public Officials

11.22 Public Finances and Taxes

11.23 Other Economic Regulation of Occupied Territory

11.1 INTRODUCTION

This Chapter addresses military occupation. The GC provides specific rules for the

internment of protected persons in occupation, which are addressed in Chapter X. 

Military occupation is a temporary measure for administering territory under the control 

of invading forces, and involves a complicated, trilateral set of legal relations between the 

Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied 

territory.1

The law of belligerent occupation seeks to account for both military and humanitarian 

imperatives. The Occupying Power’s primary objective in conducting military occupation is to 

further the purpose of the war in which the occupying forces are engaged and to ensure the 

maintenance and security of those forces, but the Occupying Power is also bound to provide for 

 1 Refer to § 11.4 (Legal Position of the Occupying Power).
755

the interests and welfare of the civilian population of the occupied territory.

2

 The Occupying 

Power has obligations related to the maintenance of public order and safety, and the protection of 

civilians and property in occupied territory.3

11.1.1 Military Occupation – Notes on Terminology. 

11.1.1.1 Military Occupation, Military Government, Belligerent Occupation, and 

Martial Law. The practice of conducting military occupation is very old, and the law of military 

occupation has long been part of the law of war.

4 Military occupation is also called belligerent 

occupation. The conduct of military occupation has also been characterized as an exercise of 

“military government”5 or “martial law.”6

 2 GREENSPAN, THE MODERN LAW OF LAND WARFARE 213 (“In considering the law on military occupation the dual 

nature of such an occupation must be borne in mind. Its primary objective is to further the purpose of the war in 

which the occupying forces are engaged and to ensure the maintenance and security of those forces; yet at the same 

time the occupant is bound to provide for the interests and welfare of the civilian population of the occupied 

territory.”).

3 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

4 See, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 542 (1828) (Marshall, C.J.) (“The usage of the 

world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military 

occupation, until its fate shall be determined at the treaty of peace.”); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 

191, 195 (1815) (Marshall, C.J.) (“Some doubt has been suggested whether Santa Cruz, while in the possession of 

Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation. 

Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every 

commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he 

retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British 

island until it was restored to Denmark.”). See also WINTHROP, MILITARY LAW & PRECEDENTS 800-01 (“Instances 

in our history of military government are presented in our Revolutionary war during the occupancy by the British of 

Boston, New York and Philadelphia; at Castine, Maine, when taken and held by the British in 1814-15; and in the 

provinces of Mexico in the course of the conquest of the same by our forces in 1846-7. It was however during the 

late civil war, which, by reasons of its exceptional proportions, was assimilated to an international war, that Military 

Government was more generally and variously exercised, and its nature more fully illustrated than at any previous 

period of our history.”).

5 WINTHROP, MILITARY LAW & PRECEDENTS 799 (“By military government is meant that dominion exercised in war 

by a belligerent power over territory of the enemy invaded and occupied by him and over the inhabitants thereof. 

By most writers, prior to the appearance of the dissenting opinion of Chase, C.J., in Ex parte Milligan, this species 

of government was designated in general terms as ‘martial law,’ and thus was confused with or not properly 

distinguished from the martial law proper exerted at home under circumstances of emergency, and yet to be 

considered.”); Ex parte Milligan, 71 U.S. 2, 141-42 (1866) (Chase, C.J., separate opinion) (“There are under the 

Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised 

in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states 

or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection 

within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the 

National Government, when the public danger requires its exercise. The first of these may be called jurisdiction 

under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise 

providing for the government of the national forces; the second may be distinguished as MILITARY 

GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military 

commander under the direction of the President, with the express or implied sanction of Congress; while the third 

may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the 

action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of 
756

This manual uses the terms “military occupation,” “belligerent occupation,” and 

“occupation” to refer to situations governed by the law of belligerent occupation.

11.1.1.2 Occupying Power, Occupant, and Occupying State. Treaties or other 

legal documents may refer to the State conducting the occupation as the “Occupying Power,”

“Occupying State,” or “occupant.” This manual uses the term “Occupying Power” to refer to a 

State conducting an occupation. 

In some cases, multiple States may conduct an occupation together, and each State may 

be considered an Occupying Power.7

11.1.2 Military Occupation and Bodies of International Law. 

11.1.2.1 Military Occupation and Other Law of War Rules. In general, the law of 

war rules that are not specific to the occupation of enemy territory continue to apply to situations 

that are addressed by those rules that may arise during occupation. For example, the rules for the 

conduct of hostilities and the humane treatment of detainees apply also to combat operations and

detention operations, respectively, during occupation.

However, the fact of occupation triggers the application of additional rules specific to 

occupation.8

11.1.2.2 Occupation and the Hague IV Regulations. Articles 42 through 56 of the 

Hague IV Regulations address military occupation.

When the GC and the Hague IV Regulations are both applicable, the provisions of the 

GC regarding occupation supplement the provisions of the Hague IV Regulations regarding 

occupation.9

When the 1954 Hague Cultural Property Convention and the Hague IV Regulations are 

both applicable, the provisions of the 1954 Hague Cultural Property Convention regarding 

 

insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer 

adequately secures public safety and private rights.”).

6 LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, in consequence of the occupation, 

under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any 

public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and 

consequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law.”).

7 For example, Supplemental Brief of the United States, Apr. 22, 2005, United States of America ex rel. DR, Inc. v. 

Custer Battles, LLC, 376 F. Supp. 2d 617 (E.D. Va. 2005), 2005 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 228, 232 (“The United States and the United Kingdom, and other member states of the 

Coalition were the occupying powers in Iraq under the laws and usages of war. The CPA was the administrative 

device that the Coalition created under the laws and usages of war to perform civil government functions in liberated 

Iraq during the brief period of occupation. As an active member of the Coalition, the United States played an 

important role in, and had certain responsibilities for, the occupation, which it chose to fulfill through creation of 

and participation in the CPA.”).

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

9 Refer to § 19.16.5.2 (Relationship Between the GC and the 1899 Hague II and the 1907 Hague IV Conventions).
757

occupation supplement the provisions of the Hague IV Regulations regarding occupation.10

Although in some cases the Hague IV Regulations would not be applicable as a matter of 

treaty law because belligerent States might not be Parties to Hague IV, many of the provisions in 

Articles 42 through 56 of the Hague IV Regulations reflect customary international law.11 For 

example, Article 42 of the Hague IV Regulations, which provides a standard for when the law of 

belligerent occupation applies, is regarded as customary international law.12

11.1.2.3 Occupation and the 1949 Geneva Conventions. Common Article 2 of 

the 1949 Geneva Conventions provides that “[t]he Convention shall also apply to all cases of 

partial or total occupation of the territory of a High Contracting Party, even if the said occupation 

meets with no armed resistance.”13

Articles 47 through 78 of the GC specifically address occupied territories.14 Other 

provisions of the GC also apply to occupied territory. For example, Articles 27 through 34 of the 

GC contain provisions common to the territories of parties to the conflict and to occupied 

territories.15

11.1.2.4 Occupation and the 1954 Hague Cultural Property Convention. The

1954 Hague Cultural Property Convention applies to all cases of partial or total occupation of the 

territory of a High Contracting Party, even if this occupation meets with no armed resistance.16

The 1954 Hague Cultural Property Convention and the Regulations for the Execution of 

the 1954 Hague Cultural Property Convention also have provisions that explicitly address 

occupation.17

 10 Refer to § 19.17.1.1 (Relationship Between the 1954 Hague Cultural Property Convention and Certain 1899 and 

1907 Hague Conventions).

11 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 253-54 (“With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article 

6, Section (b), of the Charter were already recognized as War Crimes under international law. They were covered 

by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva 

Convention of 1929. ... But it is argued that the Hague Convention does not apply in this case, because of the 

‘general participation’ clause in Article 2 of the Hague Convention of 1907. ... The rules of land warfare expressed 

in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. 

But the convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it 

thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all 

civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in 

Article 6 (b) of the Charter.”).

12 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

13 GWS art. 2; GWS-SEA art. 2; GPW art. 2; GC art. 2.

14 Refer to § 19.16.5.1 (Application of Different Parts of the GC).

15 Refer to § 19.16.5.1 (Application of Different Parts of the GC).

16 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“The Convention shall also apply to all cases of partial 

or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed 

resistance.”).

17 Refer to § 11.19 (Protection of Cultural Property During Occupation).
758

11.1.2.5 Occupation and U.N. Security Council Resolutions. The U.N. Security 

Council may call upon Occupying Powers to comply with existing international law.18

Acting under the Charter of the United Nations, the U.N. Security Council may also 

establish authorities or limitations that might interact with those otherwise applicable under 

occupation law.

19 For example, a U.N. Security Council authorization may provide additional 

authority for an Occupying Power to govern occupied territory.20 

In cases of conflict with obligations in other treaties or under customary international 

law, such obligations provided by the U.N. Security Council may prevail.21 Thus, such authority 

may be used to take action that would not otherwise be permissible under the law of belligerent 

occupation.

11.1.2.6 Occupation and the ICCPR and Other Human Rights Treaties. It has 

been the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does

not create obligations for an Occupying Power with respect to occupied territory because a 

contracting State’s obligations under the ICCPR only extend to persons within its territory and 

subject to its jurisdiction.22 Although persons within occupied territory are subject to the 

jurisdiction of the Occupying Power for certain purposes, they are not within the Occupying 

Power’s national territory. This limit to the scope of the ICCPR’s obligations was proposed by 

the United States to preclude the creation of obligations for States with respect to territories that 

 18 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶5 (May 22, 2003) (“Calls 

upon all concerned to comply fully with their obligations under international law including in particular the Geneva 

Conventions of 1949 and the Hague Regulations of 1907;”).

19 For example, John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council 

Resolutions and the Application of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005, 

2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 957-58 (“Prior to the Iraq intervention, lawyers 

for the United States and its Coalition partners thoroughly analyzed a complex range of issues related to the 

expected occupation of Iraq. This review involved developing an understanding of how the law of occupation—in 

particular the Hague Regulations and Geneva Convention—would likely apply to Coalition activities. At the same 

time, there already existed a broad and complex range of Chapter VII Security Council resolutions addressing a 

number of issues, including Iraqi requirements to disarm, economic and arms embargos, and restrictions related to 

the production and sale of Iraqi petroleum products. As the Coalition analyzed the principles of occupation law, we 

were careful also to analyze the extent to which pre-existing Chapter VII resolutions included provisions that might 

themselves establish authorities or limitations that might interact with those otherwise applicable under occupation 

law.”).

20 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶4 (May 22, 2003) (“Calls 

upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to 

promote the welfare of the Iraqi people through the effective administration of the territory, including in particular 

working towards the restoration of conditions of security and stability and the creation of conditions in which the 

Iraqi people can freely determine their own political future;”); Coalition Provisional Authority Regulation No. 1, 

§1(1) (May 16, 2003) (“The CPA is vested with all executive, legislative and judicial authority necessary to achieve 

its objectives, to be exercised under relevant U.N. Security Council resolutions, including Resolution 1483 (2003), 

and the laws and usages of war. This authority shall be exercised by the CPA Administrator.”).

21 Refer to § 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions); § 3.5.4

(U.N. Security Council Decisions and Jus in Bello).

22 Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).
759

they occupied, such as post-World War II Germany and Japan.

23

In addition, the law of belligerent occupation is specially crafted to address the situation 

of belligerent occupation. Thus, in cases of apparent conflict with other provisions of law that 

are not intended to address the situation of belligerent occupation, there might be a presumption 

that such provisions would not conflict with occupation law, or that occupation law likely would 

prevail when addressing the situation of belligerent occupation.

24

Other States, such as some coalition partners, may interpret their human rights treaty 

obligations to create obligations for their military operations outside their home territory in the 

context of belligerent occupation.25

Subject to the Occupying Power’s authority to change local law,26 an occupied State’s 

domestic law that has been enacted pursuant to its human rights treaty obligations or that meets 

the requirements of the occupied State’s human rights treaty obligations may continue to apply 

during an occupation.

11.1.3 Application of Occupation Law to Situations Not Constituting Belligerent 

Occupation. The law of belligerent occupation is only applicable as a matter of law when certain 

conditions have been met.27 The law of belligerent occupation generally does not apply to (1) 

mere invasion; (2) liberation of friendly territory; (3) non-international armed conflict; or (4) 

post-war situations (except for certain provisions of the GC). Nonetheless, it may be appropriate

to apply rules from the law of belligerent occupation in such situations.

11.1.3.1 Mere Invasion. Mere physical presence of a belligerent’s military forces

in the territory of its enemy alone does not constitute military occupation. Such presence might

not constitute an effective and firm possession of enemy territory, or the belligerent State might 

 23 Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on Human Rights, Sixth Session, 

Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. Doc. E/CN.4/SR.138 ¶34 (Apr. 6, 1950) (“The 

purpose of the proposed addition was to make it clear that the draft Covenant would apply only to persons within the 

territory and subject to the jurisdiction of contracting States. The United States was afraid that without such an 

addition the draft Covenant might be construed as obliging the contracting States to enact legislation concerning 

persons who, although outside its territory were technically within its jurisdiction for certain purposes. An 

illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were 

subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of the legislation of 

those States. Another illustration would be the case of leased territories: some countries leased certain territories 

from others for limited purposes, and there might be questions of conflicting authority between the lessor nation and 

the lessee nation.”). See also Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on 

Human Rights, Sixth Session, Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. Doc. 

E/CN.4/SR.194 ¶14 (May 16, 1950) (“That [insertion of language] would limit the application of the covenant only 

to persons within its territory and subject to its jurisdiction. By this amendment the United States Government 

would not, by ratifying the covenant, be assuming an obligation to ensure the rights recognized in it to the citizens of 

countries under United States occupation.”).

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

25 Refer to § 1.6.3.2 (Different Views on the Applicability of Human Rights Treaties).

26 Refer to § 11.9 (Local Law and Legislation).

27 Refer to § 11.2 (When Military Occupation Law Applies).
760

lack the intention to displace and substitute the enemy State’s authority with its own.28

Guidance for the U.S. armed forces has sought, to the extent possible, to apply the rules 

of the law of occupation as a matter of policy to areas through which U.S. forces are passing, and 

even on the battlefield.29

11.1.3.2 Liberation of Friendly Territory. The law of belligerent occupation does 

not apply to the liberation of friendly territory.

30 Indeed, a belligerent occupation presupposes 

that the Occupying Power is hostile in relation to the State whose territory is being occupied.31

The administration of liberated territory may be conducted in accordance with a civil 

affairs agreement between the co-belligerent States.32 In the absence of such an agreement, a 

military government may be established in the area as a provisional and interim measure.33 The 

law of belligerent occupation may provide appropriate rules to apply by analogy, pending an 

agreement with the lawful government.34

11.1.3.3 Occupation and Non-International Armed Conflict. The law of 

 28 Refer to § 11.2.2.1 (“Actually Placed” – Effectiveness of Occupation); § 11.2.2.2 (“Under the Authority” –

Suspension and Substitution of Governmental Authority).

29 1956 FM 27-10 (Change No. 1 1976) ¶352 (“b. Application of Law of Occupation. The rules set forth in this 

chapter apply of their own force only to belligerently occupied areas, but they should, as a matter of policy, be 

observed as far as possible in areas through which troops are passing and even on the battlefield.”).

30 See FM 27-10 (Change No. 1 1976) ¶354 (“Civil affairs administration is that form of administration established 

in friendly territory whereby a foreign government pursuant to an agreement, expressed or implied, with the 

government of the area concerned, may exercise certain authority normally the function of the local government. 

Such administration is often established in areas which are freed from enemy occupation. It is normally required 

when the government of the area concerned is unable or unwilling to assume full responsibility for its 

administration. Territory subject to civil affairs administration is not considered to be occupied.”); Raymund T. 

Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 417 (1953) (“While the Civilian 

Convention contains no definition of ‘occupation,’ probably nothing could be added to the principle in Hague 

Article 42 that ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. 

‘The convention will not apply in liberated territory of an allied country such as France in 1944 in relation to the 

United States and the United Kingdom.”).

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

32 For example, Directives and Agreements in Civil Affairs in France, Aug. 25, 1944, reprinted in U.S. ARMY,

JUDGE ADVOCATE GENERAL SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS

10 (1958) (“As a result of discussions between American, British, and French representatives, agreement has been 

reached on the practical arrangements for civil affairs administration in Continental France.”).

33 1956 FM 27-10 (Change No. 1 1976) ¶354 (“If circumstances have precluded the conclusion of a civil affairs 

agreement with the lawful government of allied territory recovered from enemy occupation or of other territory 

liberated from the enemy, military government may be established in the area as a provisional and interim measure 

(see par. 12b and c). A civil affairs agreement should, however, be concluded with the lawful government at the 

earliest possible opportunity.”).

34 1958 UK MANUAL ¶499 note 3(b) (“Where it is not possible to conclude ‘Civil Affairs’ agreement before the 

liberation of allied territory, there may be an interregnum between invasion of such territory and the assumption of 

authority on the part of the domestic civilian government. In such a situation the powers and restraints applicable to 

an occupant by international law ought to apply as a minimum standard until such time as a ‘Civil Affairs’ 

agreement can be concluded.”).
761

belligerent occupation does not address non-international armed conflict as such because a 

belligerent occupation presupposes that the Occupying Power is hostile in relation to the State 

whose territory is being occupied.

35 A State’s military forces controlling its own territory would 

not be regarded as conducting an occupation; similarly, foreign forces conducting operations 

with the consent of the territorial State would also not be regarded as conducting an 

occupation.36

However, the law of belligerent occupation may be applicable to a non-international 

armed conflict when a non-State party to the conflict has been recognized as a belligerent.37 In 

addition, a non-international armed conflict could be regarded as taking place in the context of, 

or alongside, an occupation.38

11.1.3.4 Occupation and Post-War Situations. Before the GC was adopted and 

entered into force, the law of belligerent occupation was not applicable when a state of hostilities 

had completely ceased.39 The general inapplicability of the law of belligerent occupation to 

post-war situations may be viewed as resulting from the law of belligerent occupation 

presupposing that a hostile relationship exists between the invading force’s State and the State of 

the occupied territory.

40 For example, if the State of the occupied territory unconditionally 

surrendered and any international armed conflict completely ended, the law of belligerent 

occupation was not applicable.41

 35 Refer to § 17.1.3.1 (Nationality and Territoriality Exclusions in the Law of International Armed Conflict).

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

37 Refer to § 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).

38 For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq 

Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 36 (“The 

United States is currently involved in two armed conflicts that are relevant to our analysis: the armed conflict with 

and occupation of Iraq, and the armed conflict with al Qaeda. In this Part we analyze how article 2 applies to each 

conflict considered independently. This analysis is not conclusive as to how GC applies when the two conflicts 

become intertwined, as they may when al Qaeda operatives carry on their armed conflict against the United States in 

occupied Iraq. This latter issue is addressed in Part III, infra.”). Compare § 3.3.1.2 (Mixed Conflicts Between 

Opposing States and Non-State Armed Groups).

39 For example, Forrest Hannaman, Chief of the Legal Service Division of the Office of the United States High 

Commissioner for Germany, Letter to the Judge Advocate Division of EUCOM (Jan. 28, 1952), X WHITEMAN’S 

DIGEST 595-96 (“The position of the United States that the Hague Regulations do not apply to the post-capitulation 

period of the present occupation of German [was noted by] the Military Governor in a First Indorsement to the 

Commander-in-Chief, European Command, dated January 7, 1948 (AG 386.3LD), [which] stated inter alia: ‘... it 

appears that the French authorities are interested in the policy of the United States in regard to the treatment of 

property owned or used by the Wehrmacht and in the applicability of the Annex to Hague Convention IV of 1907 to 

that question ... With respect to the applicability at the present time of the Annex ... the Legal Division of this 

Headquarters has expressed the view ... that since the period of hostilities has ended, the provisions of Section III of 

the Annex to Hague Convention IV of 1907 ‘do not literally apply to the present occupation of Germany’ ...’”) 

(amendments shown in Digest).

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

41 For example, United States v. Altstoetter, et al., III TRIALS OF WAR CRIMINALS BEFORE THE NMT 960 (“It is this 

fact of the complete disintegration of the government in Germany, followed by unconditional surrender and by 

occupation of the territory, which explains and justifies the assumption and exercise of supreme governmental 

power by the Allies. The same fact distinguishes the present occupation of Germany from the type of occupation 
762

The GC, however, continues to apply in occupied territory until one year after the general 

close of military operations, and the Occupying Power is bound, for the duration of the 

occupation, to the extent that such State exercises the functions of government in such territory, 

by the provisions of certain articles of the GC.

42 Additionally, protected persons under the GC

who remain in the custody of the Occupying Power following the end of occupation retain that 

protection until their release, repatriation, or re-establishment.43

In addition, it may be appropriate to adhere to the rules of belligerent occupation or to 

apply those rules by analogy even if not applicable as a matter of law in post-conflict 

situations.

44 The rules of belligerent occupation may reflect fundamental safeguards applicable 

to a wider range of situations.45

 

which occurs when, in the course of actual warfare, an invading army enters and occupies the territory of another 

state, whose government is still in existence and is in receipt of international recognition, and whose armies, with 

those of its allies, are still in the field. In the latter case the occupying power is subject to the limitations imposed 

upon it by the Hague Convention and by the laws and customs of war. In the former case (the occupation of 

Germany) the Allied Powers were not subject to those limitations. By reason of the complete breakdown of 

government, industry, agriculture, and supply, they were under an imperative humanitarian duty of far wider scope 

to reorganize government and industry and to foster local democratic governmental agencies throughout the 

territory.”).

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

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

44 For example, Forrest Hannaman, Chief Legal Advice Division, Memorandum to Office of Economic Affairs –

Finance Division on Revenues from Laender-Owned Property (Mar. 30, 1951), reprinted in XX SELECTED 

OPINIONS JANUARY 1, 1951 – APRIL 30, 1951 OF OFFICE OF THE UNITED STATES HIGH COMMISSIONER FOR 

GERMANY, OFFICE OF GENERAL COUNSEL, FRANKFURT, GERMANY, 57-58 (“The Hague Regulations were designed 

to define the powers of a belligerent occupant of enemy territory during, or shortly after, hostilities. As such, they 

cannot be considered literally applicable to the situation in Germany today, and we cannot consider without 

reflection that the occupying powers may exercise to their full extent powers which a belligerent occupant might 

rightfully exercise under the Regulations. Insofar as there exists an accepted custom and practice of nations relevant 

to our situation it is largely our own practice, since our present situation is without international precedent. In 

determining any concrete problem of this nature it has consistently been the position of the legal advisors to 

OMGUS and HICOG that whenever, in light of the actual problem and all of the relevant factors, the Hague 

Regulations may be considered as expressing principles of international law which are pertinent to our situation, 

those principles should be observed by us.”); Major G.B. Crook and Major W.G. Downey, Memorandum for the 

Judge Advocate General, Present Applicability of Hague and Geneva Conventions in Germany, reprinted in Ernst 

H. Feilchenfeld and Members of the Institute of World Polity, Status of Germany, 1 WORLD POLITY 182, 196 (1958) 

(“We conclude, therefore, that: a. The authority of the Allied Control Council and of the United States zone 

commander in occupied Germany is not limited by the provisions of Section III of the Regulations annexed to the 

Hague Convention IV (1907) and such Regulations have not been applicable to the occupation of Germany since 5 

June 1945. ... The general rules expressed in the Hague Regulations will be considered as guiding principles unless 

and until specific U.S. or Allied occupation policies require deviation.”).

45 1956 FM 27-10 (Change No. 1 1976) ¶10 (“However, certain designated provisions of the Geneva Conventions of 

1949 (see GC, art. 6; par 249 herein) continue to be operative, notwithstanding the termination of any antecedent 

hostilities, during the continuance of a military occupation. Insofar as the unwritten law of war and the Hague 

Regulations extend certain fundamental safeguards to the persons and property of the populations of occupied 

territory, their protection continues until the termination of any occupation having its origin in the military 

supremacy of the occupant, notwithstanding the fact the Geneva Convention relative to the Protection of Civilian 

Persons may have ceased to be applicable.”).
763

11.2 WHEN MILITARY OCCUPATION LAW APPLIES

The law of military occupation applies when a military occupation exists in fact. 

Even if the requirements of the law of belligerent occupation do not apply as a matter of 

law, general law of war principles and rules, such as those for the conduct of hostilities, continue 

to apply.46

Military Occupation as a Fact. Military occupation is a question of fact.47 11.2.1 The 

legal consequences arising from the fact of occupation (i.e., that this fact is the basis for both 

rights and duties) illustrates how the law of war may be viewed as both permissive and restrictive 

in nature.48 

The fact of occupation is the basis for the Occupying Power to exercise authority over the 

occupied territory.49 The fact of occupation, as a requirement for the exercise of authority over 

the occupied territory, prevents a State from simply claiming the authorities of military 

government over an enemy territory without actually controlling such territory.50

The fact of occupation also imposes certain duties on the Occupying Power with respect 

to occupied territory.51 The fact of occupation, as a requirement for triggering the duties of an 

Occupying Power, means that a State that does not, in fact, occupy an area, does not incur the 

obligations of an Occupying Power.

Once an occupation exists in fact, regardless of whether the invasion was lawful or 

 46 Eritrea-Ethiopia Claims Commission, Partial Award – Western Front, Aerial Bombardment and Related Claims, 

Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶27 (Dec. 19, 2005) (“The Commission agrees that the Ethiopian 

military presence was more transitory in most towns and villages on the Western Front than it was on the Central 

Front, where the Commission found Ethiopia to be an occupying power. The Commission also recognizes that not 

all of the obligations of Section III of Part III of Geneva Convention IV (the section that deals with occupied 

territories) can reasonably be applied to an armed force anticipating combat and present in an area for only a few 

days. Nevertheless, a State is obligated by the remainder of that Convention and by customary international 

humanitarian law to take appropriate measures to protect enemy civilians and civilian property present within areas 

under the control of its armed forces. Even in areas where combat is occurring, civilians and civilian objects cannot 

lawfully be made objects of attack.”).

47 1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact.”).

48 Refer to § 1.3.3 (Restrictive and Permissive Character of the Law of War).

49 See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 799 (“The authority for military government is the fact of 

occupation. Not a mere temporary occupation of enemy’s country on the march, but a settled and established one. 

Mere invasion, the presence of the hostile army in the country, is not sufficient. There must be a full possession, a 

firm holding, a government de facto.”); MacLeod v. United States, 229 U.S. 416, 425 (1913) (“There has been 

considerable discussion in the cases and in works of authoritative writers upon the subject of what constitutes an 

occupation which will give the right to exercise governmental authority. Such occupation is not merely invasion, 

but is invasion plus possession of the enemy’s country for the purpose of holding it temporarily at least.”); United 

States v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine, the enemy 

acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place.”).

50 Compare § 13.10.2.3 (Effectiveness of the Blockade).

51 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).
764

unlawful under jus ad bellum, the rights and duties of the Occupying Power and the population 

in relation to each other apply.52 This application of the law of belligerent occupation is an 

example of how jus in bello rules and jus ad bellum rules generally operate independently of one 

another.53

11.2.2 Standard for Determining When Territory Is Considered Occupied. Territory is 

considered occupied when it is actually placed under the authority of the hostile forces.

54

This standard for when the law of belligerent occupation applies is reflected in Article 42 

of the Hague IV Regulations and is regarded as customary international law.55

11.2.2.1 “Actually Placed” – Effectiveness of Occupation. Military occupation 

must be actual and effective; that is, the organized resistance must have been overcome, and the 

Occupying Power must have taken measures to establish its authority.

56

It is sufficient that the occupying force can, within a reasonable time, send detachments 

of forces to enforce its authority within the occupied district. Military occupation does not 

require the presence of military forces in every populated area, although the occupying force 

must, inter alia, control the most important places.57

The type of forces used to maintain the authority of the Occupying Power is not material. 

 52 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1247 

(“At the outset, we desire to point out that international law makes no distinction between a lawful and an unlawful 

occupant in dealing with the respective duties of occupant and population in occupied territory. There is no 

reciprocal connection between the manner of the military occupation of territory and the rights and duties of the 

occupant and population to each other after the relationship has in fact been established. Whether the invasion was 

lawful or criminal is not an important factor in the consideration of this subject.”).

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

54 HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of the 

hostile army. The occupation extends only to the territory where such authority has been established and can be 

exercised.”).

55 See, e.g., Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under 

the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37 footnote 1 

(“The Hague Regulations do not apply to the United States’ conflict with and occupation of Iraq as a matter of 

treaty law because Iraq is not a party to the Hague Convention. ... But as the citations in the text make clear, article 

42(1) of the Hague Regulations, which provides that occupation begins ‘when [territory] is actually placed under the 

authority of the hostile army,’ reflects customary international law.”); Armed Activities on the Territory of the 

Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 168, 229 (¶172) (“[U]nder customary 

international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied 

when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory 

where such authority has been established and can be exercised ... .”).

56 1956 FM 27-10 (Change No. 1 1976) ¶356 (“It follows from the definition that belligerent occupation must be 

both actual and effective, that is, the organized resistance must have been overcome and the force in possession must 

have taken measures to establish its authority.”).

57 Keely v. Sanders, 99 U.S. 441, 447 (1878) (“No conquering army occupies the entire territory conquered. Its

authority is established when it occupies and holds securely the most important places, and when there is no 

opposing governmental authority within the territory. The inability of any other power to establish and maintain 

governmental authority therein is the test.”).
765

For example, the occupation might be maintained by permanently based units or mobile forces, 

either of which would be able to send detachments of forces to enforce the authority of the 

Occupying Power within the occupied district.58 However, air superiority alone would not 

constitute an effective occupation. 

Similarly, as long as the occupation is effective, there is no precise number of forces that 

are considered necessary to constitute an effective occupation. The number of forces necessary 

to maintain effective occupation will depend on various considerations, such as the disposition of 

the inhabitants, the number and density of the population, the nature of the terrain, and similar 

factors.59

An occupation may be effective despite the existence of areas in the enemy State that are 

temporarily controlled by enemy forces or pockets of resistance. For example, the fact that a 

defended location (such as a city or town) still controlled by enemy forces exists within an area 

declared occupied by the Occupying Power does not render the occupation of the remainder of 

the area invalid, provided that continued resistance in such place or defended zone does not 

render the occupier unable to exercise control over the remainder of the occupied territory.60 

Similarly, an occupation may continue to be effective despite intermittent insurgent attacks or 

temporary seizures of territory by resistance forces.

61

11.2.2.2 “Under the Authority” – Suspension and Substitution of Governmental 

Authority. Occupation also requires the suspension of the territorial State’s authority and the 

substitution of the Occupying Power’s authority for the territorial State’s authority.

62

The territorial State must be rendered incapable of publicly exercising its authority in the 

 58 1956 FM 27-10 (Change No. 1 1976) ¶356 (“It is sufficient that the occupying force can, within a reasonable time, 

send detachments of troops to make its authority felt within the occupied district. It is immaterial whether the 

authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so 

long as the occupation is effective.”).

59 1956 FM 27-10 (Change No. 1 1976) ¶356 (“The number of troops necessary to maintain effective occupation 

will depend on various considerations such as the disposition of the inhabitants, the number and density of the 

population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within the 

occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder 

of the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation 

ineffective.”).

60 1958 UK MANUAL ¶502 (“The fact that there is a defended place or zone still in possession of the national forces 

within an occupied district does not make the occupation of the remainder invalid, provided that such place or 

defended zone is surrounded and effectively cut off from the rest of the occupied district.”).

61 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1243 (“It is 

clear that the German armed forces were able to maintain control of Greece and Yugoslavia until they evacuated 

them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various 

times, it is established that the Germans could at any time they desired assume physical control of any part of the 

country. The control of the resistance forces was temporary only and not such as would deprive the German armed 

forces of its status of an occupant.”).

62 LIEBER CODE art. 3 (“Martial Law in a hostile country consists in the suspension, by the occupying military 

authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or 

territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as 

far as military necessity requires this suspension, substitution, or dictation.”).
766

territory, and the Occupying Power must substitute its authority for that of the territorial State.

63 

Invading forces in possession of the territory must have taken measures to establish their 

authority.64 For example, such measures may include establishing its own governmental 

authority for that area and making regulations for the conduct of temporary government.

65 The 

suspension and substitution of authority may take place with local authorities continuing to 

administer territory subject to the paramount authority of the Occupying Power.

66 On the other 

hand, routine measures necessary to provide for unit security (e.g., warning private persons not 

to threaten or interfere with military operations) would not necessarily constitute measures to 

establish authority over enemy territory.

The substitution of authority by the Occupying Power may be shown by a proclamation 

of occupation, although such a proclamation is not required.

67

11.2.2.3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy 

Territory. Occupation occurs when territory is actually placed under the authority of the hostile 

army. Thus, the existence of an occupation presupposes a hostile relationship between the 

invading force’s State and the State of the occupied territory, although the occupation need not 

 63 1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact. It presupposes a hostile 

invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of 

publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the 

legitimate government in the territory invaded.”). See also Armed Activities on the Territory of the Congo 

(Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 165, 230 (¶¶173-74) (“In order to reach a 

conclusion as to whether a State, the military forces of which are present on the territory of another State as a result 

of an intervention, is an ‘occupying Power’ in the meaning of the term as understood in jus in bello, the Court must 

examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and 

exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself 

that the Ugandan armed forces in the DRC were not only stationed in particular locations, but also that they had 

substituted their own authority for that of the Congolese Government ... . [T]he territorial limits of any zone of 

occupation by Uganda in the DRC cannot be determined by simply drawing a line connecting the geographical 

locations where Ugandan troops were present as has been done on the sketch-map presented by the DRC (see 

paragraphs 55 and 73 above).”).

64 GREENSPAN, THE MODERN LAW OF LAND WARFARE 213-14 (“An occupant sets up some form of administration 

in the territory, an invader merely passing through it does not.”).

65 For example, MacLeod v. United States, 229 U.S. 416, 424-25 (1913) (“When the Spanish fleet was destroyed at 

Manila, May 1, 1898, it became apparent that the Government of the United States might be required to take the 

necessary steps to make provision for the government and control of such part of the Philippines as might come into 

the military occupation of the forces of the United States. The right to thus occupy an enemy’s country and 

temporarily provide for its government has been recognized by previous action of the executive authority and 

sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its 

own authority and make rules and regulations for the conduct of temporary government, and to that end may collect 

taxes and duties to support the military authority and carry on operations incident to the occupation. Such was the 

course of the Government with respect to the territory acquired by conquest and afterwards ceded by the Mexican 

Government to the United States.”).

66 Refer to § 11.8.2 (Continued Performance of Duties by Civil Servants and Other Officials of Local Governments).

67 Refer to § 11.2.4 (Proclamation of Occupation).
767

be met with armed resistance.

68

For example, the law of belligerent occupation would not apply to the use of military 

forces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or 

non-international armed conflict.

69

Similarly, the law of belligerent occupation would not apply to the liberation of friendly 

territory that was previously occupied by the enemy.70

The requirement of a hostile relationship between the invading force’s State and the State 

of the occupied territory also prevents the law of belligerent occupation from applying to postconflict situations (except for certain provisions of the GC).

71

11.2.3 Scope of Occupied Territory. The occupation extends only to the territory where 

such authority has been established and can be exercised.72

For example, a State may remain in control of part of its territory while the remainder of 

its territory is under occupation. The 1949 Geneva Conventions apply in cases of partial or total 

occupation of a State.73 

The end of occupation in one part of occupied territory does not end the occupation in 

other parts of the occupied territory where the Occupying Power maintains its authority.

11.2.4 Proclamation of Occupation. Due to the special relations established between the 

civilian population of the occupied territory and the Occupying Power, the fact of military 

occupation and the territory over which it extends should be made known to the citizens of the 

occupied territory and to other States. 

However, there is no specific legal requirement that the Occupying Power issue a 

proclamation of military occupation.74

 68 GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a High 

Contracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art. 

2 (same); GC art. 2 (same).

69 Refer to § 11.1.3.3 (Occupation and Non-International Armed Conflict).

70 Refer to § 11.1.3.2 (Liberation of Friendly Territory).

71 Refer to § 11.1.3.4 (Occupation and Post-War Situations).

72 HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of the 

hostile army. The occupation extends only to the territory where such authority has been established and can be 

exercised.”).

73 Refer to § 11.1.2.3 (Occupation and the 1949 Geneva Conventions).

74 1956 FM 27-10 (Change No. 1 1976) ¶357 (“In a strict legal sense no proclamation of military occupation is 

necessary. However, on account of the special relations established between the inhabitants of the occupied territory 

and the occupant by virtue of the presence of occupying forces, the fact of military occupation, with the extent of 

territory affected, should be made known. The practice of the United States is to make this fact known by 

proclamation.”); 1914 RULES OF LAND WARFARE ¶292 (“In a strict legal sense no proclamation of military 

occupation is necessary. On account of the special relations established between the inhabitants of the occupied 
768

The question of whether territory is occupied does not depend upon the issuance of any 

particular proclamation or other instrument. Territory may be occupied even though no 

proclamation of occupation has been issued. Conversely, the issuance of proclamation of 

occupation does not empower a State with the rights of an Occupying Power if it does not 

control such territory in fact. 

A proclamation may help fix the date of the beginning of the occupation.75 The 

proclamation may also advise inhabitants of occupied territory of the rules with which they must 

comply.76 In particular, the proclamation may be used to advise inhabitants of changes to law, 

including penal law.77

The general practice of the United States has been to make the fact of occupation known 

by proclamation or similar notice.

78 In addition to giving notice to the inhabitants of occupied 

 

territory and the occupant, by virtue of the presence of the invading force, the fact of military occupation, with the 

extent of terrritorry [sic] affected by the same, should be made known. The practice in this country is to make this 

fact known by proclamation.”); LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, in 

consequence of the occupation, under the Martial Law of the invading or occupying army, whether any 

proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law 

is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army 

proclaims its Martial Law.”).

75 For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq 

Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37 

(“Applying this standard, the United States became an occupying power no later than April 16, 2003, the date on 

which General Tommy Franks announced the creation of the ‘Coalition Provisional Authority to exercise powers of 

government temporarily, and as necessary, especially to provide security, to allow the delivery of humanitarian aid 

and to eliminate weapons of mass destruction.’ See Tommy R. Franks, Freedom Message to the Iraqi People (Apr. 

16, 2003)”); The Venice, 69 U.S. 258, 276 (1865) (“The transports conveying the troops under the command of 

Major-General Butler, commanding the Department of the Gulf, arrived on the 1st of May, and the actual 

occupation of the city was begun. There was no armed resistance, but abundant manifestations of hostile spirit and 

temper both by the people and the authorities. The landing of the troops was completed on the 2d of May, and on 

the 6th a proclamation of General Butler, which had been prepared and dated on the 1st, and the next day printed by 

some soldiers, in an office seized for the purpose, was published in the newspapers of the city. Some copies of the 

proclamation had been previously distributed to individuals, but it was not made known to the population generally 

until thus published. There was no hostile demonstration, and no disturbance afterwards; and we think that the 

military occupation of the city of New Orleans may be considered as substantially complete from the date of this 

publication; and that all the rights and obligations resulting from such occupation, or from the terms of the 

proclamation, may be properly regarded as existing from that time. This proclamation declared the city to be under 

martial law, and announced the principles by which the commanding general would be guided in its 

administration.”).

76 For example, 1958 UK MANUAL ¶504 note 1 (“The practice in this matter in past wars appears to have been 

variable. Frequently the inhabitants were only warned to behave peaceably, not to communicate with the enemy, 

and to comply with requisitions; as for instance when the British troops entered France in 1813 and 1815. In 1870, 

in France, the Germans generally, but not always, proclaimed military jurisdiction directly[;] they took possession of 

a locality, by posting a notice which gave a list of offences against the troops for which the penalty of death would 

be inflicted.”).

77 Refer to § 11.9.3 (Procedural Obligation – Notification to the Population of Changes in Law); § 11.11.2.1

(Publication of Penal Provisions Before Coming Into Force).

78 For example, Coalition Provisional Authority Regulation No. 1, §1(1) (May 16, 2003) (“The CPA shall exercise 

powers of government temporarily in order to provide for the effective administration of Iraq during the period of 

transitional administration ... .”).
769

territory, notice may be given to other governments.

79 In some cases, the U.N. Security Council 

has recognized the fact of occupation.80

11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS

The status of belligerent occupation ends when the conditions for its application are no 

longer met. Certain GC obligations with respect to occupied territory continue for the duration 

of the occupation after the general close of military operations.

11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its 

application are no longer met.81 In particular, as discussed below, the status of belligerent 

occupation ceases when the invader no longer factually governs the occupied territory or when a 

hostile relationship no longer exists between the State of the occupied territory and the 

Occupying Power.

82

Belligerent occupation ends when the Occupying Power no longer has effectively placed 

the occupied territory under its control.

83 For example, an uprising by the local population may 

prevent the Occupying Power from actually enforcing its authority over occupied territory. 

Similarly, the Occupying Power’s expulsion or complete withdrawal from the territory would 

also suffice because the former Occupying Power generally would not be able to control 

sufficiently the occupied territory.

Belligerent occupation also may end when a hostile relationship no longer exists between 

the Occupying Power and the State of the occupied territory (although, as discussed in the 

following subsection, certain GC obligations may continue to apply).

84 For example, if a new,

 79 For example, John D. Negroponte & Jeremy Greenstock, Letter Dated 8 May 2003 from the Permanent 

Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to 

the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/538 (“the United States, 

the United Kingdom, and Coalition partners, acting under existing command and control arrangements through the 

Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of 

Reconstruction and Humanitarian Assistance, to exercise the powers of government temporarily, and, as necessary, 

especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass 

destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition 

Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq ... .”).

80 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, 2 (May 22, 2003) (“Noting the 

letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom 

of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the 

specific authorities, responsibilities, and obligations under applicable international law of these states as occupying 

powers under unified command (the ‘Authority’),”); U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc. 

S/RES/661 (1990) (Aug. 6, 1990) (“Determined to bring the invasion and occupation of Kuwait by Iraq to an end 

and to restore the sovereignty, independence and territorial integrity of Kuwait,”).

81 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

82 WINTHROP, MILITARY LAW & PRECEDENTS 801 (“The status of military government continues from the inception 

of the actual occupation till the invader is expelled by force of arms, or himself abandons the conquest, or till, under 

a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the 

prevailing belligerent.”).

83 Refer to § 11.2.2.1 (“Actually Placed” – Effectiveness of Occupation).

84 Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).
770

independent government of the previously occupied territory assumes control of the territory and 

consents to the presence of the previously occupying forces, then such a situation would no 

longer be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers 

the territory to the sovereignty of the Occupying Power, then the Occupying Power would no 

longer be characterized as such. However, an Occupying Power is not permitted, under the law 

of belligerent occupation, to annex occupied territory.85

11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the home 

territory of parties to the conflict, the application of the GC shall cease on the general close of 

military operations.

86

In the case of occupied territory, the application of the GC shall cease one year after the 

general close of military operations; however, the Occupying Power shall be bound, for the 

duration of the occupation, to the extent that such State exercises the functions of government in 

such territory, by the provisions of the following Articles of the GC:

• 1 through 12 (general provisions and common articles, e.g., the Protecting Power 

continues to function, and the derogation for security reasons continues to apply);

• 27, 29 through 34 (humane treatment);

• 47 (preserves rights as against change by annexation or arrangement with the local 

authorities so long as occupation lasts);

• 49 (transfers, evacuation, and deportation);

• 51, 52 (prohibitions against certain compulsory service and protection of workers);

• 53 (respect for property);

• 59, 61 through 63 (facilitating relief programs);

• 64 through 77 (criminal proceedings); and

• 143 (access by Protecting Powers and the ICRC).

87

The one-year time limit for the cessation of the application of the GC (apart from the 

provisions that continue to apply to the extent that the Occupying Power exercises the functions 

of government in occupied territory) was proposed to account for situations like those of 

 85 Refer to § 11.4.2 (Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty 

Over Occupied Territory).

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

87 GC art. 6 (“In the case of occupied territory, the application of the present Convention shall cease one year after 

the general close of military operations; however, the Occupying Power shall be bound, for the duration of the 

occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions

of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.”).
771

Germany and Japan after World War II.

88 AP I provides that the 1949 Geneva Conventions and 

AP I shall cease to apply, in the case of occupied territories, on the termination of the 

occupation;89 coalition partners that are Occupying Powers and Parties to AP I would be bound 

by this rule.

In any case, individuals entitled to GC protection who remain in the custody of the 

Occupying Power following the end of occupation retain that protection until their release, 

repatriation, or re-establishment.

90 In addition, it may be appropriate following the end of 

occupation to continue to apply by analogy certain rules from the law of belligerent occupation, 

even if such rules do not apply as a matter of law.

91

11.4 LEGAL POSITION OF THE OCCUPYING POWER

Military occupation of enemy territory involves a complicated, trilateral set of legal 

relations between the Occupying Power, the temporarily ousted sovereign authority, and the 

inhabitants of occupied territory.92 The fact of occupation gives the Occupying Power the right 

to govern enemy territory temporarily, but does not transfer sovereignty over occupied territory 

 88 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 623 (“Mr. CLATTENBURG (United 

States of America) said that his Delegation would propose an amendment to Article 4 to provide that the Civilians 

Convention should cease to apply not earlier than one year after the termination of hostilities. It would be noted that 

the Convention did not define the terms ‘occupied territory’ or ‘military occupation’. It was the view of the United 

States Delegation that the obligations imposed by the Convention on an Occupying Power should be applicable to 

the period of hostilities and to the period of disorganization following on the hostilities; these obligations would vary 

according to the nature and duration of the occupation. Experience had shown that an Occupying Power did, in fact, 

exercise the majority of the governmental functions in occupied territory. A prolonged military occupation was, 

however, also characterized by a progressive return of governmental responsibility to local authorities. The 

Occupying Power should be bound by the obligations of the Convention only during such time as the institutions of 

the occupied territory were unable to provide for the needs of the inhabitants. The ultimate solution of such 

problems as revictualling, sanitation and war damage was not the responsibility of the Occupying Power. He quoted 

the case of the Allied occupation of Germany and Japan to show that the responsibility of the Occupying Powers for 

the welfare of the local populations was far less at present than during the period immediately following 

hostilities.”).

89 AP I art. 3 (“Without prejudice to the provisions which are applicable at all times: (a) The Conventions and this 

Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol; (b) The application 

of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of 

military operations and, in the case of occupied territories, on the termination of the occupation, except, in either 

circumstance, for those persons whose final release, repatriation or reestablishment takes place thereafter. These 

persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final 

release, repatriation or re-establishment.”).

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

91 Refer to § 11.1.3.4 (Occupation and Post-War Situations).

92 JULIUS STONE, LEGAL CONTROLS ON INTERNATIONAL CONFLICT 694 (1954) (“Whether belligerent occupation has 

been established depends not merely on the will of the belligerent, but whether his actual control satisfies the 

standards of range and stability laid down by international law. If it does not, he is a mere invader enjoying a 

comparatively narrow legal authority. If it does, international law attributes to him legal powers which merely as a 

belligerent he does not have, touching almost all aspects of the government of the territory and the lives of its 

inhabitants. Since, moreover, the ousted sovereign still retains all the residue of legal authority not attributed to the 

Occupant, it is apparent that belligerent occupation involves at its core a complicated trilateral set of legal relations 

between the Occupant, the temporarily ousted sovereign and the inhabitants.”).
772

to the Occupying Power.

11.4.1 Right of the Occupying Power to Govern the Enemy Territory Temporarily. The 

right to govern the territory of the enemy during its military occupation is one of the incidents of 

war.93 By the fact of occupation (i.e., the Occupying Power’s established power over occupied 

territory), the Occupying Power is conferred the authority to exercise some of the rights of 

sovereignty.94 The exercise of these sovereign rights also results from the necessity of 

maintaining law and order, indispensable both to the inhabitants and to the occupying force, and 

the failure or inability of the legitimate government to exercise its functions, or the undesirability 

of allowing it to do so.95

11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack of 

Sovereignty Over Occupied Territory. Belligerent occupation in a foreign war, being based upon 

the possession of enemy territory, necessarily implies that the sovereignty of the occupied 

territory is not vested in the Occupying Power.

96 Occupation is essentially provisional.97

Because sovereignty is not vested in the Occupying Power, the fact of military 

occupation does not authorize the Occupying Power to take certain actions. For example, the 

Occupying Power is not authorized by the fact of belligerent occupation to annex occupied 

territory or to create a new State.98 In addition, the Occupying Power may not compel the 

 93 Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“The doctrine of international law on the effect of military 

occupation of enemy's territory upon its former laws is well established. Though the late war was not between 

independent nations, but between different portions of the same nation, yet having taken the proportions of a 

territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine 

must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the 

incidents of war, being a consequence of its acquisition; and the character and form of the government to be 

established depend entirely upon the laws of the conquering State or the orders of its military commander.”).

94 1956 FM 27-10 (Change No. 1 1976) ¶358 (“Being an incident of war, military occupation confers upon the 

invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to 

the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these 

rights results from the established power of the occupant and from the necessity of maintaining law and order, 

indispensable both to the inhabitants and to the occupying force.”).

95 1956 FM 27-10 (Change No. 1 1976) ¶362 (“Military government is the form of administration by which an 

occupying power exercises governmental authority over occupied territory. The necessity for such government 

arises from the failure or inability of the legitimate government to exercise its functions on account of the military 

occupation, or the undesirability of allowing it to do so.”).

96 1956 FM 27-10 (Change No. 1 1976) ¶353 (“Belligerent occupation in a foreign war, being based upon the 

possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the 

occupying power. Occupation is essentially provisional.”).

97 See, e.g., VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 31 (“The consensus of the opinions of writers on 

international law is that the legitimate government of the territory retains its sovereignty but that the latter is 

suspended during the period of belligerent occupation.”); EYAL BENVENISTI, THE INTERNATIONAL LAW OF 

OCCUPATION 6 (2004) (“The power exercising effective control within another’s sovereign territory has only 

temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, the 

occupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of a 

trustee.”).

98 1956 FM 27-10 (Change No. 1 1976) ¶358 (“It is therefore unlawful for a belligerent occupant to annex occupied 

territory or to create a new State therein while hostilities are still in progress.”). Refer to § 11.6.3 (Occupying 

Power’s Duty to Respect the Rights of Protected Persons Secured by the GC).
773

inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it.99

Similarly, in view of the provisional nature of belligerent occupation, the authority of the 

Occupying Power under occupation law has been interpreted as being subject to limitations on 

the ability of the Occupying Power to alter institutions of government permanently or change the 

constitution of a country.100

11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY

The authority of the legitimate power having in fact passed into the hands of the 

Occupying Power, the latter shall take all the measures in its power to restore, and ensure, as far 

as possible, public order and safety, while respecting, unless absolutely prevented, the laws in 

force in the country.

101 This principle has been recognized as customary international law.102

The Occupying Power has a general duty to maintain public order and to provide for the 

 99 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the 

Hostile State).

100 John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council Resolutions and the 

Application of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005, 2005 DIGEST OF 

UNITED STATES PRACTICE IN INTERNATIONAL LAW 958-59 (“Some commentators take the position that occupation 

law establishes limitations on the ability of the occupying power to alter institutions of government permanently or 

change the constitution of a country.”). See also 2004 UK MANUAL ¶11.25.1 (“Since the occupying power has a 

duty to look after the welfare of the inhabitants, regulations, for example, fixing prices and securing the equitable 

distribution of food and other commodities, are permissible. The occupying power should make no more changes to 

the law than are absolutely necessary, particularly where the occupied territory already has an adequate legal 

system.”); 2001 CANADIAN MANUAL ¶1205(1) (“During occupation by the enemy, the sovereignty of the legitimate 

government continues to exist but it is temporarily latent. The powers of the occupant are of a provisional nature 

and it should only take measures, which are necessary for the purposes of the armed conflict, the maintenance of 

order and safety and the proper administration of the occupied territory. Generally speaking, the occupant is not 

entitled to alter the existing form of government, to upset the constitution and domestic laws of the occupied 

territory, or to set aside the rights of the inhabitants.”); JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL 

CONFLICT 698 (1954) (“The limits on the legislative and regulatory power are as vague as the authority is general. 

The Occupant’s authority is ‘military authority’. Clearly this is not full sovereignty, but equally clearly it extends 

under the regulations to civil matters. His authority, of course, is limited like all his other powers to the occupied 

territory, under Article 42, paragraph 2; and by Article 43 the Occupant must respect the laws in force unless 

‘absolutely prevented’. But this last limitation has never been taken literally; and unless it is so taken, the 

boundaries of the Occupant’s legislative power are still to be drawn. The most widely approved line of distinction is 

that the Occupant, in view of his merely provisional position, cannot make permanent changes in regard to 

fundamental institutions, for instance, change a republic into a monarchy. It becomes, however, increasingly 

difficult to say with confidence what is a fundamental institution.”).

101 HAGUE IV REG. art. 43 (“The authority of the legitimate power having in fact passed into the hands of 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.”).

102 Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily, Sept. 23, 1943, 

reprinted in Occupation Currency Transactions: Hearings Before the Committees on Appropriations Armed 

Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 75 (Jun. 17-18, 1947) (“The 

Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect 

during the occupation, subject to change by the military authorities within the limitations of the Convention. Article 

43 provides: ... This declaration of the Hague Convention amounts only to a reaffirmation of the recognized 

international law prior to that time.”).
774

preservation of rights of the inhabitants, including rights to their private property.103

11.5.1 Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and 

Safety. The Occupying Power’s duty to take all the measures in its power to restore and ensure, 

as far as possible, public order and safety also provides it authority take such actions. For 

example, the Occupying Power may enact provisions to maintain the orderly government of the 

territory.104

11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country. 

The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the 

Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change the 

municipal law applicable to occupied territory.

105

The duty to respect, unless absolutely prevented, the laws in force in the country has been 

interpreted not to apply to local administrative laws, such as regulations, executive orders, 

ordinances, and decrees.106 

11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY

Under the law of belligerent occupation, the Occupying Power has certain duties with 

respect to the population of an occupied territory, including protected persons under the GC. 

11.6.1 General Protections, Including Humane Treatment, of the Population of an 

 103 Aboitiz & Co. v. Price, 99 F. Supp. 602, 610 (D. Utah 1951) (“[I]international law has recognized the right of the 

protection of [the Occupying Power’s] military interests and the exercise of police powers. However, such law also 

imposes upon the occupant the duty to maintain public order and to provide for the preservation of the rights of the 

inhabitants. The emphasis is upon public order and safety, and the welfare of the inhabitants.”). See also Ochoa v. 

Hernandez y Morales, 230 U.S. 139, 159 (1913) (“The protocol of August 12, 1898 (30 Stat. 1742), the purport of 

which has already been given, left our Government, by its military forces, in the occupation and control of Porto 

Rico as a colony of Spain, and bound by the principles of international law to do whatever was necessary to secure 

public safety, social order, and the guaranties of private property.”).

104 Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law 

Applicable to Occupied Territory).

105 See GC COMMENTARY 335-36 (“Article 64 expresses, in a more precise and detailed form, the terms of Article 43 

of the Hague Regulations, which lays down that the Occupying Power is to respect the laws in force in the country 

‘unless absolutely prevented’. ... The principle that the penal laws in force in the occupied territory must be 

maintained is subject to two reservations. The first relates to the security of the Occupying Power, which must 

obviously be permitted to cancel provisions such as those concerning recruiting or urging the population to resist the 

enemy. The second reservation is in the interests of the population and makes it possible to abrogate any 

discriminatory measures incompatible with humane requirements. ... These two exceptions are of a strictly 

limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason—and 

not, in particular, merely to make it accord with their own legal conceptions.”).

106 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 99 (“In sharp contrast to the ‘restricted’ view concerning 

civil laws, the occupant is generally conceded very extensive powers to change, alter, or suspend the ordinances and 

decrees (as distinct from laws) of the legitimate sovereign of an occupied territory. It is held that administrative 

regulations and executive orders are quite sharply distinct from the constitutional and statute law of a country and 

that they do not constitute as important or vital a part of the latter’s legal structure. Hence the occupant is held to 

have the power to interfere and to enact such regulations and ordinances as are deemed fitting and proper in his 

interests and in the interests of his armed forces.”).
775

Occupied Territory. The population of an occupied territory, like other protected persons under 

the GC, are entitled, in all circumstances, to respect for their persons, their honor, their family 

rights, their religious convictions and practices, and their manners and customs.107 They shall at 

all times be humanely treated, and shall be protected especially against all acts of violence or 

threats of violence, and against insults and public curiosity.

Other provisions for the humane treatment of protected persons set forth in Articles 27 

through 34 of the GC apply to the population of an occupied territory. For example, women 

must be especially protected against any attack on their honor, in particular against rape, 

enforced prostitution, or any form of indecent assault.108 Reprisals against protected persons and 

their property are prohibited.109 The taking of hostages is prohibited.110

In addition, protected persons in occupied territory shall have every facility for making 

application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion 

and Sun) Society of the country where they may be, as well as to any organization that might 

assist them.

111

11.6.2 Overview of Additional Protections for the Population That Are Specific to 

Occupation. There are a number of protections for the population of occupied territory that are 

specific to occupation. For example, specific provision exists for the protection of children in 

occupied territory.112 Specific constraints exist on the authority of the Occupying Power to 

punish protected persons, direct their movement, or compel them to perform labor.

113 Provision 

also is made with respect to: (1) food and medical supplies of the population; (2) public health 

and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments.

114

The following prohibitions also apply with respect to the inhabitants of occupied 

territory:

11.6.2.1 Prohibition on Compelling Inhabitants of Occupied Territory to Swear 

Allegiance to the Hostile State. It is forbidden to compel the inhabitants of occupied territory to 

 107 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons). See also HAGUE IV REG.

art. 46 (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and 

practice, must be respected.”).

108 Refer to § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).

109 Refer to § 10.5.4 (Reprisals Against Protected Persons and Their Property).

110 Refer to § 10.5.1.4 (Taking of Hostages).

111 Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as the 

ICRC).

112 Refer to § 11.13 (Protection of Children in Occupied Territory).

113 Refer to § 11.11 (Criminal Law in Occupied Territory); 11.12 (Movement of Persons in Occupied Territory); 

11.20.1 (Types of Labor That May Not Be Compelled).

114 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene); 

§ 11.16 (Spiritual Assistance); § 11.17 (Relief Efforts and Consignments).
776

swear allegiance to the hostile State.115

11.6.2.2 Prohibition Against General Penalties in Occupied Territory. No 

general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the 

acts of individuals for which they cannot be regarded as jointly and severally responsible.116 

Such penalties are prohibited, even if authorized under the law of the occupied territory.

Collective penalties are prohibited as a general matter.117

11.6.3 Occupying Power’s Duty to Respect the Rights of Protected Persons Secured by 

the GC. The Occupying Power has certain obligations to respect the rights of protected persons 

secured by the GC.

Protected persons who are in occupied territory shall not be deprived, in any case or in 

any manner whatsoever, of the benefits of the GC by any change introduced, as the result of the 

occupation of a territory, into the institutions or government of the occupied territory, nor by any 

agreement concluded between the authorities of the occupied territories and the Occupying 

Power, nor by any annexation by the latter of the whole or part of the occupied territory.118 For 

example, an Occupying Power may not purport to annex occupied territory in order to avoid its 

responsibilities as an Occupying Power.

119

The Occupying Power may not enter into any special agreements that would adversely 

affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC 

confers upon them.120 

 115 HAGUE IV REG. art. 45 (“It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the 

hostile Power.”); 1899 HAGUE II REG. art. 45 (“Any pressure on the population of occupied territory to take the oath 

to the hostile Power is prohibited.”).

116 HAGUE IV REG. art. 50 (“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on 

account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”).

117 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

118 GC art. 47 (“Protected persons who are in occupied territory shall not be deprived, in any case or in any manner 

whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a 

territory, into the institutions or government of the said territory, nor by any agreement concluded between the 

authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or 

part of the occupied territory.”).

119 See Trial of Robert Wagner, Gauleiter and Head of the Civil Government of Alsace during the Occupation, and 

Six Others, III U.N. LAW REPORTS 23, 45 (Permanent Military Tribunal at Strasbourg, Apr. 23-May 3, 1946, and 

Court of Appeal, Jul. 24, 1946) (“Wagner put forward a plea based upon an alleged violation by false application of 

the Ordinance of 28th August, 1944, claiming that the acts alleged were committed in Alsace, which was annexed 

by Germany, and on territory over which French sovereignty had ceased to operate. The purported declaration of 

annexation of Alsace by Germany on which reliance was placed in the plea was deemed by the Court of Appeal to 

be nothing more than a unilateral act which could not legally modify the clauses of the treaty signed at Versailles on 

28th June, 1919, by the representatives of Germany. Therefore the acts alleged to have been committed by Wagner 

were committed in Alsace, French territory, and constituted war crimes in the sense of Art. 1 of the Ordinance of 

28th August, 1944.”).

120 Refer to § 10.1.1.2 (Special Agreements Under the GC).
777

The Occupying Power may also not evade its responsibilities through the purported 

renunciation by protected persons of the rights secured to them by the GC and by any special 

agreements referred to in Article 7 of the GC.121

In certain cases, a protected person’s rights of communication under the GC may be 

forfeited for security reasons.

122

11.6.4 Citizens of Neutral States in Occupied Territory. Citizens of neutral States 

residing within an occupied territory are generally treated the same as other residents of occupied 

territory.123

11.7 AUTHORITY OF THE OCCUPYING POWER OVER INHABITANTS

The Occupying Power’s authority over inhabitants of occupied territory derives from its 

war powers and from its duty to ensure public order and safety in occupied territory. The 

Occupying Power, as a belligerent State, may take such measures of control and security in 

regard to protected persons as may be necessary as a result of the war.124 In addition, the 

Occupying Power may take measures necessary to fulfill its duty to ensure public order and 

safety.

125

11.7.1 Inhabitants’ Obedience to the Occupying Power. It is the duty of the inhabitants 

to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to take 

no part whatever in the hostilities carried on, to refrain from all injurious acts toward the forces

or in respect to their operations, and to render strict obedience to the orders of the occupant.126

Subject to the restrictions imposed by international law, the Occupying Power may 

demand and enforce from the inhabitants of occupied territory such obedience as may be 

necessary for the security of its forces, for the maintenance of law and order, and for the proper 

administration of the country.127

The inhabitant’s obedience to the Occupying Power is generally distinguished from a 

duty of allegiance.128 The inhabitant’s duty of allegiance to his or her State of nationality is not 

 121 Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC).

122 Refer to § 10.4.2 (Derogation in Occupied Territory).

123 Refer to § 15.6.4 (Neutral Persons Resident in Occupied Territory).

124 Refer to § 10.6 (Measures of Control and Security).

125 Refer to § 11.5.1 (Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and Safety).

126 1956 FM 27-10 (Change No. 1 1976) ¶432 (“It is the duty of the inhabitants to carry on their ordinary peaceful 

pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain 

from all injurious acts toward the troops or in respect to their operations, and to render strict obedience to the orders 

of the occupant.”).

127 1956 FM 27-10 (Change No. 1 1976) ¶432 (“Subject to the restrictions imposed by international law, the 

occupant can demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for 

the security of its forces, for the maintenance of law and order, and for the proper administration of the country.”).

128 Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The 

Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 37 (1907) (“But the control 
778

severed.

129 The inhabitants, however, are not bound to obey their State of nationality.130

11.7.1.1 Enforcement of Obedience. The Occupying Power’s enforcement of 

obedience must comply with the law of war. For example, measures prohibited by the law of 

war, such as collective punishments, acts of torture, or reprisals, may not be used.

11.7.2 Censorship and Other Regulation of the Media. Under the law of belligerent 

occupation,131 for the purposes of security, an Occupying Power may establish censorship or 

regulation of any or all forms of media (e.g., press, radio, television) and entertainment (e.g., 

theater, movies), of correspondence, and of other means of communication.132 For example, an 

Occupying Power may prohibit entirely the publication of newspapers that pose a threat to 

security, or it may prescribe regulations for the publication or circulation of newspapers of other 

media for the purpose of fulfilling its obligations to restore public order.133

The Occupying Power is not required to furnish facilities for postal service, but may take 

charge of them itself, especially if the officials of the occupied district fail to act or to obey its 

 

which the commanding general exercises over the inhabitants of occupied territory is not based upon any theory of 

allegiance, their relation to him being out of constrained obedience to his commands. As the allegiance of the 

population has not been changed, the occupying commander can not compel the individuals composing it to commit 

acts of treason; that is, to take part in acts of hostility against their own government.”).

129 GC COMMENTARY 346 (“The words ‘duty of allegiance’ [in Article 68 of the GC] constitute an acknowledgment 

of the fundamental principle according to which the occupation does not sever the bond existing between the 

inhabitants and the conquered State. Protected persons must nevertheless obey legitimate orders issued by the 

Occupying Power.”); GC COMMENTARY 305 (“It may be mentioned in this connection that public officials and 

judges act under the superintendence and control of the occupant to whom legal power has passed in actual practice 

and to whom they, like any other protected person, owe obedience. But this duty of obedience does not cancel out 

the duty of allegiance which subsists during the period of occupation.”).

130 United States v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine, 

the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that 

place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United 

States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and 

submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British 

government, and were bound by such laws, and such only, as it chose to recognise and impose. From the nature of 

the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty, 

there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, 

to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the 

British government chose to require. Such goods were in no correct sense imported into the United States.”).

131 The discussion in this sub-section focuses solely on what is permitted under the law of war and does not address 

possible implications of censorship under the First Amendment of the Constitution.

132 1956 FM 27-10 (Change No. 1 1976) ¶377 (“The belligerent occupant may establish censorship of the press, 

radio, theater, motion pictures, and television, of correspondence, and of all other means of communication. It may 

prohibit entirely the publication of newspapers or prescribe regulations for their publication and circulation.”).

133 For example, Coalition Provisional Authority Public Notice, Towards a Responsible Iraqi Media, Jun. 10, 2003 

(“Disseminating material that incites violence, however poses a direct threat to personal freedoms, and is therefore 

banned under the terms of this order, as it is in any civilized society. Equally, advocating the return to power of the 

repressive and criminal Ba’athist regime would undermine civil order and the freedom from fear of political 

repression, both of which are necessary for the development of a free and democratic Iraq. Thus the CPA is issuing 

an Order that prohibits Iraqi media organizations from broadcasting or publishing material that would seriously 

undermine security and civil order in Iraq.”).
779

orders.134

11.7.3 Control of Means of Transportation. An Occupying Power is entitled to exercise 

authority over all means of public and private transportation, whether land, waterborne, or air, 

within the occupied territory, and may seize them and regulate their operation.135 

11.7.4 Limits on Safety Measures. If the Occupying Power considers it necessary, for 

imperative reasons of security, to take safety measures concerning protected persons, it may, at 

the most, subject them to assigned residence or to internment.

136 The Occupying Power must 

comply with certain procedural requirements (e.g., appeal, periodic review) when conducting 

assigned residence or internment of protected persons in occupied territory based on imperative 

reasons of security.137 The Occupying Power also has an obligation to support persons who are 

assigned residence and thus are required to leave their homes, consistent with the standards for 

the treatment of internees.138

11.8 ADMINISTRATION OF OCCUPIED TERRITORY

11.8.1 Paramount Authority of the Occupying Power Over Government Functions in 

Occupied Territory. The functions of the hostile government—whether of a general, provincial, 

or local character—continue only to the extent they are sanctioned by the Occupying Power.

139

11.8.2 Continued Performance of Duties by Civil Servants and Other Officials of Local 

Governments. The Occupying Power may, while retaining its paramount authority, permit the 

government of the country to perform some or all of its normal functions.140 It may, for 

example, call upon the local authorities to administer designated rear areas, subject to the 

 134 1956 FM 27-10 (Change No. 1 1976) ¶377 (“The occupant is not required to furnish facilities for postal service, 

but may take charge of them itself, especially if the officials of the occupied district fail to act or to obey its 

orders.”).

135 1956 FM 27-10 (Change No. 1 1976) ¶378 (“The belligerent occupant exercises authority over all means of 

transportation, both public and private, within the occupied district, and may seize them and regulate their 

operation.”).

136 Refer to § 10.6.3 (No Measures of Control More Severe Than Assigned Residence or Internment).

137 Refer to § 10.9.3 (Procedure for Internment or Assigned Residence in Occupied Territory).

138 Refer to § 10.6.4 (Support to Persons Who Are Assigned Residence Should Be Guided by Internment Standards).

139 1956 FM 27-10 (Change No. 1 1976) ¶367a (“The functions of the hostile government—whether of a general, 

provincial, or local character—continue only to the extent they are sanctioned by the occupant.”). For example, 

Coalition Provisional Authority Regulation No. 1, §2 (May 16, 2003) (“Unless suspended or replaced by the CPA 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.”).

140 1956 FM 27-10 (Change No. 1 1976) ¶367b (“The occupant may, while retaining its paramount authority, permit 

the government of the country to perform some or all of its normal functions. It may, for example, call upon the 

local authorities to administer designated rear areas, subject to the guidance and direction of the occupying power. 

Such action is consistent with the status of occupation, so long as there exists the firm possession and the purpose to 

maintain paramount authority.”).
780

guidance and direction of the Occupying Power.

141 Such action is consistent with the status of 

occupation, so long as there exists the firm possession of territory and the purpose to maintain 

paramount authority.142 Similarly, for example, courts are generally to continue the ordinary 

administration of justice during occupation.143

The compulsion of civil servants and other officials of local governments to continue to 

perform their duties must be justified by military necessity and consistent with applicable 

provisions of the GC.

144

11.8.3 Local Governments Under Duress or Surrogate Governments. The restrictions 

placed upon the authority of a belligerent State cannot be avoided by a system of using a puppet 

government, central or local, to carry out acts that would be unlawful if performed directly by the 

Occupying Power. Acts induced or compelled by the Occupying Power are nonetheless its 

acts.145

11.8.4 Responsibility of the Occupying Power for Treatment Accorded to Protected 

Persons by Its Agents. An Occupying Power, like belligerent States, is responsible for the 

treatment accorded to protected persons by its agents, irrespective of any individual 

responsibility that may be incurred.146 The responsibility of the Occupying Power for its agents 

includes those agents that are not its nationals, such as locally recruited agents of the nationality 

of the State whose territory is occupied.147

11.8.5 Immunity of Occupation Personnel From Local Law. Military and civilian 

personnel of the occupying forces and occupation administration and persons accompanying 

them are not subject to the local law or to the jurisdiction of the local civil or criminal courts of 

the occupied territory, unless expressly made subject thereto by a competent officer of the 

 141 For example, Reports of General MacArthur, in I Supplement MacArthur in Japan: The Occupation: Military 

Phase 25-26 (1966) (“While the air lift of the main initial force was in progress on 30 August, GHQ, AFPAC, issued 

an amendment to Operations Instructions No. 4, which materially altered the missions assigned to the Army 

commanders who soon would be arriving on the Nippon homeland. Instead of actually instituting ‘military 

government,’ Army commanders were to supervise the execution of the policies relative to government functions 

which GHQ, AFPAC, was to issue directly to the Japanese Government;”).

142 Refer to § 11.2.2.2 (“Under the Authority” – Suspension and Substitution of Governmental Authority).

143 Refer to § 11.10 (Ordinary Courts in Occupied Territory).

144 Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).

145 1956 FM 27-10 (Change No. 1 1976) ¶366 (“The restrictions placed upon the authority of a belligerent 

government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which 

would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are 

nonetheless its acts.”).

146 Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons); § 18.9.1 (State 

Responsibility for Violations of the Law of War by Its Armed Forces).

147 GC COMMENTARY 212 (“The nationality of the agents does not affect the issue. That is of particular importance 

in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally 

recruited agents of the nationality of the occupied country.”).
781

Occupying Power.

148 

It is important for the Occupying Power to ensure that an appropriate system of 

substantive law applies to such persons and that tribunals are in existence to deal with civil 

litigation to which they are parties and with offenses committed by them.149 In the past, provost 

courts have been used for these purposes.150 In recent practice, the Uniform Code of Military 

Justice and the Military Extraterritorial Jurisdiction Act, among others, have been used to 

address offenses committed by military and civilian personnel in the context of occupation.151

11.8.6 Civilian or Military Nature of the Occupation Government. It is immaterial 

whether the government over an enemy’s territory consists in a military or civil or mixed 

administration. Its character is the same and the source of its authority the same. It is a 

government imposed by force, and the legality of its acts is determined by the law of war.152

For example, the governing authority established by the Occupying Power may be 

composed of civilian personnel.153

 148 1956 FM 27-10 (Change No. 1 1976) ¶374 (“Military and civilian personnel of the occupying forces and 

occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of 

the local courts of the occupied territory unless expressly made subject thereto by a competent officer of the 

occupying forces or occupation administration.”). For example, Coleman v. Tennessee, 97 U.S. 509, 518-19 (1878) 

(“The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in force 

during its military occupation, did not apply to the defendant, as he was at the time a soldier in the army of the 

United States and subject to the Articles of War. He was responsible for his conduct to the laws of his own 

government only as enforced by the commander of its army in that state, without whose consent he could not even 

go beyond its lines. Had he been caught by the forces of the enemy after committing the offense, he might have 

been subjected to a summary trial and punishment by order of their commander, and there would have been no just 

ground of complaint, for the marauder and the assassin are not protected by any usages of civilized warfare. But the 

courts of the state, whose regular government was superseded and whose laws were tolerated from motives of 

convenience, were without jurisdiction to deal with him.”).

149 1956 FM 27-10 (Change No. 1 1976) ¶374 (“The occupant should see to it that an appropriate system of 

substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they 

are parties and with offenses committed by them.”).

150 Refer to § 11.11.3.1 (U.S. Practice for Properly Constituted, Non-Political Military Courts).

151 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses); § 18.19.3.5 (Extraterritorial Application of 

Certain Federal Offenses Through MEJA).

152 1956 FM 27-10 (Change No. 1 1976) ¶368 (“It is immaterial whether the government over an enemy’s territory 

consists in a military or civil or mixed administration. Its character is the same and the source of its authority the 

same. It is a government imposed by force, and the legality of its acts is determined by the law of war.”).

153 For example, E. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY 1944-1946 404 (1975) (“From the 

beginning the US Group Control Council had been considered more a vehicle for future civilian authority than an 

element of Army-administered military government. In April 1945, in his first outline for military government 

organization, Clay proposed also to bring civilians into the theater G-5 so that both it and the US Group Control 

Council could be ‘carved out of’ the military command when the shift to civilian responsibility occurred. A month 

later, in the organizational directive for military government, Clay stated, ‘This organization must become civilian in 

character as rapidly as consistent with efficient performance so that it may become at the earliest possible date a 

framework for the administration of political control in Germany by the appropriate US civil agencies.’”).
782

11.9 LOCAL LAW AND LEGISLATION

11.9.1 General Continuation of Municipal Law of the Occupied Territory as Between 

Inhabitants. In general, the municipal law of the occupied territory (i.e., the ordinary domestic 

civil and criminal law) and their administration remain in full force so far as the inhabitants of 

occupied territory are concerned, unless changed by the Occupying Power.

154 For example, the 

penal laws of the occupied territory generally continue in force.155 

As a foreign State and as the paramount authority in the occupied territory, the 

Occupying Power is not bound by the municipal law of the occupied territory.

156 For example, 

the Occupying Power would not be bound by a municipal law that had been enacted by the State 

of the occupied territory to prevent trading with the enemy.157 Similarly, the Occupying Power’s

personnel are immune from the application of local law.158

11.9.2 Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal 

Law Applicable to Occupied Territory. The duty of the Occupying Power to respect, unless 

absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its 

authority to suspend, repeal, or change the municipal law applicable to occupied territory.

159 As 

with other authorities under the law of war, the Occupying Power must use its power with 

respect to the municipal law of occupied territory in good faith and not for the purpose of 

oppressing the population.160

 154 Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“By such occupation the political relations between the people 

of the hostile country and their former government or sovereign are for the time severed; but the municipal laws --

that is, the laws which regulate private rights, enforce contracts, punish crime, and regulate the transfer of property -

- remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or 

superseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thus 

changed. In other words, the municipal laws of the State, and their administration, remain in full force so far as the 

inhabitants of the country are concerned, unless changed by the occupying belligerent.”). See also Ho Tung & Co. 

v. United States, 42 Ct. Cl. 213, 227 (Ct. Cl. 1907) (“It is unquestioned that upon the occupation by our military 

forces of the port of Manila it was their duty to respect and assist in enforcing the municipal laws then in force there 

until the same might be changed by order of the military commander, called for by the necessities of war.”).

155 Refer to § 11.11.1 (General Continuation of Penal Laws of the Occupied Territory).

156 Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied 

Territory).

157 For example, N.V. De Bataafsche Petroleum Maatschappli & Ors. v. The War Damage Commission (Court of 

Appeal, Singapore, April 13, 1956), reprinted in 51 AJIL 802, 807 (1957) (‘The provisions of the [Netherlands 

Indies] Wartime Legal Relations Ordinance were, no doubt, very appropriate when applied to ‘persons,’ as defined 

in section 1 of the Ordinance, but to contend that they apply to a belligerent occupant, that is to say, to an 

International Person, who is thereby placed under a statutory obligation to seek the permission of the Director of 

Economic Affairs before doing any act which might benefit the enemy (which is, of course, himself) is, to my mind, 

an untenable proposition.”).

158 Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).

159 Refer to § 11.5.2 (Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country).

160 GC COMMENTARY 337 (“It will be seen that the powers which the Occupying Power is recognized to have are 

very extensive and complex, but these varied measures must not under any circumstances serve as a means of 

oppressing the population. The legislative and penal jurisdiction exercised by the occupation authorities, as holder 

of public power, is therefore hedged about with numerous safeguards set forth in the following Articles.”).
783

The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to 

maintain the orderly government of the territory; and (3) to ensure the security of the Occupying 

Power, of the members and property of the occupying forces or administration, and likewise of 

the establishments and lines of communication used by them.161

Broader authority for the Occupying Power to change the laws of the occupied territory 

may be provided by the U.N. Security Council.162

After the Occupying Power’s occupation has ended, its changes to the municipal law of 

the occupied territory may be changed, subject to the requirements of applicable international 

law.

11.9.2.1 Distinction Between Suspension, Repeal, Change, or Enactment of 

Municipal Laws. The distinction between the suspension, repeal, change, or enactment of a new 

law may be of little practical consequence. 

Implicit in the authority to enact new laws is the authority to suspend or repeal existing 

laws. Thus, the repeal or suspension of a law may be accomplished by the Occupying Power

subjecting the population of the occupied territory to additional provisions of law that are 

inconsistent with the earlier law. For example, a law permitting discrimination may be 

effectively suspended by the Occupying Power requiring officials to apply the law impartially.163 

The power to suspend or repeal laws may also include the power to amend laws. For 

example, the partial suspension of a tax imposed on the population may also be viewed as a 

change in the tax rate.164

However, new penal provisions may not come into force before they have been 

published.165

11.9.2.2 Examples of Laws That May Be Suspended, Repealed, Changed, or 

Enacted by the Occupying Power. Examples of provisions that may, depending on the 

circumstances, be suspended, repealed, changed, or enacted by the Occupying Power include

legal provisions:

 161 GC art. 64 (“The Occupying Power may, however, subject the population of the occupied territory to provisions 

which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain 

the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and 

property of the occupying forces or administration, and likewise of the establishments and lines of communication 

used by them.”).

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

163 For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising their 

official functions, all persons undertaking public duties or holding public office, including all police, prosecutors, 

and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color, 

language, religion, political opinion, national, ethnic or social origin, or birth.”).

164 Refer to § 11.22.1.2 (Changes in Taxes or New Taxes).

165 Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
784

• relating to serious offenses that pose a threat to public order, such as kidnapping, rape, 

and forcible vehicle larceny;166

• relating to the sale or possession of weapons by members of the civilian population;167

• relating to measures for the protection of the Occupying Power’s forces or administration 

(e.g., laws relating to the recruitment of persons into the occupied State’s armed forces or 

insurgent groups, relating to curfews or restricted areas);

168

• relating to political process, such as laws regarding the rights of suffrage and of 

assembly;

169

• relating to the supply of food and other items essential to the survival of the civilian 

population, and the prevention of illicit trade in, or hoarding of, such items;

170

 166 For example, Coalition Provisional Authority Order No. 31, Modifications of Penal Code and Criminal 

Proceedings Law, preamble, §§2-3, 5 (Sept. 10, 2003) (modifying sentences for certain offenses in the Iraqi Penal 

Code based on the recognition that “instances of kidnapping, rape, and forcible vehicle larceny represent a serious 

threat to the security and stability of the Iraqi population”).

167 For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920: 

REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 107 

(1943) (“‘The carrying of arms or deadly weapons is forbidden except by the local police. Every person in 

possession of arms and ammunition of any kind must deliver them to the American authorities at such time or place 

as may be appointed. A receipt for each weapon will be given at the time of delivery and the weapon tagged with 

the name of the owner.’ Precedents for forbidding the civil population to carry arms and ammunition during a 

military occupation are so numerous that the publication of such regulations by the American army in this instance 

cannot be considered a severe restriction. During the march to the Rhine, the Commanding General of the Third 

Army had recognized the necessity of a regulation of this nature, and in Memorandum No. 4 had instructed unit 

commanders to forbid civilians to carry deadly weapons.”).

168 GC COMMENTARY 337 (“(c) It is, lastly, authorized to promulgate penal provisions for its own protection. This 

power has long been recognized by international law. The provision is sufficiently comprehensive to cover all 

civilian and military organizations which an Occupying Power normally maintains in occupied territory. The 

Convention mentions ‘the Occupying Power’ itself besides referring to the members and property of the occupying 

forces or administration, so that general activities such as activities on behalf of enemy armed forces are covered. 

The Occupying Power is entitled to use establishments and lines of communication for its own needs; it is therefore 

entitled to take appropriate measures to ensure their security.”).

169 1956 FM 27-10 (Change No. 1 1976) ¶371 (“The occupant may alter, repeal, or suspend laws of the following 

types: a. Legislation constituting a threat to its security, such as laws relating to recruitment and the bearing of 

arms. b. Legislation dealing with political process, such as laws regarding the rights of suffrage and of assembly. c. 

Legislation the enforcement of which would be inconsistent with the duties of the occupant, such as laws 

establishing racial discrimination.”).

170 For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920: 

REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 164-65 

(1943) (“Sale of American foodstuffs was by the ticket system. ... The method of using the food tickets, was, in 

brief, as follows. Each person or head of family was issued the number of coupons to which he was entitled, each 

coupon authorizing him to buy a certain quantity of a certain food, within a certain period of time. There were also 

coupons, not bearing the name of any particular food, but numbered, to be used for foods not regularly issued. The 

coupons entitled the holder to register with some merchant of his own choice, who in turn registered his total 

requirements with the local Food Office. When the food arrived, each merchant was allotted the amount necessary 

to provide for the persons registered with him. Announcements of distribution were made in the daily papers. The 
785

• relating to the administration of the law, such as repealing laws establishing racial 

discrimination or promulgating laws requiring the impartial application of the law by 

local officials;

171 and

• relating to the Occupying Power’s obligations under the GC, such as legislation to help 

provide for child welfare, labor, food, hygiene, and public health of the occupied 

territory.

172

11.9.3 Procedural Obligation – Notification to the Population of Changes in Law. The 

Occupying Power is not required to adhere to the local procedure for amending municipal law. 

However, the population of the occupied territory must be informed of the alteration, suspension, 

or repeal of existing laws, and of the enactment of new laws. In particular, penal provisions must 

be published before entering into force.173

In practice, to ensure that all inhabitants are on notice of what is expected, the Occupying 

Power is to publish a decree or order at, or immediately after, the beginning of the occupation, in 

order to clarify the applicable laws and orders, and the punishments that can be imposed if the 

inhabitants fail to comply. Such notification may be provided as part of a proclamation of 

occupation.174

11.10 ORDINARY COURTS IN OCCUPIED TERRITORY

In general, the courts and other tribunals of the occupied territory, like other 

governmental functions, should continue to operate.

175 For example, ordinary crimes that do not 

affect the security of the Occupying Power or its personnel should continue to be administered 

by the courts in the occupied territory.

176

 

merchant kept the coupons to indicate the amounts and regularity of his sales. Any allotment not entirely sold, 

might be returned to the food authorities or debited against the next allotment. The system seemed simple enough, 

but there was considerable traffic in tickets. Well-to-do people seldom suffered for lack of food, though they may 

often not have been able to get the variety they wanted.”).

171 For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising their 

official functions, all persons undertaking public duties or holding public office, including all police, prosecutors, 

and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color, 

language, religion, political opinion, national, ethnic or social origin, or birth.”).

172 GC COMMENTARY 337 (“The legislative power of the occupant as the Power responsible for applying the 

Convention and the temporary holder of authority is limited to the matters set out in a limitative list below. (a) It 

may promulgate provisions required for the application of the Convention in accordance with the obligations 

imposed on it by the latter in a number of spheres: child welfare, labour, food, hygiene and public health etc.”).

173 Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).

174 Refer to § 11.2.4 (Proclamation of Occupation).

175 LIEBER CODE art. 6 (“All civil and penal law shall continue to take its usual course in the enemy’s places and 

territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the 

functions of the hostile government – legislative, executive, or administrative – whether of a general, provincial, or 

local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the 

participation of the occupier or invader.”).

176 Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).
786

However, the administration of justice in the occupied territory, like the performance of 

other governmental functions, is subject to the direction of the Occupying Power.

177

11.10.1 Authority to Suspend Ordinary Courts. The ordinary courts in occupied territory 

should be suspended only if: (1) judges and magistrates are unable or unwilling to perform their 

duties; (2) the courts are corrupt or unfairly constituted; or (3) the local judicial administration 

has collapsed due to the hostilities preceding the occupation.178

In such cases, the Occupying Power may use its own properly constituted, non-political 

military courts to ensure that offenses against the local laws are properly tried.

179 The 

Occupying Power may also reform local courts, including by establishing new criminal courts 

under the law of the occupied State.180

11.10.1.1 Judicial Inability or Unwillingness to Perform Their Duties. Judges 

and magistrates may abstain from fulfilling their functions for reasons of conscience.181 An 

inability to perform their normal duties may result from a failure of public services, such as 

public transportation, or threats by insurgents.

11.10.1.2 Corruption and Unfairness in the Judicial System. Corruption and 

unfairness in the judicial system may constitute a serious obstacle to public order and safety, and 

an obstacle to the Occupying Power’s application of the fundamental fair trial protections 

guaranteed by the GC.182 The Occupying Power may take appropriate measures to remedy such 

corruption or unfairness. For example, committees may be established to review the suitability 

of judges and prosecutors.

183 Similarly, a facility may be established to help resolve conflicting 

property claims on a voluntary basis.

184

 177 For example, Coalition Provisional Authority Order No. 7, Penal Code, §1 (Jun. 10, 2003) (“All judges, police 

and prosecutors shall perform their duties in accordance with CPA Regulation No. 1 (CPA/REG/23 May 2003/01) 

and in accordance with any other Regulations, Orders, Memoranda or instructions issued by the CPA.”).

178 1956 FM 27-10 (Change No. 1 1976) ¶373 (“The ordinary courts of justice should be suspended only if: a. 

Judges and magistrates abstain from fulfilling their functions (see GC, art. 54; par. 422 herein); or b. The courts are 

corrupt or unfairly constituted; or c. Local judicial administration has collapsed during the hostilities preceding the 

occupation and the occupant must set up its own courts to ensure that offenses against the local laws are properly 

tried. In such cases, the occupant may establish courts of its own and make this measure known to the 

inhabitants.”).

179 Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).

180 Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).

181 Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).

182 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety); § 10.29 (Judicial Proceedings 

Regarding Protected Persons in Occupied Territory or Internees in a Belligerent’s Home Territory).

183 For example, Coalition Provisional Authority Order No. 15, Establishment of the Judicial Review Committee, 

§4(1) (Jun. 23, 2003) (“The Committee shall investigate and gather information on the suitability of Judges and 

Prosecutors to hold office. It shall have the power to remove judges and prosecutors from office, confirm their 

continued holding of office, appoint replacements for judges and prosecutors removed from office and resolve the 

claims of judges and prosecutors who assert that they were improperly removed from office.”).

184 For example, Coalition Provisional Authority Regulation No. 4, Establishment of the Iraqi Property 

Reconciliation Facility, §1(1) (Jun. 26, 2003) (“There shall be established an Iraqi Property Reconciliation Facility 
787

11.10.2 Prohibition Against Extinguishing Rights and Actions of Enemy Nationals. It is 

especially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights 

and actions of the nationals of a hostile party.

185

This rule has been interpreted to apply solely to enemy areas occupied by a belligerent.186 

It has been interpreted to prohibit a military commander from arbitrarily annulling the results of 

civil proceedings between private parties.187

11.11 CRIMINAL LAW IN OCCUPIED TERRITORY

This section addresses criminal law in occupied territory. Additional rules apply to 

judicial proceedings against protected persons in occupied territory, which are also applied by 

analogy to judicial proceedings against internees in a belligerent’s home territory.188

 

(IPRF) that shall commence operation at a time to be fixed by the Administrator, for the purpose of collecting real 

property claims and promptly resolving such claims on a voluntary basis in a fair and judicious manner.”).

185 HAGUE IV REG. art. 23 (“[I]t is especially forbidden ... (h) To declare abolished, suspended, or inadmissible in a 

court of law the rights and actions of the nationals of a hostile party.”).

186 Ex parte Kumezo Kawato, 317 U.S. 69, 72 footnote 1 (1942) (“Petitioner argues that his case is covered by 

article 23 h of the Annex to the IVth Hague Convention of 1907: ‘It is especially prohibited . . . to declare 

abolished, suspended, or inadmissible in a Court of law the rights and action of the nationals of the hostile party.’ 

This clause, which was added to the convention of 1899 without substantial discussion either by the Delegates in 

General Assembly or by the committee and sub-committee which dealt with it, III Proceedings of the Hague 

Convention of 1907, 12, 107, 136, 240; and I ibid. 83, was construed by an English Court to apply solely in enemy 

areas occupied by a belligerent. Porter v. Freudenberg, [1915] 1 K. B. 857. The question has not been raised in the 

courts in this country, but the English interpretation was repeated with approval by Representative Montague of the 

Interstate Commerce Committee in his address to the House when he presented to it the Trading with the Enemy 

Act. 55 Cong. Rec. 4842 (1917).”).

187 For example, 1958 UK MANUAL ¶524 note 1 (“Hague Rules 23 (h). The following example of the relevance of 

that article may be mentioned: during the British occupation of Cyrenaica in the course of the Second World War, 

in order to avoid disturbances, pressure was put upon the British administration to prevent the execution of a local 

judgment restoring to its Italian owner a mill in the occupation of an Arab trustee. The legal adviser of the 

Administration expressed the view that a failure to enforce the judgment would be contrary to this article, see Watts 

in Grotius Society, vol. 37, pp. 69-82.”). Cf. Ochoa v. Hernandez y Morales, 230 U.S. 139, 154-61 (1912) (“In 

order to determine the extent of the authority of General Henry, and the limitations upon it, we must look to the 

orders under which the military government was established and maintained. ... Under all the circumstances we 

deem it clear that the Governor was without authority from the President to make any order, judicial in its nature, 

that would have the effect of depriving any person of his property without due process of law. ... Whatever else may 

be uncertain about the definition of the term ‘due process of law,’ all authorities agree that it inhibits the taking of 

one man's property and giving it to another, contrary to settled usages and modes of procedure, and without notice or 

an opportunity for a hearing.); Raymond v. Thomas, 91 U.S. 712, 715-16 (1876) (“We have looked carefully 

through the acts of March 2, 1867, and July 19, 1867. They give very large governmental powers to the military 

commanders designated, within the States committed respectively to their jurisdiction; but we have found nothing to 

warrant the order here in question. It was not an order for mere delay. It did not prescribe that the proceeding 

should stop until credit and confidence were restored, and business should resume its wonted channels. It wholly 

annulled a decree in equity regularly made by a competent judicial officer in a plain case clearly within his 

jurisdiction, and where there was no pretense of any unfairness, of any purpose to wrong or oppress, or of any 

indirection whatsoever. ... It was an arbitrary stretch of authority, needful to no good end that can be imagined.”).

188 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a 

Belligerent’s Home Territory).
788

11.11.1 General Continuation of Penal Laws of the Occupied Territory. The general 

principle that the Occupying Power must respect, unless absolutely prevented, the laws in force 

in the occupied territory also applies to the penal laws of the occupied territory.189

In particular, the penal laws of the occupied territory shall remain in force during the 

occupation, with the exception that they may be repealed or suspended by the Occupying Power

where they constitute a threat to its security or an obstacle to the application of the GC.190 

Subject to the latter consideration and to the necessity of ensuring the effective administration of 

justice, the courts of the occupied territory shall continue to function in respect of all offenses 

covered by these laws.

191

11.11.1.1 Types of Laws That Are Considered Penal Laws. Penal laws addressed 

by this rule may be understood to include all laws, regulations, decrees, orders, and similar 

measures intended to repress offenses, including the rules of criminal procedure.

192

11.11.1.2 Laws Constituting an Obstacle to the Application of the GC. The 

Occupying Power may repeal or suspend penal laws constituting an obstacle to the application of 

the GC. For example, the Occupying Power may abrogate discriminatory measures that are 

incompatible with humane requirements.193 

11.11.1.3 Method of Repeal or Suspension of Penal Laws. The repeal or 

suspension of the penal laws of the occupied territory may be achieved directly through an order 

suspending or repealing the law.194 The suspension of a penal law may also be done by requiring 

that a penal law may only be enforced with the approval of the Occupying Power.

195 The repeal 

 189 Refer to § 11.9.1 (General Continuation of Municipal Law of the Occupied Territory as Between Inhabitants).

190 GC art. 64 (“The penal laws of the occupied territory shall remain in force, with the exception that they may be 

repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle 

to the application of the present Convention.”).

191 GC art. 64 (“Subject to the latter consideration and to the necessity for ensuring the effective administration of 

justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said 

laws.”).

192 GC COMMENTARY 335 (“The words ‘penal laws’ mean all legal provisions in connection with the repression of 

offenses: the penal code and rules of procedure proper, subsidiary penal laws, laws in the strict sense of the term, 

decrees, orders, the penal clauses of administrative regulations, penal clauses of financial laws, etc.”).

193 GC COMMENTARY 335 (“The second reservation is in the interests of the population and makes it possible to 

abrogate any discriminatory measures incompatible with humane requirements. It refers in particular, to provisions 

which adversely affect racial or religious minorities, such provisions being contrary to the spirit of the Convention 

(Article 27), which forbids all adverse distinction based, in particular, on race, religion, and political opinion.”).

194 For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(1) (Jun. 10, 2003) (“Without 

prejudice to the continuing review of Iraqi laws, the Third Edition of the 1969 Iraqi Penal Code with amendments, 

registered in Baghdad on the fifth day of Jumada I 1389 or the nineteenth day of July 1969, shall apply, with the 

exception that i) Part Two, Chapter Two, Paragraph 200, and ii) Part Two, Chapter Three, Section One, Paragraph 

225 are hereby suspended.”).

195 For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(2) (Jun. 10, 2003) (“Legal 

proceedings may be brought with respect to the following offenses only with the written permission of the 

Administrator of the CPA: a) Part One, Chapter Four, Paragraphs 81-84, publication offenses. b) Part Two, Chapter 

One, Paragraphs 156-189, offenses against the external security of the state. c) Part Two, Chapter Two, Paragraphs 
789

or suspension of a penal law may also be done by the Occupying Power’s subjecting the 

population of the occupied territory to additional provisions of law that are inconsistent with 

application of that penal law.

196

11.11.1.4 Continued Administration of Penal Law by Courts in the Occupied 

Territory. In general, ordinary crimes that do not affect the security of the Occupying Power or 

its personnel would be left to the jurisdiction of the courts in the occupied territory.

197

The continued administration of local and national penal law by the courts in occupied 

territory is subject to certain modifications by the Occupying Power, such as modifications 

necessary for ensuring the effective administration of justice.198

The Occupying Power may reform or establish new criminal courts in occupied territory 

as part of its authority to subject the population of the occupied territory to additional provisions

of law and its duty to restore and maintain public order.

199 In addition, the Occupying Power

may use its properly constituted, non-political military courts in occupied territory for certain 

types of offenses.200

11.11.2 Penal Provisions Enacted by the Occupying Power. As with other types of legal 

provisions, the Occupying Power may subject the population of the occupied territory to penal 

provisions: (1) that are essential to enable the Occupying Power to fulfill its obligations under 

the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of 

the Occupying Power, of the members and property of the occupying forces or administration, 

and likewise of the establishments and lines of communication used by them.201

11.11.2.1 Publication of Penal Provisions Before Coming Into Force. The penal 

provisions enacted by the Occupying Power shall not come into force before they have been 

 

190-195; 198-199; 201-219, offenses against the internal security of the state. d) Part Two, Chapter Three, Section 

One, Paragraphs 223-224; 226-228, offenses against public authorities. e) Part Two, Chapter Three, Section Two, 

Paragraph 229, offense of insulting a public official.”).

196 Refer to § 11.9.2.1 (Distinction Between Suspension, Repeal, Change, or Enactment of Municipal Laws).

197 1956 FM 27-10 (Change No. 1 1976) ¶370 (“Crimes not of a military nature and not affecting the occupant's 

security are normally left to the jurisdiction of the local courts.”).

198 1956 FM 27-10 (Change No. 1 1976) ¶370 (“In restoring public order and safety, the occupant will continue in 

force the ordinary civil and penal (criminal) laws of the occupied territory except to the extent it may be authorized 

by Article 64, GC (par 369), and Article 43, HR (par. 363), to alter, suspend, or repeal such laws (see also HR art. 23

(h); par. 372 herein; and GC, art. 51; par. 418 herein). These laws will be administered by the local officials as far 

as practicable.”).

199 For example, Coalition Provisional Authority Order No. 13, The Central Criminal Court of Iraq (Revised), 

(Amended), §1(1) (Apr. 22, 2004) (“There shall be established a Central Criminal Court of Iraq (hereinafter ‘the 

CCCI’), which shall sit in the city of Baghdad and in such sessions in other locations in Iraq as provided for in this 

Order. The CCCI shall have national jurisdiction over all matters set forth in Section 18.”).

200 Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).

201 Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law 

Applicable to Occupied Territory).
790

published and brought to the knowledge of the inhabitants in their own language.202 When more 

than one language is used by the local population, the Occupying Power may adhere to the local 

practice regarding official publication of legislation.203

The effect of these penal provisions shall not be retroactive.204

11.11.3 Properly Constituted, Non-Political Military Courts in Occupied Territory. In 

case of a breach of the penal provisions promulgated by the Occupying Power by virtue of the 

second paragraph of Article 64 of the GC, the Occupying Power may hand over the accused to 

its properly constituted, non-political military courts, on condition that these courts sit in the 

occupied country. Courts of appeals shall preferably sit in the occupied country.

205

These courts must be regularly constituted courts affording all the judicial guarantees that 

are recognized as indispensable by civilized peoples.206 These courts must also comply with 

requirements for judicial proceedings regarding protected persons in occupied territory.207

11.11.3.1 U.S. Practice for Properly Constituted, Non-Political Military Courts. 

The United States has a long history of using provost courts in occupied territory.208 In U.S. 

practice, provost courts have been used as properly constituted, non-political military courts. 

 202 GC art. 65 (“The penal provisions enacted by the Occupying Power shall not come into force before they have 

been published and brought to the knowledge of the inhabitants in their own language.”).

203 GC COMMENTARY 338 footnote 3 (“In countries which have more than one official language the Occupying 

Power will follow local practice and publish the penal provisions it enacts, in either one or more than one language, 

according to whether the country’s legislation was published in one or in more than one language before the 

occupation.”).

204 GC art. 65 (“The effect of these penal provisions shall not be retroactive.”).

205 GC art. 66 (“In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of 

Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts, 

on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied 

country.”).

206 Refer to § 8.16 (Criminal Procedure and Punishment).

207 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a 

Belligerent’s Home Territory).

208 For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 144 (1975) (“As 

instruments for shaping relations between the population and the occupation forces, military government courts were 

regarded as most important. They were expected, on the one hand, to enforce sternly the authority claimed in the 

proclamation and ordinances and, on the other, to point up for the Germans the difference between nazism and 

democracy by giving fair and impartial trials to all accused. Modeled after Army courts martial, the military 

government courts convened on three levels: summary (one officer), intermediate (one or more officers), and 

general (not less than three officers). Summary courts could impose up to one year in prison and fines in marks up 

to $1,000; intermediate courts, ten years in prison and fines to $10,000; and general courts, the death penalty and 

unlimited fines.”); WINTHROP, MILITARY LAW & PRECEDENTS 803-04 (“In the late civil war there was established at 

New Orleans by the President, by an order of October 20, 1862, a civil court entitled the ‘Provisional Court of 

Louisiana,’ with both civil and criminal jurisdiction. ... As to its jurisdiction of crimes, this appears maintained in an 

extended opinion of its judge, Hon. C.A. Peabody, in the cases of U.S. v. Reiter and Louis, charged with murder and 

arson. ... Other Provost Courts, with a jurisdiction assimilated in general to that of justices’ or police courts, were 

established from time to time by military commanders during the war;”).
791

Service regulations have addressed the use of provost courts.209

11.11.3.2 Applicable Law in Properly Constituted, Non-Political Military Courts. 

Properly constituted, non-political military courts shall apply only those provisions of law that 

were applicable prior to the offense, and that are in accordance with general principles of law, in 

particular the principle that the penalty shall be proportionate to the offense.210 The requirement 

that properly constituted, non-political military courts shall apply only those provisions of law 

that were applicable prior to the offense reflects the general rule that penal laws cannot be

retroactive and that there cannot be an offense or penalty unless the act in question was 

punishable under the law in force at the time the act was committed.211 The requirement that 

properly constituted, non-political military courts shall apply only those provisions of law that 

are in accordance with general principles of law includes the rule that punishments must be 

based on individual responsibility.212

These courts shall also take into consideration the fact that the accused is not a national of 

the Occupying Power.

213

These courts also may, at their discretion, convert a sentence of imprisonment to one of 

internment for the same period.214

11.11.4 Limitations on Penalties for Certain, Non-Serious Offenses Solely Intended to 

Harm the Occupying Power. Protected persons who commit an offense that is solely intended to 

harm the Occupying Power, but that is not an attempt on the life or limb of members of the 

occupying forces or administration, nor a grave collective danger, nor seriously damage the 

property of the occupying forces or administration, or the installations used by them, shall be 

 209 See, e.g., DEPARTMENT OF THE ARMY PAMPHLET 27-9-2, Military Judges’ Benchbook for Provost Courts (Oct. 4, 

2004).

210 GC art. 67 (“The courts shall apply only those provisions of law which were applicable prior to the offence, and 

which are in accordance with general principles of law, in particular the principle that the penalty shall be 

proportionate to the offence.”); GC COMMENTARY 341 (“Article 67 relates to the military courts before which the 

Occupying Power may bring accused persons under the terms of the preceding Article.”).

211 GC COMMENTARY 341 (“The objet [sic] of the provision is to limit the possibility of arbitrary action by the 

Occupying Power by ensuring that penal jurisdiction is exercised on a sound basis of universally recognized legal 

principles. The rule that penal laws cannot be retroactive, which is stated here in general terms, had already been 

mentioned at the end of Article 65. Nullum crimen, nulla poena sine lege is a traditional principle of penal law. 

There can be no offence, and consequently no penalty, if the act in question is not referred to in a law in force at the 

time it was committed and subject to punishment under that law.”). Refer to § 8.16.2.2 (No Crime or Punishment 

Without Prior Law); § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).

212 GC COMMENTARY 342 (“The ‘general principles of law’, which are not set out individually here but are referred 

to as a whole, include the rule concerning the personal nature of punishments, under which nobody may be punished 

for an offence committed by someone else. This rule is also laid down in Article 33 mentioned above.”). Refer to

§ 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment); § 10.5.3.2 (Collective Penalties and 

Measures of Intimidation or Terrorism).

213 GC art. 67 (“They shall take into consideration the fact that the accused is not a national of the Occupying 

Power.”).

214 Refer to § 11.11.4.2 (Discretion of Non-Political, Military Courts to Convert Sentences of Imprisonment to 

Sentences of Internment).
792

liable to internment or simple imprisonment, provided the duration of such internment or 

imprisonment is proportionate to the offense committed.215

The minor offense must have been solely intended to harm the Occupying Power in order 

to trigger these restrictions.216 For example, offenses such as traveling without a permit or 

violating exchange control regulations would not fall under this restriction, but, nonetheless, may 

result in internment or simple imprisonment.

11.11.4.1 Internment or Imprisonment as the Only Measure Adopted for 

Depriving Protected Persons of Liberty for Such Offenses. Furthermore, internment or 

imprisonment shall, for such offenses, be the only measure adopted for depriving protected 

persons of liberty.217 

Penalties that do not deprive the protected person of liberty, such as fines, or less severe 

measures, such as arrest, are not addressed by this rule.218

11.11.4.2 Discretion of Non-Political, Military Courts to Convert Sentences of 

Imprisonment to Sentences of Internment. Properly constituted non-political military courts may, 

at their discretion, convert a sentence of imprisonment to one of internment for the same 

period.219

11.11.5 Imposing the Death Penalty for Offenses Committed by Protected Persons in 

Occupied Territory. The GC provides that the penal provisions promulgated by the Occupying 

Power in accordance with Articles 64 and 65 of the GC may impose the death penalty against a 

protected person only in cases where the person is guilty of espionage, or serious acts of 

sabotage against the military installations of the Occupying Power, or of intentional offenses that

have caused the death of one or more persons, provided that such offenses were punishable by 

death under the law of the occupied territory in force before the occupation began.220 

 215 GC art. 68 (“Protected persons who commit an offence which is solely intended to harm the Occupying Power, 

but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, 

nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the 

installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such 

internment or imprisonment is proportionate to the offence committed.”).

216 GC COMMENTARY 343 (“The minor offences must have been ‘solely’ intended to harm the Occupying Power. 

The inclusion of the word ‘solely’ excludes acts which harm the Occupying Power indirectly.”).

217 GC art. 68 (“Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for 

depriving protected persons of liberty.”).

218 GC COMMENTARY 344 (“It should be noted that internment and imprisonment are only mentioned as maximum 

penalties, and less severe penalties still, such as placing under arrest or fines, may be applied in the case of persons 

accused of minor offences.”).

219 GC art. 68 (“The courts provided for under Article 66 of the present Convention may at their discretion convert a 

sentence of imprisonment to one of internment for the same period.”).

220 GC art. 68 (“The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 

may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious 

acts of sabotage against the military installations of the Occupying Power or of intentional offences which have 
793

However, the United States has reserved the right to impose the death penalty in 

accordance with the provisions of Article 68, paragraph 2, of the GC without regard to whether 

the offenses referred to in that paragraph are punishable by death under the law of the occupied 

territory at the time the occupation begins.221 The United States expressed the position that an 

Occupying Power would be unable to protect its own forces adequately against the activities of 

illegal combatants unless it retained the authority to apply the death penalty, and the rule in 

Article 68 of the GC would be subject to manipulation in that an adversary on the verge of being 

occupied might repeal the death penalty to encourage subversive activities against an Occupying 

Power.

222

The death penalty may not be pronounced against a protected person unless the attention 

of the court has been particularly called to the fact that since the accused is not a national of the 

Occupying Power, he or she is not bound to it by any duty of allegiance.223 

In any case, the death penalty may not be pronounced against a protected person who was 

under eighteen years of age at the time of the offense.224

In practice, if an occupation is undertaken with coalition partners, the death penalty may 

be suspended in order to address requests of these States.225

11.11.6 Deduction From Sentences of Period Under Arrest. In all cases, the duration of 

 

caused the death of one or more persons, provided that such offences were punishable by death under the law of the 

occupied territory in force before the occupation began.”).

221 United States, Statement on Ratification of the GC, Aug. 2, 1955, 213 UNTS 384 (“The United States reserves 

the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to 

whether the offenses referred to therein are punishable by death under the law of the occupied territory at the time 

the occupation begins.”).

222 SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the 

Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 23 (Jun. 27, 1955) 

(“Adoption of this limitation upon the death penalty was due to the efforts of a number of countries, some of which 

had experienced whole-sale imposition of this extreme measure under military occupation, and others of which have 

abolished the death penalty in their legal systems. Our own Government, while willing to agree not to impose it 

except in the three categories of cases listed in article 68, was unable to accept the proviso further limiting its use. 

Along with the United Kingdom, we took the position that an occupying power would be unable to protect its own 

forces adequately against the activities of illegal combatants unless it retained the power to take drastic legal action 

to meet the situation. From a practical standpoint, moreover, the limitation in article 68 would permit an enemy on 

the point of being dislodged from the national territory to repeal a death penalty law previously applicable, thus 

opening the way to all kinds of subversive activities against the occupant which would not be punishable by 

death.”).

223 GC art. 68 (“The death penalty may not be pronounced against a protected person unless the attention of the court 

has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not 

bound to it by any duty of allegiance.”). Compare § 9.28.6 (Death Sentences); § 10.29.5 (Death Sentences).

224 GC art. 68 (“In any case, the death penalty may not be pronounced against a protected person who was under 

eighteen years of age at the time of the offense.”).

225 For example, Coalition Provision Authority Order No. 7, Penal Code, §3(1) (Jun. 10, 2003) (“Capital 

punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an 

offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for 

in the Penal Code.”).
794

the period during which a protected person accused of an offense is under arrest awaiting trial or 

punishment shall be deducted from any period of imprisonment awarded.226

11.11.7 Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts. The 

GC provides for certain limitations on the criminal jurisdiction of the Occupying Power with 

respect to the pre-occupation acts of protected persons and of nationals of the Occupying Power, 

who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.

11.11.7.1 Pre-Occupation Acts of Protected Persons. Protected persons shall not 

be arrested, prosecuted, or convicted by the Occupying Power for acts committed or opinions 

expressed before the occupation, or during a temporary interruption thereof, with the exception 

of breaches of the laws and customs of war.227 

11.11.7.2 Protection of Nationals of the Occupying Power Who, Before the 

Outbreak of Hostilities, Have Sought Refuge in the Territory of the Occupied State. Nationals of 

the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory 

of the occupied State, shall not be arrested, prosecuted, convicted, or deported from the occupied 

territory, except for offenses committed after the outbreak of hostilities, or for offenses under 

common law committed before the outbreak of hostilities that, according to the law of the 

occupied State, would have justified extradition in time of peace.228

Thus, although protected persons may not be forcibly transferred or deported to another 

country,

229 nationals of the Occupying Power may be involuntarily removed under certain 

circumstances.230

This rule is an exception to the general principle that a State’s own nationals are excluded 

from the protection of the GC.231

11.11.8 Disposition of Accused and Convicted Protected Persons Upon the Close of 

Occupation. Protected persons who have been accused of offenses or convicted by courts in 

 226 GC art. 69 (“In all cases, the duration of the period during which a protected person accused of an offence is 

under arrest awaiting trial or punishment shall be deducted from any period of imprisonment awarded.”).

227 GC art. 70 (“Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts 

committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the

exception of breaches of the laws and customs of war.”).

228 GC art. 70 (“Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the 

territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, 

except for offences committed after the outbreak of hostilities, or for offences under common law committed before 

the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time 

of peace.”).

229 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

230 GC COMMENTARY 351-52 (“When criminals again fall into the hands of their State of origin, as a result of the 

occupation of the territory in which they are living, they must answer for their actions; the occupying authorities 

may therefore arrest them, take them back to their home country and bring them before its courts, provided the law 

of the occupied State would have justified their extradition in time of peace.”).

231 Refer to § 10.3.3.1 (A State’s Own Nationals).
795

occupied territory shall be handed over at the close of occupation, with the relevant records, to 

the authorities of the liberated territory.232

Pending their transfer to such authorities, such protected persons continue to be protected 

by the GC because protected persons whose release, repatriation, or re-establishment may take 

place after such dates continue to benefit from the protections of the GC.

233

The practical arrangements for the handing over of such protected persons will depend on 

the circumstances, including whether the liberation of occupied territory is accompanied by 

fighting and whether the local administration is able to function.

234 

If occupying forces will remain in occupied territory after the end of occupation, it is 

permissible, with the consent of the formerly occupied State, for the occupying forces to retain 

custody, in the formerly occupied territory, of protected persons accused or convicted of 

offenses.

11.12 MOVEMENT OF PERSONS IN OCCUPIED TERRITORY

11.12.1 Authority of the Occupying Power to Restrict Freedom of Movement. As a 

general matter, the Occupying Power assumes the authority of the State whose territory is 

occupied in controlling the movement of persons within the occupied territory, as well as the 

movement of persons entering and exiting occupied territory. For example, private persons, 

members of non-governmental organizations, or representatives of foreign States or international 

organizations seeking to enter occupied territory generally would not be able to do so without 

authorization from the Occupying Power.

The Occupying Power may withdraw from individuals the right to change their residence, 

restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration and 

immigration by protected persons who are nationals of the State whose territory is occupied, and 

require that all individuals carry identification documents.235

11.12.2 Departure of Protected Persons Who Are Not Nationals of the State Whose 

Territory Is Occupied. Protected persons who are not nationals of the State whose territory is 

occupied may avail themselves of the right to leave occupied territory subject to the provisions 

of Article 35 of the GC, and decisions thereon shall be taken according to the procedure that the 

 232 GC art. 77 (“Protected persons who have been accused of offenses or convicted by the courts in occupied 

territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated 

territory.”).

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

234 GC COMMENTARY 367 (“The Convention does not lay down any rules concerning the practical arrangements for 

handing over detainees, because they will depend on circumstances and on whether the liberation of the occupied 

territory is accompanied by fighting or not, and whether the local administration has been able to continue to 

function or not.”).

235 1956 FM 27-10 (Change No. 1 1976) ¶375 (“The occupant may withdraw from individuals the right to change 

their residence, restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration and 

immigration (but see GC art. 48; par. 381 herein), and require that all individuals carry identification documents.”).
796

Occupying Power shall establish in accordance with the Article 35 of the GC.236

Article 35 of the GC sets forth rules regarding the departure of protected persons from the 

home territory of a belligerent State and provides protected persons with a right to depart. But, 

Article 35 allows a belligerent to prevent such departure if such departure is contrary to the 

belligerent’s national interests, and Article 35 specifies certain procedural requirements.

237

Thus, for example, an Occupying Power may prevent the departure of protected persons 

who are not nationals of the State whose territory is occupied if such departure is contrary to the 

Occupying Power’s national interests. The Occupying Power must comply with the 

requirements of Article 35 of the GC if it does so (e.g., providing for the reconsideration of its 

refusal of permission to depart by an appropriate court or administrative board).

238

11.12.3 Prohibition Against Forcible Transfers and Deportations. Individual or mass 

forcible transfers, as well as deportations of protected persons from occupied territory to the 

territory of the Occupying Power, or of any other country, occupied or not, are prohibited, 

regardless of their motive.239

The unlawful deportation or transfer of protected persons in violation of this rule 

constitutes a grave breach of the GC.240

11.12.3.1 Exception for Certain Transfers and Evacuations. Nevertheless, the 

Occupying Power may undertake total or partial evacuation of a given area if required for the 

security of the population or for imperative military reasons. Such evacuations may not involve 

the displacement of protected persons outside the bounds of the occupied territory except when, 

for material reasons, it is impossible to avoid such displacement. Persons thus evacuated shall be 

transferred back to their homes as soon as hostilities in the area in question have ceased.241

For example, in some cases, the whole of occupied territory, such as an island, may be 

 236 GC art. 48 (“Protected persons who are not nationals of the Power whose territory is occupied, may avail 

themselves of the right to leave the territory subject to the provisions of Article 35, and decisions thereon shall be 

taken according to the procedure which the Occupying Power shall establish in accordance with the said Article.”).

237 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).

238 GC COMMENTARY 277 (“For the procedure to be followed, Article 48 refers expressly to Article 35. Persons 

who wish to leave the occupied territory therefore enjoy the same safeguards as protected persons living in the 

territory of a party to the conflict, i.e. they will have the right to appeal to a court or administrative board and to ask 

for a Protecting Power to intervene. On the other hand, under paragraph 1 of Article 35, the Occupying Power is 

entitled to object to the departure of a protected person when its national interests make this absolutely necessary.”).

239 GC art. 49 (“Individual or mass forcible transfers, as well as deportations of protected persons from occupied 

territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, 

regardless of their motive.”).

240 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

241 GC art. 49 (“Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the 

security of the population or imperative military reasons so demand. Such evacuations may not involve the 

displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is 

impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as 

hostilities in the area in question have ceased.”).
797

dangerous, and it may be safer for the protected person to be transferred from occupied 

territory.242

The Occupying Power undertaking such transfers or evacuations shall ensure, to the 

greatest practicable extent: (1) that proper accommodation is provided to receive the protected 

persons; (2) that evacuations or transfers are effected with satisfactory conditions of hygiene, 

health, safety, and nutrition; and (3) that members of the same family are not separated.243

11.12.3.2 Transfer Prohibition Only Applicable to Protected Persons. Persons in 

occupied territory who do not receive protected person status under the GC are not subject to this

prohibition on forcible transfers.

244 For example, POWs may be transferred from occupied 

territory to POW camps in the home territory of a belligerent.245 Similarly, a person who is not 

entitled to protected person status, such as a national of a neutral or non-belligerent State who 

travels to an occupied State to fight the Occupying Power, would not be covered by this 

prohibition.246

11.12.3.3 Notification of Transfers and Evacuations to the Protecting Power. The 

Protecting Power shall be informed of any transfers and evacuations as soon as they have taken 

place.

247

11.12.3.4 Voluntary Transfers Not Prohibited. Only forcible transfers are 

prohibited; voluntary transfers from occupied territory, such as voluntary transfers of persons 

belonging to a minority group that had been persecuted by the occupied State, would not be 

prohibited.248

 242 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 759 (“As regards the proposed 

suppression of the words ‘except in cases of physical necessity’, there were cases where, owing to the limited size of 

the territory, it was physically impossible to evacuate the population otherwise than to places outside the occupied 

territory. That was the case, for example, in the islands of Wake and Guam, where the whole of the territory could 

be considered as dangerous.”).

243 GC art. 49 (“The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest 

practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are 

effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are 

not separated.”).

244 Refer to § 10.3.2 (Persons Who Receive Protected Person Status Under the GC); § 10.3.3 (Categories of 

Nationals Specifically Excluded From the Definition of Protected Person Under the GC).

245 Refer to § 9.11.3.3 (Location Outside the Theater of Military Operations).

246 Refer to § 10.3.2.1 (“Find Themselves”).

247 GC art. 49 (“The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken 

place.”). Consider AP I art. 78 (“Any such evacuation [of children] shall be supervised by the Protecting Power in 

agreement with the Parties concerned, namely the Party arranging the evacuation, the Party receiving the children 

and any Parties whose nationals are being evacuated.”).

248 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 827 (“Although there was general 

unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of 

Article 45 caused some trouble in view of the difficulty in reconciling exactly the ideas expressed with the various 

terms in French, English and Russian. In the end the Committee have decided on a wording which prohibits 

individual or mass forcible removals as well as deportations of protected persons from occupied territory to any 
798

11.12.4 General Prohibition Against Detaining Protected Persons in Dangerous Areas. 

The Occupying Power shall not detain protected persons in an area particularly exposed to the 

dangers of war unless the security of the population or imperative military reasons so demand.249

11.12.5 Prohibition Against Deporting or Transferring the Occupied State’s Civilian 

Population Into Occupied Territory. The Occupying Power shall not deport or transfer parts of 

its own civilian population into the territory it occupies.

250

11.13 PROTECTION OF CHILDREN IN OCCUPIED TERRITORY

Article 50 of the GC provides for certain duties of an Occupying Power with respect to 

children in occupied territory. “Children” for the purposes of Article 50 of the GC and its 

obligations with respect to the protection of children in occupied territory may be understood 

generally to refer to children under fifteen years of age.251 

Other duties that are not specific to occupied territory exist with regard to children.

252

11.13.1 Obligation With Respect to the Care and Education of Children. The Occupying 

Power shall, with the cooperation of the national and local authorities, facilitate the proper 

working of all institutions devoted to the care and education of children.253 This obligation goes 

beyond merely not interfering with such institutions, but also includes the affirmative duty to 

 

other country, but which permits voluntary transfers.”). See also id. at 759 (“Mr. CLATTENBURG (United States of 

America) believed that the addition (suggested by the Soviet Delegation) of the words ‘any other transfer’ would 

have hampered the evacuation of the religious and political minorities which the Allies, on entering Germany, had 

discovered in labour and concentration camps.”).

249 GC art. 49 (“The Occupying Power shall not detain protected persons in an area particularly exposed to the 

dangers of war unless the security of the population or imperative military reasons so demand.”). Consider AP I art. 

78 (“In each case [of the evacuation of children], all Parties to the conflict shall take all feasible precautions to avoid 

endangering the evacuation.”).

250 GC art. 49 (“The Occupying Power shall not deport or transfer parts of its own civilian populations into the 

territory it occupies.”).

251 GC COMMENTARY 285 (“What should the word ‘children’ be considered to mean for the purposes of Article 50? 

Although the conception of ‘children’ has an important place in the Convention there is, as has already been pointed 

out, no general definition of the word. On the other hand the Convention has fixed various age limits in the 

provisions prescribing preferential treatment for children: fifteen years of age, in Articles 14 (hospital and safety 

zones), 23 (consignment of relief supplies), 24 and 38 (5) (measures relating to child welfare); twelve years of age in 

Article 24, paragraph 3 (identification); and, as will be seen, eighteen years of age in Articles 51, paragraph 2 

(compulsory labour) and 68, paragraph 4 (death penalty). Article 50, unlike those just mentioned, does not specify 

any age limit for the children to whom it refers, except in the last paragraph. Since, however, the establishments and 

institutions which paragraph 1 is intended to protect are generally for children and young people up to the age of 

fifteen, that appears to be a reasonable upper limit and might therefore serve here as a criterion. The application of 

Article 50, however, cannot depend on any formal and often too rigid rule; its application must be governed by the 

degree of development of the physical and mental faculties of the persons concerned; it may therefore be applied to 

young people until such time as they attain their majority. The meaning given to the term ‘children’ will also, of 

course, depend on the legislation of the occupied country, particularly in respect of identification.”).

252 Refer to § 4.20 (Children).

253 GC art. 50 (“The Occupying Power shall, with the cooperation of the national and local authorities, facilitate the 

proper working of all institutions devoted to the care and education of children.”).
799

support them when the responsible authorities of the country fail to do so.254

Should the local institutions be inadequate for the purpose, the Occupying Power shall

make arrangements for the maintenance and education – if possible, by persons of their own 

nationality, language, and religion – of children who are orphaned or separated from their parents 

as a result of the war, and who cannot be adequately cared for by a near relative or friend.255

11.13.2 Obligation With Respect to the Identification of Children. The Occupying Power

shall take all necessary steps to facilitate the identification of children and the registration of 

their parentage.256

A special section of the National Protected Person Information Bureau set up in 

accordance with Article 136 of the GC shall be responsible for taking all necessary steps to 

identify children whose identity is in doubt.257

11.13.3 Prohibition Against Changing the Personal Status of Children or Enlisting Them. 

The Occupying Power may not, in any case, change the personal status of children, nor enlist 

them in formations or organizations subordinate to it.258

11.13.4 Obligation Not to Hinder Preferential Measures for Children and Mothers. The 

Occupying Power shall not hinder the application of any preferential measures in regard to food, 

medical care, and protection against the effects of war that may have been adopted prior to the 

occupation in favor of children under fifteen years, expectant mothers, and mothers of children 

under seven years.259

11.14 FOOD AND MEDICAL SUPPLIES FOR THE CIVILIAN POPULATION

11.14.1 Duty of Ensuring the Food and Medical Supplies for the Population. To the 

fullest extent of the means available to it, the Occupying Power has the duty of ensuring the 

sufficiency of food and medical supplies for the population; it should, in particular, bring in the 

 254 GC COMMENTARY 286 (“The Occupying Powers must, with the co-operation of the national and local 

authorities, facilitate the proper working of children's institutions. That means that the occupying authorities are 

bound not only to avoid interfering with their activities, but also to support them actively and even encourage them 

if the responsible authorities of the country fail in their duty.”).

255 GC art. 50 (“Should the local institutions be inadequate for the purpose, the Occupying Power shall make 

arrangements for the maintenance and education, if possible by persons of their own nationality, language and 

religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be 

adequately cared for by a near relative or friend.”).

256 GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and the 

registration of their parentage.”).

257 Refer to § 10.31.2.5 (Special Section for the Identification of Children in Occupied Territory).

258 GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and the 

registration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations or 

organizations subordinate to it.”).

259 GC art. 50 (“The Occupying Power shall not hinder the application of any preferential measures in regard to 

food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in 

favour of children under fifteen years, expectant mothers, and mothers of children under seven years.”).
800

necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory 

are inadequate.260 Other articles may be understood to include all urgently required goods that 

may be essential to the “life of the territory.”261

11.14.2 Limitation on Requisition of Food and Medical Supplies. The Occupying Power

may not requisition foodstuffs, articles, or medical supplies available in the occupied territory, 

except for use by the occupation forces and administration personnel, and then only if the 

requirements of the civilian population have been taken into account.262 Subject to the 

provisions of other international conventions, the Occupying Power shall make arrangements to 

ensure that fair value is paid for any requisitioned goods.263

11.14.3 Verification of the State of Food and Medical Supplies by the Protecting Power. 

The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical 

supplies in occupied territories, except where temporary restrictions are made necessary by 

imperative military requirements.264

11.15 PUBLIC HEALTH AND HYGIENE

11.15.1 General Duty With Respect to Public Health. To the fullest extent of the means 

available to it, the Occupying Power has the duty of ensuring and maintaining, with the 

cooperation of national and local authorities, medical and hospital establishments, medical 

services, and public health and hygiene in the occupied territory, with particular reference to the 

 260 GC art. 55 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the 

food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores 

and other articles if the resources of the occupied territory are inadequate.”).

261 1956 FM 27-10 (Change No. 1 1976) ¶384 (“b. Other Articles To Be Supplied. The other articles which the 

occupant is required to provide under the above provision include all urgently required, goods which may be 

essential to the life of the territory.”). See also GC COMMENTARY 309-10 (“Article 55 is concerned exclusively with 

the question of food and medical supplies for the population of an occupied territory. ... Supplies for the population 

are not limited to food, but include medical supplies and any article necessary to support life.”).

262 GC art. 55 (“The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the 

occupied territory, except for use by the occupation forces and administration personnel, and then only if the 

requirements of the civilian population have been taken into account.”). Consider AP I art. 14 (“Limitations on 

requisition of civilian medical units – ... 2. The Occupying Power shall not, therefore, requisition civilian medical 

units, their equipment, their materiel or the services of their personnel, so long as these resources are necessary for 

the provision of adequate medical services for the civilian population and for the continuing medical care of any 

wounded and sick already under treatment. 3. Provided that the general rule in paragraph 2 continues to be observed, 

the Occupying Power may requisition the said resources, subject to the following particular conditions: (a) that the 

resources necessary for the adequate and immediate medical treatment of the wounded and sick members of the 

armed forces of the Occupying Power or of prisoners of war; (b) that the requisition continues only while such 

necessity exists; and (c) that immediate arrangements are made to ensure that the medical needs of the civilian 

population, as well as those of any wounded and sick under treatment who are affected by the requisition, continue 

to be satisfied.”).

263 GC art. 55 (“Subject to the provisions of other international Conventions, the Occupying Power shall make 

arrangements to ensure that fair value is paid for any requisitioned goods.”).

264 GC art. 55 (“The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical 

supplies in occupied territories, except where temporary restrictions are made necessary by imperative military 

requirements.”).
801

adoption and application of the prophylactic and preventive measures necessary to combat the 

spread of contagious diseases and epidemics.265 The responsibility for providing and 

maintaining health services falls primarily on the national and local authorities, but where such 

authorities are unable to provide adequately for the health needs of the civilian population, the 

Occupying Power then has the duty described above.266

11.15.2 Respect for the Work of Civilian Medical Personnel. Medical personnel of all 

categories must be allowed to carry out their duties.267 “Medical personnel of all categories”

includes a wide range of persons engaged in medical work.268 It includes even those who are not 

affiliated with civilian hospitals who qualify for protection under Article 20 of the GC.269

11.15.3 Recognition of New Hospitals, Medical Personnel, and Transports. If new 

hospitals are set up in occupied territory and if the competent organs of the occupied State are 

not operating there, the occupying authorities must, if necessary, grant them the recognition 

provided for in Article 18 of the GC.

270 This recognition allows the civilian hospitals to show 

that they are civilian hospitals and that the buildings that they occupy are not used for any 

purpose that would deprive these hospitals of protection.

271 In similar circumstances, the 

occupying authorities must also grant recognition to hospital personnel and transport vehicles 

under the provisions of Articles 20 and 21 of the GC.272 This recognition also allows such

 265 GC art. 56 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and 

maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and 

services, public health and hygiene in the occupied territory, with particular reference to the adoption and 

application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and 

epidemics.”).

266 GC COMMENTARY 313-14 (“[T]here can be no question of making the Occupying Power alone responsible for 

the whole burden of organizing hospitals and health services and taking measures to control epidemics. The task is 

above all one for the competent services of the occupied country itself. It is possible that in certain cases the 

national authorities will be perfectly well able to look after the health of the population; in such cases the Occupying 

Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for the 

task. In most cases, however, the invading forces will be occupying a country suffering severely from the effects of 

war; hospitals and medical services will be disorganized, without the necessary supplies and quite unable to meet the 

needs of the population. The Occupying Power must then, with the co-operation of the authorities and to the fullest 

extent of the means available to it, ensure that hospital and medical services can work properly and continue to do 

so.”).

267 GC art. 56 (“Medical personnel of all categories shall be allowed to carry out their duties.”).

268 GC COMMENTARY 314 (“‘Medical personnel of all categories’ should be taken to mean all people engaged in a 

branch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher 

bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital. On that point the 

provision differs from Article 20 of the Convention, which refers only to hospital staff, who are alone authorized to 

wear the armlet bearing the red cross emblem.”).

269 Refer to § 7.17.4 (Protection of Civilian Hospital Personnel).

270 GC art. 56 (“If new hospitals are set up in occupied territory and if the competent organs of the occupied State 

are not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in 

Article 18. In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel and 

transport vehicles under the provisions of Articles 20 and 21.”).

271 Refer to § 7.17.2.1 (State-Issued Certificates for Civilian Hospitals).

272 GC art. 56 (“In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel 

and transport vehicles under the provisions of Articles 20 and 21.”).
802

personnel and vehicles to display their entitlement to protection.273

11.15.4 Consideration of Cultural Traditions of the Population in Adopting Public Health 

Measures. In adopting measures of health and hygiene, and in their implementation, the 

Occupying Power must take into consideration the moral and ethical susceptibilities of the 

population of the occupied territory.274 The Occupying Power should respect the sentiments and 

traditions of the population, and should not introduce new methods if they are liable to cause 

deep disquiet among the population.275

11.15.5 Requisition of Civilian Hospitals. The Occupying Power may requisition civilian 

hospitals only temporarily and only in cases of urgent necessity for the care of military wounded 

and sick, and then on the condition that suitable arrangements are made in due time for the care 

and treatment of the hospital’s current patients, and for the future needs of the civilian population 

for hospital accommodation. The material and stores of civilian hospitals cannot be 

requisitioned so long as they are necessary for the needs of the civilian population.276 

If the requisition of medical supplies is required for the occupying force, they must take 

the needs of the civilian population into account and resupply the materials as soon as 

possible.277

11.16 SPIRITUAL ASSISTANCE

The Occupying Power shall permit ministers of religion to give spiritual assistance to the 

members of their religious communities. The Occupying Power shall also accept consignments 

of books and articles required for religious needs and shall facilitate their distribution in occupied 

territory.278 

Religious assistance addressed by the GC, however, does not include activities that are a 

 273 Refer to § 7.17.4 (Protection of Civilian Hospital Personnel); § 7.18 (Land and Sea Civilian Hospital Convoys).

274 GC art. 56 (“In adopting measures of health and hygiene and in their implementation, the Occupying Power shall 

take into consideration the moral and ethical susceptibilities of the population of the occupied territory.”).

275 GC COMMENTARY 315 (“The purpose of this provision is to ensure respect for sentiments and traditions, which 

must not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are 

liable to cause deep disquiet among the population.”).

276 GC art. 57 (“The Occupying Power may requisition civilian hospitals only temporarily and only in cases of 

urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are 

made in due time for the care and treatment of patients and the needs of the civilian population for hospital 

accommodation. The material and stores of civilian hospitals cannot be requisitioned so long as they are necessary 

for the needs of the civilian population.”).

277 GC COMMENTARY 318 (“When so doing, it will take the needs of the population into account and it will replace 

the material used as soon as possible, usually by importing medical supplies in accordance with Article 55.”).

278 GC art. 58 (“The Occupying Power shall permit ministers of religion to give spiritual assistance to the members 

of their religious communities. The Occupying Power shall also accept consignments of books and articles required 

for religious needs and shall facilitate their distribution in occupied territory.”).
803

pretext for political agitation against the Occupying Power.

279

11.17 RELIEF EFFORTS AND CONSIGNMENTS

Special rules address relief efforts in occupied territory. Other rules address relief efforts 

outside the context of occupation.280

11.17.1 Collective Relief. If the whole or part of the population of an occupied territory 

is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the 

affected population, and shall facilitate them by all the means at its disposal. Such schemes,

which may be undertaken either by States or by impartial humanitarian organizations such as the 

ICRC, shall consist, in particular, of the provision of consignments of foodstuffs, medical 

supplies, and clothing.281 

All Parties to the GC shall permit the free passage of these consignments and shall 

guarantee their protection.

282

A State granting free passage to consignments on their way to territory occupied by an 

adverse party to the conflict shall, however, have the right to search the consignments, to 

regulate their passage according to prescribed times and routes, and to be reasonably satisfied 

(through the Protecting Power) that these consignments are to be used for the relief of the needy 

population, and are not to be used for the benefit of the Occupying Power.

283

11.17.1.1 Diversion of Relief Consignments. The Occupying Power shall in no 

way whatsoever divert relief consignments from the purpose for which they are intended, except 

in cases of urgent necessity, in the interests of the population of the occupied territory, and with 

 279 GC COMMENTARY 318 (“[R]eligious assistance must in no case serve as a pretext for political agitation against 

the Occupying Power. Should occasion arise, the Occupying Power would be entitled to take appropriate action, 

since the provision under discussion authorizes only spiritual assistance, and not activities which have nothing to do 

with religion.”).

280 Refer to § 5.19.3 (Passage of Relief Consignments); § 8.10.1 (Receipt of Individual or Collective Relief); § 9.20

(POW Correspondence and Relief Shipments); § 10.23 (Internee Correspondence and Relief Shipments).

281 GC art. 59 (“If the whole or part of the population of an occupied territory is inadequately supplied, the 

Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the 

means at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarian 

organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of 

consignments of foodstuffs, medical supplies and clothing. All Contracting Parties shall permit the free passage of 

these consignments and shall guarantee their protection.”).

282 GC art. 59 (“All Contracting Parties shall permit the free passage of these consignments and shall guarantee their 

protection.”).

283 GC art. 59 (“A Power granting free passage to consignments on their way to territory occupied by an adverse 

Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to 

prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are 

to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.”).
804

the consent of the Protecting Power.

284

11.17.1.2 Distribution of Collective Relief Consignments. The distribution of 

collective relief consignments referred to in Articles 59 and 60 of the GC shall be carried out 

with the cooperation and under the supervision of the Protecting Power. This duty may also be 

delegated, by agreement between the Occupying Power and the Protecting Power, to a neutral 

State, the ICRC, or any other impartial humanitarian body.285

The Occupying Power shall facilitate the rapid distribution of these consignments.286 For 

example, it may be necessary for the occupation authorities to remove administrative 

impediments (e.g., granting permits) to relief organizations distributing consignments.287

11.17.1.3 Charges, Taxes, and Customs Duties on Collective Relief Consignments 

for Occupied Territories. Collective relief consignments referred to in Articles 59 and 60 of the 

GC shall be exempt in occupied territory from all charges, taxes, or customs duties unless such 

charges, taxes, or customs duties are necessary in the interests of the economy of the territory.288 

All Parties to the GC shall endeavor to permit the transit and transport, free of charge, of such 

relief consignments on their way to occupied territories.289

11.17.2 Individual Relief Consignments. Subject to imperative reasons of security, 

protected persons in occupied territories shall be permitted to receive individual relief 

consignments sent to them.290

An individual relief consignment is a shipment that is addressed to a particular person.

291

 284 GC art. 60 (“The Occupying Power shall in no way whatsoever divert relief consignments from the purpose for 

which they are intended, except in cases of urgent necessity, in the interests of the population of the occupied 

territory and with the consent of the Protecting Power.”).

285 GC art. 61 (“The distribution of the relief consignments referred to in the foregoing Articles shall be carried out 

with the cooperation and under the supervision of the Protecting Power. This duty may also be delegated, by 

agreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International 

Committee of the Red Cross or to any other impartial humanitarian body.”).

286 GC art. 61 (“The Occupying Power shall facilitate the rapid distribution of these consignments.”).

287 GC COMMENTARY 328 (“The second sentence in paragraph 2 says that the Occupying Power is to facilitate the 

rapid distribution of the consignments. The effect of a relief scheme will depend above all on the time the 

consignments take to reach the recipients; it is therefore important for the occupation authorities to take all necessary 

steps to facilitate their despatch and distribution (cutting out red tape, making transport available, granting permits 

allowing freedom of movement, facilities of all kinds for the staff of the distributing and supervising bodies, etc.).”).

288 GC art. 61 (“Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties 

unless these are necessary in the interests of the economy of the territory.”).

289 GC art. 61 (“All Contracting Parties shall endeavour to permit the transit and transport, free of charge, of such 

relief consignments on their way to occupied territories.”).

290 GC art. 62 (“Subject to imperative reasons of security, protected persons in occupied territories shall be permitted 

to receive the individual relief consignments sent to them.”).

291 GC COMMENTARY 329 (“Unlike the three previous Articles which refer to relief supplies for a group of protected 

persons (collective consignments), Article 62 deals with consignments addressed to individuals (individual 

consignments).”).
805

The occupation authorities may limit or temporarily forbid the entry of individual relief 

supplies for imperative reasons of security, such as if the volume of relief consignments prevents 

security screening.

292

11.17.3 Continuing Responsibilities of the Occupying Power. Relief consignments shall 

in no way relieve the Occupying Power of any of its responsibilities under Articles 55, 56, and 

59 of the GC.293 The responsibilities of the Occupying Power under Articles 55, 56, and 59 of 

the GC relate to ensuring the provision of food, medical supplies, and medical services to the 

population.

294

11.17.4 National Red Cross or Red Crescent Societies and Other Relief Organizations. 

Subject to temporary and exceptional measures imposed for urgent reasons of security by the 

Occupying Power: 

• recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able 

to pursue their activities in accordance with Red Cross principles, as prescribed by the 

International Red Cross Conferences. Other relief societies shall be permitted to continue 

their humanitarian activities under similar conditions; 

• the Occupying Power may not require any changes in the personnel or structure of these 

societies that would prejudice these activities.

295

The same principles shall apply to the activities and personnel of special organizations of 

a non-military character that already exist or that may be established for the purpose of ensuring 

the living conditions of the civilian population by the maintenance of the essential public utility 

services, by the distribution of relief, and by the organization of rescues.296

 292 GC COMMENTARY 329 (“[T]he occupation authorities have the right to refuse to receive individual relief 

consignments if imperative reasons of security so demand. A similar reservation in regard to collective relief was 

put forward during the preparatory work on Article 59, but was not adopted. The reservation was kept in Article 62 

in order that efficient verification should not be rendered impossible by the arrival of huge quantities of individual 

parcels. Under such circumstances the Occupying Power could avoid importing articles detrimental to its security 

by limiting or temporarily forbidding the entry of individual relief supplies.”).

293 GC art. 60 (“Relief consignments shall in no way relieve the Occupying Power of any of its responsibilities under 

Articles 55, 56 and 59.”).

294 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene); 

§ 11.17.1 (Collective Relief).

295 GC art. 63 (“Subject to temporary and exceptional measures imposed for urgent reasons of security by the 

Occupying Power: (a) recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able to 

pursue their activities in accordance with Red Cross principles, as defined by the International Red Cross 

Conferences. Other relief societies shall be permitted to continue their humanitarian activities under similar 

conditions; (b) the Occupying Power may not require any changes in the personnel or structure of these societies, 

which would prejudice the aforesaid activities.”).

296 GC art. 63 (“The same principles shall apply to the activities and personnel of special organizations of a nonmilitary character, which already exist or which may be established, for the purpose of ensuring the living conditions 

of the civilian population by the maintenance of the essential public utility services, by the distribution of relief and 

by the organization of rescues.”).
806

11.18 ENEMY PROPERTY DURING OCCUPATION

Pillage is prohibited. Enemy property in occupied territory may not be seized or 

destroyed unless imperatively demanded by the necessities of war. The Occupying Power may 

take certain control measures with respect to property in occupied territory. Other rules apply to

the treatment of public enemy property and private enemy property in occupied territory.

Prohibition Against Pillage in Occupied Territory. Pillage is forbidden.297 11.18.1 In 

addition to this specific prohibition in the context of occupied territory, pillage is prohibited as a 

general matter.298

11.18.2 Seizure or Destruction of Property During Occupation – Application of the

Military Necessity Standard. The general rule that enemy property may not be seized or 

destroyed unless imperatively demanded by the necessities of war also applies to property during 

the occupation of enemy territory.299 In particular, any destruction by the Occupying Power of 

real (immovable) or personal (movable) property belonging individually or collectively to 

private persons, to the State of the occupied territory, to other public authorities, or to social or 

cooperative organizations, is prohibited, except where such destruction is rendered absolutely 

necessary by military operations.300

11.18.2.1 Assessment of Military Necessity for Seizure or Destruction. The 

evaluation of whether destruction of property is militarily necessary in the context of occupation 

is undertaken by applying the standards that also are applied in the context of combat 

operations.301 For example, the evaluation of whether the destruction of property is militarily 

necessary is made by the responsible commander or other authority of the Occupying Power.

302 

However, such assessment must be made in good faith based on the information available at the 

time.

303

11.18.2.2 Temporary Possession for Direct Military Use. An Occupying Power

may always take temporary possession of enemy property (real or personal, and public or 

 297 HAGUE IV REG. art. 47 (“Pillage is formally forbidden.”).

298 Refer to § 5.17.4 (Pillage Prohibited).

299 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

300 GC art. 53 (“Any destruction by the Occupying Power of real or personal property belonging individually or 

collectively to private persons, or to the State, or to other public authorities, or to social or cooperative 

organizations, is prohibited, except where such destruction is rendered absolutely necessary by military 

operations.”).

301 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

302 GC COMMENTARY 302 (“Furthermore, it will be for the Occupying Power to judge the importance of such 

military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the 

proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the 

Occupying Power to circumvent the prohibition set forth in the Convention. The Occupying Power must therefore 

try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying 

authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage 

done.”).

303 Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).
807

private) where required for direct military use in military operations. In the case of private 

property, an Occupying Power, where possible, should requisition the property and offer 

compensation to the owner.304

11.18.2.3 Capture or Seizure and Vesting of Title in the Occupying Power. In the 

case of real (immovable) property that is captured or seized, the Occupying Power may use such

property for the duration of the occupation but does not take title to the property.305

Public property captured or seized from the enemy, as well as private property validly 

captured on the battlefield and abandoned property, is the property of the capturing State.

306

Valid capture or seizure of property requires both an intent to take such action and a 

physical act of capture or seizure. The mere presence within occupied territory of property that 

is subject to appropriation under international law does not operate to vest title thereto in the 

Occupying Power.

307

11.18.2.4 Seizure or Destruction of Submarine Cables Connecting an Occupied 

Territory With a Neutral Territory. Submarine cables connecting an occupied territory with a 

neutral territory shall not be seized or destroyed except in the case of absolute necessity. Such 

cables must likewise be restored and compensation fixed when peace is made.

308 

This rule applies only to activities on land and does not deal with seizure or destruction of 

cables in the open sea.309

11.18.3 Property Control Measures. Public and private property within occupied territory 

may be controlled by the Occupying Power to the degree necessary to prevent its use by or for 

 304 Refer to § 11.18.7 (Requisitions of Private Enemy Property).

305 Refer to § 11.18.5.1 (Public Real (Immovable) Property Susceptible of Direct Military Use); § 11.18.5.2 (Public 

Real (Immovable) Property That Is Essentially of a Non-Military Nature).

306 1956 FM 27-10 (Change No. 1 1976) ¶396 (“Public property captured or seized from the enemy, as well as 

private property validly captured on the battlefield and abandoned property, is property of the United States (see 

U.S. Const., Art. I, sec. 8, cl. 11), and failure to turn over such property to the proper authorities or disposal thereof 

for personal profit is a violation of Article 103 of the Uniform Code of Military Justice.”). Refer to § 5.17.3.2

(Ownership of Captured or Found Property on the Battlefield).

307 1956 FM 27-10 (Change No. 1 1976) ¶395 (“Valid capture or seizure of property requires both an intent to take 

such action and a physical act of capture or seizure. The mere presence within occupied territory of property which 

is subject to appropriation under international law does not operate to vest title thereto in the occupant.”).

308 HAGUE IV REG. art. 54 (“Submarine cables connecting an occupied territory with a neutral territory shall not be 

seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed 

when peace is made.”).

309 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF 1907

13 (1921) (“Mr. Louis Renault observes that this amendment has reference only to what takes place on land, without 

touching the question of seizure or destruction of submarine cables in the open sea. The President thanks him for 

having given the text an interpretation that leaves no room for doubt.”).
808

the benefit of hostile forces, or in a manner harmful to the Occupying Power.

310 For example, in 

the case of persons who have acted against the security of the Occupying Power, the Occupying 

Power may freeze their accounts to prevent such funds from being used against the interests of 

the Occupying Power.

311

Conservators may be appointed to manage the property of absent persons (including 

nationals of the United States and of friendly States) and of internees, property managed by such 

persons, and property of persons whose activities are deemed to be prejudicial to the Occupying 

Power. However, when the owners or managers of such property are again able to resume 

control of their property and the risk of its hostile use no longer exists, it must be returned to 

them.312

Measures of property control must not extend to confiscation of private property.

313 For 

example, if the Occupying Power controls a private business and earns a profit, the owner must 

be indemnified.314

However, the authority of the Occupying Power to impose such controls does not limit its 

power to seize or requisition property or take such other action with respect to it as may be 

authorized by other provisions of law.315

11.18.4 Determination Whether Property Is Public or Private. The rules for the treatment 

of enemy property may depend on whether the property is public or private.

For example, private property may not be confiscated, and there is an obligation to pay 

compensation for requisitions of private property.316 On the other hand, public property 

 310 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Property within occupied territory may be controlled by the 

occupant to the degree necessary to prevent its use by or for the benefit of the hostile forces or in a manner harmful 

to the occupant.”).

311 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“This control includes not only the steps mentioned 

above in connection with central banks and commercial banks but covers such things as the freezing of accounts 

where the owner of the funds in question has acted against the interests of the occupying power, control of large 

cash deposits, control over safe deposit boxes, and, of course, the removal of personnel held to be undesirable from 

the viewpoint of the occupant.”).

312 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Conservators may be appointed to manage the property of absent 

persons (including nationals of the United States and of friendly States) and of internees, property managed by such 

persons, and property of persons whose activities are deemed to be prejudicial to the occupant. However, when the 

owners or managers of such property are again able to resume control of their property and the risk of its hostile use 

no longer exists, it must be returned to them.”).

313 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

314 Refer to § 11.23.3 (Control of Business in Occupied Territory).

315 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Measures of property control must not extend to confiscation. 

However, the authority of the occupant to impose such controls does not limit its power to seize or requisition 

property or take such other action with respect to it as may be authorized by other provisions of law.”).

316 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory); § 11.18.7.3 (Prices 

and Compensation for Requisitioned Articles and Services).
809

generally may be seized or captured without any obligation to pay compensation.317

11.18.4.1 Beneficial Ownership Test. Under modern conditions, the distinction 

between public and private property is not always easy to draw. For the purpose of treatment of 

property under military occupation, it is often necessary to look beyond strict legal title and to 

ascertain the character of the property on the basis of the beneficial ownership thereof. Thus, for 

example, trust funds, pension funds, and bank deposits generated by private persons are not to be 

regarded as public property simply by reason of their being held by a State-owned bank.318

11.18.4.2 Property of Mixed Ownership. For the purpose of determining what 

type of control the Occupying Power may exercise over property (by way of confiscation, 

seizure, requisition, etc.), the most cogent evidence of public character is such a complete or 

partial assumption by the State of the economic risk involved in the holding and management of 

the property in question that the enemy State, rather than private individuals or corporations, 

would be subjected to a substantial portion of the loss were the property to be appropriated for 

the use of the Occupying Power.319 Should property that is ostensibly private be subjected to a 

large measure of governmental control and management, or perform functions that are 

essentially public, these facts would tend to indicate that the property should be regarded in 

practice as public.320 

If property that is appropriated by the Occupying Power is beneficially owned in part by 

the enemy State and in part by private interests, the occupation authorities should compensate the 

private owners to the extent of their interest. Such compensation should bear the same 

relationship to the compensation that would be paid if the property were entirely privately 

owned. The Occupying Power may take those measures it deems necessary to ensure that no 

portion of the compensation paid on account of private interests accrues to the enemy State.321

 317 Refer to § 11.18.5 (Treatment of Enemy Public Property).

318 1956 FM 27-10 (Change No. 1 1976) ¶394a (“Beneficial Ownership. Under modern conditions, the distinction 

between public and private property is not always easy to draw. For the purpose of treatment of property under 

belligerent occupation, it is often necessary to look beyond strict legal title and to ascertain the character of the 

property on the basis of the beneficial ownership thereof. Thus, for example, trust funds, pension funds, and bank 

deposits generated by private persons are not to be regarded as public property simply by reason of their being held 

by a State-owned bank.”).

319 1956 FM 27-10 (Change No. 1 1976) ¶394b (“Property of Mixed Ownership. For the purpose of determining 

what type of control the occupant may exercise over property (by way of confiscation, seizure, requisition, etc.), the 

most cogent evidence of public character is such a complete or partial assumption by the State of the economic risk 

involved in the holding and management of the property in question that the State, rather than private individuals or 

corporation, would be subjected to a substantial portion of the loss were the property to be appropriated for the use 

of the occupant.”).

320 1956 FM 27-10 (Change No. 1 1976) ¶394b (“Should property which is ostensibly private be subjected to a large 

measure of governmental control and management or perform functions which are essentially public, these facts 

would tend to indicate that the property should be regarded in practice as public.”).

321 1956 FM 27-10 (Change No. 1 1976) ¶394b (“If property which is appropriated by the occupant is beneficially 

owned in part by the State and in part by private interests, the occupation authorities should compensate the private 

owners to the extent of their interest. Such compensation should bear the same relationship to the full compensation 

which would be paid if the property were entirely privately owned as their interest bears to the total value of the 
810

11.18.4.3 Property of Unknown Ownership. If it is unknown whether certain 

property is public or private, it should be treated as public property until its ownership is 

ascertained.322

11.18.5 Treatment of Enemy Public Property. In general, an Occupying Power may

capture or seize the real (immovable) and personal (movable) property of the occupied State and 

use it for military operations or the administration of the occupied territory. No compensation 

needs to be paid to the occupied State for the use or taking of such property. 

11.18.5.1 Public Real (Immovable) Property Susceptible of Direct Military Use. 

Real property of the occupied State that is of direct military use, such as forts, arsenals, 

dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military 

facilities, may remain in the hands of the Occupying Power until the close of the hostilities, and 

may be destroyed or damaged by the Occupying Power, if it deems it necessary to military 

operations.323

11.18.5.2 Public Real (Immovable) Property That Is Essentially of a Non-Military 

Nature. The Occupying Power shall be regarded only as administrator and usufructuary of 

public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and 

situated in the occupied territory. It must safeguard the capital of these properties, and 

administer them in accordance with the rules of usufruct.324 This real (immovable) property that 

is essentially of a non-military nature may not be damaged or destroyed unless such destruction 

is rendered absolutely necessary by military operations.325

The term usufruct means literally “to use the fruit.”326 The Occupying Power may use 

 

property concerned. The occupant may take what measures it deems necessary to assure that no portion of the 

compensation paid on account of private interests accrues to the State.”).

322 1956 FM 27-10 (Change No. 1 1976) ¶394c (“Property of Unknown Ownership. If it is unknown whether certain 

property is public or private, it should be treated as public property until its ownership is ascertained.”).

323 1956 FM 27-10 (Change No. 1 1976) ¶401 (“Real property of a State which is of direct military use, such as 

forts, arsenals, dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military 

facilities, remains in the hands of the occupant until the close of the war, and may be destroyed or damaged, if 

deemed necessary to military operations.”).

324 HAGUE IV REG. art. 55 (“The occupying State shall be regarded only as administrator and usufructuary of public 

buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied 

country. It must safeguard the capital of these properties, and administer them in accordance with the rules of 

usufruct.”).

325 1956 FM 27-10 (Change No. 1 1976) ¶402 (“Real property of the enemy State which is essentially of a nonmilitary nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or 

destroyed unless such destruction is rendered absolutely necessary by military operations (see Art. 63, GC; par. 393 

herein).”). Refer to § 11.18.2 (Seizure or Destruction of Property During Occupation – Application of the Military 

Necessity Standard).

326 See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 183 (Oct. 23, 1962) (“The term 

‘usufruct’ means literally ‘to use the fruit.’ The occupant can therefore enjoy the benefits of public real property, 

but he cannot interfere with the substantive rights still possessed by the displaced sovereign.”); Brigadier General 

George B. Davis, Working Memoranda (Confidential for the United States Delegates): The Second Peace 

Conference (Paragraph 2 of Programme), The Rules of War on Land, 43 (1907) (“In the meaning which has been 

assigned to the term ‘usufruct’ in both the common and civil law, the usufructuary is entitled to the enjoyment of the 
811

and enjoy the benefits of public real (immovable) property belonging to an enemy State, but does 

not have the right of sale or unqualified use of such property. As administrator or usufructuary, 

the Occupying Power should not exercise its rights in such a wasteful and negligent manner as 

seriously to impair the property’s value.

327 

The Occupying Power may, however, lease or utilize public lands or buildings, sell the 

crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend 

beyond the conclusion of the war.328 

11.18.5.3 Public Personal (Movable) Property. An army of occupation may only 

take possession of cash, funds, and realizable securities that are strictly the property of an enemy 

State, depots of arms, means of transport, stores and supplies, and, generally, all personal 

(movable) property belonging to the State that may be used for military operations.329

Thus, all personal (movable) property belonging to an enemy State susceptible of military 

use may be taken possession of, and utilized for, the benefit of the Occupying Power. Under 

modern conditions of warfare, a large proportion of State property may be regarded as capable of 

being used for military purposes. However, personal (movable) property that is not susceptible 

of military use must be respected and may not be appropriated.330

11.18.6 Treatment of Enemy Private Property. Private property may not be 

confiscated.331

Private personal (movable) property susceptible to direct military use may be seized, with 

a receipt to be given to allow for compensation to be paid at the conclusion of the war.332

Other private property may be subject to requisition, with payment in cash given as soon 

 

revenue so long as he preserves the substance or capital of which he appropriates and uses the usufruct. In its 

application to the commanding general of occupied territory this means that, so long as he maintains the properties 

thus unimpaired, he may apply the usufructuary revenue to the necessary expenses of the military occupation.”).

327 1956 FM 27-10 (Change No. 1 1976) ¶402 (“The occupant does not have the right of sale or unqualified use of 

such property. As administrator or usufructuary he should not exercise his rights in such a wasteful, and negligent 

manner as seriously to impair its value.”).

328 1956 FM 27-10 (Change No. 1 1976) ¶402 (“He may, however, lease or utilize public lands or buildings, sell the 

crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the 

conclusion of the war.”).

329 HAGUE IV REG. art. 53 (“An army of occupation can only take possession of cash, funds, and realizable securities 

which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, 

all movable property belonging to the State which may be used for military operations.”).

330 1956 FM 27-10 (Change No. 1 1976) ¶404 (“All movable property belonging to the State susceptible of military 

use may be taken possession of and utilized for the benefit of the occupant’s government. Under modern conditions 

of warfare, a large proportion of State property may be regarded as capable of being used for military purposes. 

However, movable property which is not susceptible of military use must be respected and cannot be 

appropriated.”).

331 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

332 Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).
812

as possible.

333

Private property may be forfeited to the Occupying Power as a result of the valid 

imposition of penalties.334 For example, a regulation closing a road for security reasons could 

specify that, as a penalty, unauthorized private vehicles found on the road would be subject to 

forfeiture without any compensation.

335 

11.18.6.1 Prohibition on Confiscation of Private Property in Occupied Territory. 

Private property may not be confiscated.336 

The prohibition against confiscation of private property extends not only to outright 

taking in violation of the law of war, but also to any acts that, through the use of threats, 

intimidation, or pressure, or by actual exploitation of the power of the Occupying Power, 

permanently or temporarily deprive the owner of the use of such property without the owner’s 

consent, or without authority under international law.337 

The prohibition against confiscation of private property does not extend to takings by 

way of contribution, requisition, or the valid imposition of penalties.338

11.18.6.2 Seizure of Private Property Susceptible to Direct Military Use. All 

 333 Refer to § 11.18.7 (Requisitions of Private Enemy Property).

334 See Philip C. Jessup, A Belligerent Occupant’s Power over Property, 38 AJIL 457, 459 (1944) (“3) Seizure and 

confiscation. This case is not spelled out in the Hague Regulations but it is important. Private property of any kind 

may be forfeited as a penalty. For example, a military regulation may forbid civilian carts to cross a certain bridge 

under penalty of forfeiture of the cart and its contents and the draft animal. A regulation may forbid the sale of 

intoxicating liquors under penalty of forfeiture of all stocks on hand. Especially in agrarian communities of rather 

primitive economy, fines may be imposed in terms of farm produce, articles of native manufacture, or any other 

commodities. Property taken by the occupant in this way is acquired with a clear title and may be used in any way 

the occupant sees fit.”).

335 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 188 (“Private property may also have to be forfeited to an 

occupant as a penalty: fines for a great number of minor offenses may be lawfully exacted in terms of products or 

goods. For instance, vehicles found on closed roads may be confiscated, clothing over and above a stated maximum 

might well be seized, and so on. A lawful occupant could utilize all property thus acquired in any manner he saw fit, 

since he would have a clear title to the goods without having paid any compensation.”).

336 HAGUE IV REG. art. 46 (“Private property cannot be confiscated.”).

337 1956 FM 27-10 (Change No. 1 1976) ¶406b (“Prohibited Acts. The foregoing prohibition extends not only to 

outright taking in violation of the law of war but also to any acts which, through the use of threats, intimidation, or 

pressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of the 

use of his property without his consent or without authority under international law.”).

338 Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The 

Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 38 (1907) (“Article XVLI. ... 

Private property may be taken by way of contribution or requisition, in order to compel the enemy to bear his share 

of the burdens and hardships of war, but it can not be confiscated—that is, it can not be seized by way of 

punishment for a breach of allegiance, for no tie of allegiance exists between the inhabitants of the occupied territory 

and the invading enemy. It is not understood that in the operation of a penalty which may be imposed by a military 

commission or other tribunal with jurisdiction to try cases in occupied territory the private property of an individual 

may not be taken. It is rather a taking without compensation—a taking which is not in conformity to the laws of war 

which is here made the subject of the express prohibition.”).
813

appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the 

transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, 

generally, all kinds of ammunition of war, may be seized, even if they belong to private 

individuals, but must be restored and compensation fixed when peace is made.339

Private property susceptible of direct military use includes cables, telephone and 

telegraph facilities, radio, television, telecommunications and computer networks and equipment, 

motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft, 

airfields, aircraft, depots of arms (whether military or sporting), documents connected with the 

conflict, 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.340

If private property is seized on the grounds that is it susceptible to direct military use, a 

receipt should be given the owner, or a record made of the nature and quantity of the property 

and the name of the owner or person in possession of it, in order that restoration and 

compensation may be made at the conclusion of the war.

341

11.18.6.3 Private Real (Immovable) Property. Private real (immovable) property 

may under no circumstances be seized. It may, however, be requisitioned.342

11.18.6.4 Municipal, Religious, Charitable, and Cultural Property. The property 

of municipalities, that of institutions dedicated to religion, charity, and education, and the arts

and sciences, even when State property, shall be treated as private property. All seizure of, 

destruction of, or willful damage done to institutions of this character, historic monuments, 

works of art, and science, is forbidden, and should be made the subject of legal proceedings.343 

The reference to “property of municipalities” above has been interpreted as not granting 

 339 HAGUE IV REG. art. 53 (“All appliances, whether on land, at sea, or in the air, adapted for the transmission of 

news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, 

generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be 

restored and compensation fixed when peace is made.”).

340 1956 FM 27-10 (Change No. 1 1976) ¶410a (“Seizure. The rule stated in the foregoing paragraph includes 

everything susceptible of direct military use, such as cables, telephone and telegraph plants, radio, television, and 

telecommunications equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and 

other watercraft, airfields, aircraft, depots of arms, whether military or sporting, documents connected with the war, 

all varieties of military equipment, including that in the hands of manufacturers, component parts of or material 

suitable only for use in the foregoing, and in general all kinds of war material.”).

341 See 1956 FM 27-10 (Change No. 1 1976) ¶409 (“If private property is seized in conformity with the preceding 

paragraph, a receipt therefor should be given the owner or a record made of the nature and quantity of the property 

and the name of the owner or person in possession in order that restoration and compensation may be made at the 

conclusion of the war.”).

342 Refer to § 11.18.7 (Requisitions of Private Enemy Property).

343 HAGUE IV REG. art. 56 (“The property of municipalities, that of institutions dedicated to religion, charity and 

education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, 

destruction or willful damage done to institutions of this character, historic monuments, works of art, and science, is 

forbidden, and should be made the subject of legal proceedings.”).
814

preferential treatment for all types of property owned by municipalities, but as referring to 

communal property, such as poor houses, asylums, park buildings, museums, and public records, 

whether owned by a parish, a town, or a province.344

Just as private property may be subject to requisitions and contribution and certain other 

purposes during a military occupation, the types of property referred to in Article 56 of the 

Hague IV Regulations may also be subject to such demands.

345 For example, such property may 

be requisitioned in case of necessity for quartering the forces and the sick and wounded, storage 

of supplies and material, housing of vehicles and equipment, and generally as prescribed for 

private property.346 Such property must, however, be secured against all avoidable injury, even 

when located in fortified places that are subject to seizure or bombardment.347

Additional rules apply to cultural property.348

In the practice of the United States, religious buildings, shrines, and consecrated places 

employed for worship are used only for aid stations, for medical installations, or for the housing 

of wounded personnel awaiting evacuation, provided in each case that a situation of emergency 

requires such use.349

11.18.7 Requisitions of Private Enemy Property. Although private enemy property may 

not be confiscated, it may be subject to requisition, which is the method of taking private enemy 

 344 William M. Franklin, Municipal Property Under Belligerent Occupation, 28 AJIL 383, 395-96 (1944) (“3. It was 

not the intention of the drafters of the article to grant the highly preferential treatment of Article 56 to all types of 

property owned by municipalities, simply on the basis of their ownership. Military installations maintained by 

municipalities and all other types of property owned by municipalities which would be susceptible of direct military 

use and were not dedicated to humanitarian, educational, scientific or artistic purposes do not enjoy the protection of 

Article 56. 4. For this reason it was never thought necessary to define the word ‘communes’ in terms of any specific 

unit of local government. The expression was intended to include communal property, such as poor houses, 

asylums, park buildings, museums and public records, whether owned by a parish, a town or a province.”).

345 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 192 (“It has to be remembered, in this connection, that 

municipal property is subject to requisitions and contributions.... While an occupant is prevented from confiscating 

the various kinds of property listed in Article 56, the rules of international law do not prevent him, on the other 

hand, from utilizing these properties for certain purposes during military occupation. He is entitled to lodge troops, 

animals, stores, supplies, and the like in buildings belonging to exempt or immune institutions, and may convert 

such buildings into hospitals for the care of this wounded. In other words, municipal and other exempt property may 

be used by the occupying forces in the same manner and to the same extent as in the case of private property.”).

346 1956 FM 27-10 (Change No. 1 1976) ¶405 (“b. Use of Such Premises. The property included in the foregoing 

rule may be requisitioned in case of necessity for quartering the troops and the sick and wounded, storage of 

supplies and material, housing of vehicles and equipment, and generally as prescribed for private property. Such 

property must, however, be secured against all avoidable injury, even when located in fortified places which are 

subject to seizure or bombardment.”).

347 Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).

348 Refer to § 11.19 (Protection of Cultural Property During Occupation).

349 1956 FM 27-10 (Change No. 1 1976) ¶405c (“Religious Buildings, Shrines, and Consecrated Places. In the 

practice of the United States, religious buildings, shrines, and consecrated places employed for worship are used 

only for aid stations, medical installations, or for the housing of wounded personnel awaiting evacuation, provided 

in each case that a situation of emergency requires such use.”).
815

real (immovable) and personal (movable) property for the needs of the army of occupation.350

Requisitions in kind and services shall not be demanded from municipalities or 

inhabitants except for the needs of the army of occupation. They shall be in proportion to the 

resources of the country, and of such a nature as not to involve the inhabitants in the obligation 

of taking part in military operations against their own country.351

11.18.7.1 Method of Requisitioning. Requisitions must be made under the 

authority of the commander in the locality.352 No prescribed method is fixed, but if practicable,

requisitions should be accomplished through the local authorities by systematic collection in 

bulk. They may be made direct by detachments if local authorities fail or if circumstances 

preclude resort to such authorities.353

11.18.7.2 Types of Property That May Be Requisitioned. Goods and services that 

are necessary for the maintenance of the occupation army (e.g., fuel, food, clothing, building 

materials, machinery, tools, vehicles, furnishings for quarters) may be requisitioned. Billeting of 

forces in occupied areas is also authorized.354

Special additional rules apply to the requisition of foodstuffs, articles necessary to 

support life, or medical supplies available in the occupied territory.

355 Similarly, additional rules 

apply to the requisition of civilian hospitals and their supplies.356

11.18.7.3 Prices and Compensation for Requisitioned Articles and Services. 

Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given,

 350 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 181 (Oct. 23, 1962) (“Requisition is the 

method of taking private enemy movable and immovable property for the needs of the army of occupation.”); VON 

GLAHN, THE OCCUPATION OF ENEMY TERRITORY 165 (“Requisition is the term used for the demand of a supply of 

all kinds of articles needed by an army such as foodstuffs, clothing, horses, transportation and means of 

transportation, and buildings.”).

351 HAGUE IV REG. art. 52 (“Requisitions in kind and services shall not be demanded from municipalities or 

inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the 

country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations 

against their own country.”).

352 HAGUE IV REG. art. 52 (“Such requisitions and services shall only be demanded on the authority of the 

commander in the locality occupied.”).

353 1956 FM 27-10 (Change No. 1 1976) ¶415 (“Requisitions must be made under the authority of the commander in 

the locality. No prescribed method is fixed, but if practicable requisitions should be accomplished through the local 

authorities by systematic collection in bulk. They may be made direct by detachments if local authorities fail or if 

circumstances preclude resort to such authorities.”).

354 1956 FM 27-10 (Change No. 1 1976) ¶412b (“What May Be Requisitioned. Practically everything may be 

requisitioned under this article that is necessary for the maintenance of the army, such as fuel, food, clothing, 

building materials, machinery, tools, vehicles, furnishings for quarters, etc. Billeting of troops in occupied areas is 

also authorized.”).

355 Refer to § 11.14.2 (Limitation on Requisition of Food and Medical Supplies).

356 Refer to § 11.15.5 (Requisition of Civilian Hospitals).
816

and the payment of the amount due shall be made as soon as possible.

357

The prices of articles and services requisitioned will be fixed by agreement if possible, 

otherwise by military authority.358

11.18.7.4 Method of Enforcing Requisition. Coercive measures may be used to 

enforce requisitions, but will be limited to the amount and kind necessary to secure the articles 

requisitioned.359

11.19 PROTECTION OF CULTURAL PROPERTY DURING OCCUPATION

The following rules address the protection of cultural property during occupation. The 

general rules for the protection of cultural property during hostilities also apply during 

occupation.360 For example, military commanders have an obligation to take reasonable 

measures to prevent or stop any form of theft, pillage, or misappropriation of, and any acts of 

vandalism directed against, cultural property.

361

11.19.1 Obligation With Respect to the Safeguarding and Preservation of Cultural 

Property. Any Party to the 1954 Hague Cultural Property Convention in occupation of the whole 

or part of the territory of another Party to the 1954 Hague Cultural Property Convention shall as 

far as possible support the competent national authorities of the occupied country in safeguarding 

and preserving its cultural property.362

Should it prove necessary to take measures to preserve cultural property situated in 

occupied territory and damaged by military operations, and should the competent national 

authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in 

close co-operation with such authorities, take the most necessary measures of preservation.363

11.19.2 Respect for Cultural Property by Members of a Legitimate Resistance 

 357 HAGUE IV REG. art. 52 (“Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be 

given and the payment of the amount due shall be made as soon as possible.”).

358 1956 FM 27-10 (Change No. 1 1976) ¶416 (“The prices of articles and services requisitioned will be fixed by 

agreement if possible, otherwise by military authority. Receipts should be taken up and compensation paid 

promptly.”).

359 1956 FM 27-10 (Change No. 1 1976) ¶417 (“Coercive measures will be limited to the amount and kind necessary 

to secure the articles requisitioned.”).

360 Refer to § 5.18 (Protection of Cultural Property During Hostilities).

361 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism 

Against, Cultural Property).

362 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(1) (“Any High Contracting Party in occupation of the 

whole or part of the territory of another High Contracting Party shall as far as possible support the competent 

national authorities of the occupied country in safeguarding and preserving its cultural property.”).

363 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(2) (“Should it prove necessary to take measures to 

preserve cultural property situated in occupied territory and damaged by military operations, and should the 

competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in 

close co-operation with such authorities, take the most necessary measures of preservation.”).
817

Movement. Any Party to 1954 Hague Cultural Property Convention whose government is 

considered by members of a resistance movement as their legitimate government shall, if 

possible, draw the resistance movement members’ attention to the obligation to comply with 

those provisions of the 1954 Hague Cultural Property Convention dealing with respect for 

cultural property.364

11.19.3 Special Representative for Cultural Property in Occupied Territory and 

Application for Special Protection. An Occupying Power shall appoint a special representative 

for cultural property situated in that territory.365

The Occupying Power is competent to submit an application for immovable cultural 

property to be entered into the International Register of Cultural Property Under Special 

Protection.366

11.19.4 Transfers of Cultural Property From and Within Occupied Territory. The 

requisition of movable cultural property situated in the territory of another Party to the 1954 

Hague Cultural Property Convention is prohibited.

367

If necessary under its obligation to take measures to preserve damaged cultural property, 

the Occupying Power may arrange for the transport of cultural property to a refuge within 

occupied territory in accordance with other provisions of the 1954 Hague Cultural Property 

Convention.

368 Whenever a High Contracting Party occupying territory of another High 

Contracting Party transfers cultural property to a refuge situated elsewhere in that territory, 

without being able to follow the procedure for the transport of cultural property under special 

protection provided for in Article 17 of the Regulations, the transfer in question shall not be 

regarded as misappropriation within the meaning of Article 4 of the Convention, provided that 

the Commissioner-General for Cultural Property certifies in writing, after having consulted the 

 364 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(3) (“Any High Contracting Party whose government is 

considered their legitimate government by members of a resistance movement, shall, if possible, draw their attention 

to the obligation to comply with those provisions of the Conventions dealing with respect for cultural property.”).

365 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as 

any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It 

shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it 

shall appoint a special representative for cultural property situated in that territory;”).

366 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13 (“1. Any 

High Contracting Party may submit to the Director General of the United Nations Educational, Scientific and 

Cultural Organization an application for the entry in the Register of certain refuges, centres containing monuments 

or other immovable cultural property situated within its territory. Such application shall contain a description of the 

location of such property and shall certify that the property complies with the provisions of Article 8 of the 

Convention. 2. ln the event of occupation, the Occupying Power shall be competent to make such application.”). 

Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

367 Refer to § 5.18.6.2 (Prohibition Against Requisition of Movable Cultural Property Situated in the Territory of 

Another Party to the 1954 Hague Cultural Property Convention).

368 Refer to § 5.18.9.1 (Transport Under Special Protection).
818

usual custodians, that such transfer was rendered necessary by circumstances.369

11.20 LABOR OF PROTECTED PERSONS IN OCCUPIED TERRITORY

11.20.1 Types of Labor That May Not Be Compelled. The Occupying Power may not 

compel protected persons to perform certain types of labor.

11.20.1.1 Prohibition on Compulsory Service in an Occupying Power’s Armed 

Forces. The Occupying Power may not compel protected persons to serve in its armed or 

auxiliary forces. No pressure or propaganda that aims at securing voluntary enlistment is 

permitted.

370

Compelling protected persons to serve in its armed or auxiliary forces would in most 

cases also violate the prohibition against compelling inhabitants of occupied territory to swear 

allegiance to the hostile State.

371 Compelling a protected person to serve in the forces of a 

hostile Power is a grave breach of the GC.372

11.20.1.2 Prohibition Against Compelling Protected Persons as Guards for 

Compulsory Work Installations. The Occupying Power may not compel protected persons to 

employ forcible means to ensure the security of the installations where protected persons are 

performing compulsory labor.373 

11.20.1.3 Prohibition Against Requisition Labor Such That Workers Are 

Mobilized in a Military or Semi-Military Organization. In no case shall requisition of labor lead 

to a mobilization of workers in an organization of a military or semi-military character.374

11.20.1.4 Prohibition Against Forcing Inhabitants to Provide Information About 

the Opposing Army or Its Means of Defense. A belligerent is forbidden to force the inhabitants 

of territory occupied by it to furnish information about the army of the other belligerent, or about 

its means of defense.375 This obligation also results from the general prohibition against use of 

 369 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19 (“Whenever 

a High Contracting Party occupying territory of another High Contracting Party transfers cultural property to a 

refuge situated elsewhere in that territory, without being able to follow the procedure provided for in Article 17 of 

the Regulations, the transfer in question shall not be regarded as misappropriation within the meaning of Article 4 of 

the Convention, provided that the Commissioner-General for Cultural Property certifies in writing, after having 

consulted the usual custodians, that such transfer was rendered necessary by circumstances.”).

370 GC art. 51 (“The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. 

No pressure or propaganda which aims at securing voluntary enlistment is permitted.”).

371 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the 

Hostile State).

372 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

373 GC art. 51 (“The Occupying Power may not compel protected persons to employ forcible means to ensure the 

security of the installations where they are performing compulsory labour.”).

374 GC art. 51 (“In no case shall requisition of labour lead to a mobilization of workers in an organization of a 

military or semi-military character.”).

375 HAGUE IV REG. art. 44 (“A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish 

information about the army of the other belligerent, or about its means of defence.”).
819

physical or moral coercion against protected persons.376

11.20.1.5 Prohibition Against Other Work That Would Involve Protected Persons 

in the Obligation of Taking Part in Military Operations. Protected persons may not be 

compelled to undertake any work that would involve them in the obligation of taking part in 

military operations.377 This rule is formulated more broadly than the general rule against 

compelling a national to take part in operations against his or her own country378 because it 

prohibits compulsory service in any military operation.

379

The purpose of this rule, at least in part, is to ensure that civilians in occupied territory 

are not required to engage in activities that would forfeit their protections as civilians under the 

law of war.380

The prohibition against forcing the inhabitants of an occupied territory to take part in 

military operations against their own country precludes requisitioning their services in work 

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.381

 376 GC COMMENTARY 220 (“Furthermore, coercion is forbidden for any purpose or motive whatever. The authors of 

the Convention had mainly in mind coercion aimed at obtaining information, work or support for an ideological or 

political idea. The scope of the text is more general than that of Article 44 of the Hague Regulations of 1907, under 

which ‘a belligerent is forbidden to force the inhabitants of a territory occupied by it to furnish information about the 

army of the other belligerent, or about its means of defence’; Article 31 prohibits coercion for any purpose or reason 

and the obtaining of information is only given as an example. Thus, the custom, hitherto accepted in practice but 

disputed in theory, that an invasion army may force the inhabitants of an occupied territory to serve as ‘guides’ is 

now forbidden.”). Refer to § 10.5.3.1 (No Physical or Moral Coercion).

377 GC art. 51 (“Protected persons may not be compelled to undertake any work which would involve them in the 

obligation of taking part in military operations.”). See also HAGUE IV REG. art. 52 (“Requisitions in kind and 

services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. 

They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in 

the obligation of taking part in military operations against their own country.”).

378 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed 

Against Their Own Country).

379 GC COMMENTARY 296-97 (“The prohibition in this sentence is even more general than that contained in Article 

52 of the Hague Regulations; for it does not only embrace work involving the participation of the inhabitants in 

‘military operations against their own country’, but refers in a general way to any work ‘which would involve them 

in the obligation of taking part in military operations’. The importance of the distinction will be realised if the mind 

is cast back to cases when the occupying authorities have tried to circumvent the law of war by pretending that they 

are no longer engaged in military operations against the home country of the persons whose services they are 

requisitioning.”).

380 GC COMMENTARY 297 (“One point must not be forgotten: the Fourth Convention applies to civilians and 

civilians are by definition outside the fighting. Any action on the part of the Occupying Power which had the effect 

of involving them, directly or indirectly, in the fighting and so preventing them from benefiting by special protection 

under the Convention must be regarded as unlawful. The application of this clause depends very largely on the good 

faith of the occupant, who must judge in each individual case, with a full sense of his responsibility in the matter, 

whether or not the work demanded is compatible with the conditions here laid down.”).

381 1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part in 

military operations against their own country precludes requisitioning their services upon works directly promoting 
820

11.20.2 Types of Work That May Be Compelled. The Occupying Power may not compel 

protected persons to work unless they are over eighteen years of age, and then only on work that

is necessary for: (1) the needs of the army of occupation; (2) the public utility services; or (3) 

the feeding, sheltering, clothing, transportation, or health of the population of the occupied 

country.382

Thus, the Occupying Power may compel protected persons to engage in these three types 

of work, provided that such work is consistent with the other prohibitions against employing 

protected persons.383 For example, even if it is permitted to compel civilian engineers in 

occupied territory to provide information about the telecommunications system of an occupied 

country in order to facilitate restoration of service, they may not be required to provide such 

information where it will be used to locate and attack the armed forces of the occupied territory. 

11.20.2.1 Examples of Services That May Be Requisitioned From Inhabitants. 

The services that may be obtained from inhabitants by requisition include those of professionals, 

such as engineers, physicians, and nurses; and of artisans and laborers, such as clerks, carpenters, 

butchers, bakers, and truck drivers. The officials and employees of: 

• railways, trucking companies, airlines, canals, and river or coastal steamship companies; 

• cable, telegraph, telephone, radio, postal, and similar services; 

• gas, electric, and water works; and 

• sanitary authorities;

whether employed by the State or private companies, may be requisitioned to perform their 

duties only so long as the duties required do not directly concern the operations of war against 

their own country.384

The Occupying Power may also requisition labor to restore the general condition of the 

public works to that of peace, including the repair of roads, bridges, railways, and 

telecommunication networks, and to perform services on behalf of the local population, such as 

 

the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportation 

of supplies or ammunition in the zone of operations.”).

382 GC art. 51 (“The Occupying Power may not compel protected persons to work unless they are over eighteen 

years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the 

public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the 

occupied country.”).

383 Refer to § 11.20.1 (Types of Labor That May Not Be Compelled).

384 1956 FM 27-10 (Change No. 1 1976) ¶419 (“The services which may be obtained from inhabitants by requisition 

include those of professional men, such as engineers, physicians and nurses and of artisans and laborers, such as 

clerks, carpenters, butchers, bakers, and truck drivers. The officials and employees of railways, trucklines, airlines, 

canals, river or coastwise steamship companies, telegraph, telephone, radio, postal and similar services, gas, electric, 

and water works, and sanitary authorities, whether employed by the State or private companies, may be 

requisitioned to perform their professional duties only so long as the duties required do not directly concern the 

operations of war against their own country.”).
821

the care of the wounded and sick, and the burial of the dead.385

In addition, inhabitants over eighteen years of age may be compelled to perform work 

necessary to meet the maintenance needs of the occupation forces (as opposed to its strategic or 

tactical needs), such as providing telephone, water, or electricity services to the facilities of the 

occupation army from which the occupied territory is administered, or providing support to 

prisons, police stations, and other facilities necessary for the maintenance of order among the 

civilian population.386

11.20.2.2 Requisition of Police and Other Services Essential to Good Order. In 

general, police, firefighters, prison guards, and others who provide services essential to good 

order and security in occupied territory may be compelled by an Occupying Power to continue to 

provide those services.387 Such a requirement is consistent with the Occupying Power’s 

obligation to maintain public order in occupied territory.388

These officials may not be required to participate in military operations or other measures 

aimed at countering belligerent acts against the Occupying Power that are performed by 

privileged combatants under the law of war.389 For example, civilian police forces in occupied 

territory may not be compelled to provide security for an occupying force against attacks in 

compliance with the law of war launched by lawful combatants, including resistance fighters 

who, if captured, would be entitled to POW status under GPW Article 4. 

On the other hand, such police forces may be required to continue to perform their 

normal policing functions with respect to actual or threatened criminal acts, even where the 

victim of such acts is the Occupying Power.

390 Similarly, civilian firefighters may be required to 

 385 1956 FM 27-10 (Change No. 1 1976) ¶419 (“The occupant may also requisition labor to restore the general 

condition of the public works to that of peace, including the repair of roads, bridges, and railways, and to perform 

services on behalf of the local population, such as the care of the wounded and sick and the burial of the dead.”).

386 GC COMMENTARY 294 (“The wording ‘work which is necessary for the needs of the army of occupation’ is very 

comprehensive and its interpretation is open to discussion. It will be enough to note here that the clause covers a 

wide variety of services—those connected with billeting and the provision of fodder, transport services, the repairing 

of roads, bridges, ports and railways and laying telephone and telegraph lines. On the other hand it is generally 

agreed that the inhabitants of the occupied territory cannot be requisitioned for such work as the construction of 

fortifications, trenches or aerial bases. It is the maintenance needs of the army of occupation and not its strategic or 

tactical requirements which are referred to here. The distinction is essential and should be emphasized. It is 

confirmed by a provision, to be examined further on, laying down that the Occupying Power cannot compel 

protected persons to do work which would involve their participation in military operations.”).

387 See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 68 (“[I]n fact, all able-bodied native inhabitants may 

be called upon to perform police duties, to assist the regular native police in the maintenance of public order, to help 

in fire-fighting organizations, or to perform any other duty for the public good.”).

388 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

389 Refer to § 11.20.1.5 (Prohibition Against Other Work That Would Involve Protected Persons in the Obligation of

Taking Part in Military Operations).

390 See GC COMMENTARY 307 (“The reference to Article 51 relates not only to the list of different types of work, but 

also to the conditions and safeguards contained in that Article, in particular the prohibition on the use of compulsion 

to make protected persons take part in military operations. This is particularly important in the case of police 

officers, who cannot under any circumstances be required to participate in measures aimed at opposing legitimate 

belligerent acts, whether committed by armed forces hostile to the Occupying Power, by corps of volunteers or by 
822

extinguish fires endangering the Occupying Power’s military property that result from attacks by 

unprivileged combatants.

11.20.3 Working Conditions for Laborers Performing Requisitioned Work. 

Requisitioned work shall be carried out only in the occupied territory where the persons whose 

services have been requisitioned are resident, and such persons shall, so far as possible, be kept 

in their usual places of employment.391

Workers shall be paid a fair wage, and the work shall be proportionate to their physical 

and intellectual capacities.392 

The legislation in force in the occupied country concerning working conditions, and 

safeguards as regards, in particular, such matters as wages, hours of work, equipment, 

preliminary training, and compensation for occupational accidents and diseases, shall be 

applicable to the protected persons assigned to the work.393

11.20.4 Voluntary Work Not Prohibited by the GC. Although the GC prohibits protected 

persons from being compelled to provide certain types of work related to military operations, 

there is no prohibition in the law of war to such persons being employed voluntarily and for pay 

in such work.

394 For example, there is no law of war prohibition against civilian firefighters

putting out fires endangering civilian property resulting from attacks by lawful combatants 

against the Occupying Power’s military property.

However, no pressure or propaganda that aims at securing voluntary enlistment in the 

armed or auxiliary forces of the Occupying Power is permitted.

395 

In addition, certain voluntary humanitarian work is recognized and protected by the 

 

organized resistance movements. On the other hand it would certainly appear that the Occupying Power is entitled 

to require the local police to take part in tracing and punishing hostile acts committed under circumstances other 

than those laid down in Article 4 of the Third Geneva Convention. Such acts may in fact be regarded as offences 

under common law, whatever ideas may have inspired their authors, and the occupation authorities, being 

responsible for maintaining law and order, are within their rights in claiming the co-operation of the police.”).

391 GC art. 51 (“The work shall be carried out only in the occupied territory where the person whose services have 

been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment.”).

392 GC art. 51 (“Workers shall be paid a fair wage and the work shall be proportionate to their physical and 

intellectual capacities.”).

393 GC art. 51 (“The legislation in force in the occupied country concerning working conditions, and safeguards as 

regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for 

occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in 

this Article.”).

394 1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part in 

military operations against their own country precludes requisitioning their services upon works directly promoting 

the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportation 

of supplies or ammunition in the zone of operations. There is no objection in law to their being employed 

voluntarily and for pay in such work.”).

395 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).
823

GWS.396

11.20.5 General Protections Applicable to Workers in Occupied Territory. 

11.20.5.1 Access to Protecting Power. No contract, agreement, or regulation shall 

impair the right of any worker, whether voluntary or not and wherever he or she may be, to apply 

to the representatives of the Protecting Power in order to request the Protecting Power’s 

intervention.

397 

For example, it would be prohibited to forbid workers who are protected persons from 

applying to the Protecting Power. It would also be prohibited to require any protected persons 

who are workers, as a condition of work, to renounce their right to apply for assistance to the 

Protecting Power concerning work conditions or any other matter.398

11.20.5.2 No Use of Measures to Create Unemployment to Induce Work for the 

Occupying Power. All measures aiming at creating unemployment or at restricting the 

opportunities offered to workers in an occupied territory, in order to induce them to work for the 

Occupying Power, are prohibited.

399

Measures intended to reduce unemployment would not be prohibited by this rule.

400

11.21 JUDGES AND OTHER PUBLIC OFFICIALS

11.21.1 Continued Service of Judges and Other Public Officials. The Occupying Power

may not alter the status of public officials or judges in the occupied territories, or in any way 

apply sanctions to or take any measures of coercion or discrimination against them, should they 

abstain from fulfilling their functions for reasons of conscience.401 

Public officials may be understood to include officials at both the national and local 

levels who fulfill public duties.402

 396 Refer to § 7.4.5 (Collection and Care of the Wounded, Sick, and Shipwrecked by Civilians).

397 GC art. 52 (“No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not 

and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s 

intervention.”).

398 Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as the 

ICRC).

399 GC art. 52 (“All measures aiming at creating unemployment or at restricting the opportunities offered to workers 

in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.”).

400 For example, Coalition Provisional Authority Order No. 39, Foreign Investment, preamble (Sept. 19, 2003) 

(“Determined to improve the conditions of life, technical skills, and opportunities for all Iraqis and to fight 

unemployment with its associated deleterious effect on public security,”).

401 GC art. 54 (“The Occupying Power may not alter the status of public officials or judges in the occupied 

territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should 

they abstain from fulfilling their function for reasons of conscience.”).

402 GC COMMENTARY 304 (“[T]he term public official generally designates people in State or local government 

service, who fulfill public duties.”).
824

This prohibition does not prejudice the application of the second paragraph of Article 51 

of the GC.403 Thus, a public official may be compelled to work to meet the needs of the army of 

occupation or for the public utility services, such as water, electricity, or sanitation.404 Similarly, 

a public official may be compelled to provide certain police services.405

This prohibition does not affect the right of the Occupying Power to remove public 

officials from their posts.406 For example, the Occupying Power may remove the political 

leadership and other political agents from their posts to prevent them from undermining the 

Occupying Power’s administration.407 

11.21.2 Oath of Public Officials. An Occupying Power may not require the inhabitants 

of occupied territory, including officials, to swear allegiance to it.408 However, the Occupying 

Power may require such officials as are continued in their offices to take an oath to perform their 

duties conscientiously and not to act to its prejudice.409 Any official who declines to take the 

oath may be removed; but, regardless of whether the official takes the oath, the official is 

required to obey the legitimate orders of the Occupying Power.

410

11.21.3 Salaries of Public Officials. The salaries of civil officials of the hostile 

government who remain in the occupied territory and continue the work of their offices, 

especially those who can properly continue it under the circumstances arising out of the war –

such as judges, administrative or police officers, and officers of city or communal governments –

are paid from the public revenues of the occupied territory, until the military government has 

 403 GC art. 54 (“This prohibition does not prejudice the application of the second paragraph of Article 51.”).

404 Refer to § 11.20.2 (Types of Work That May Be Compelled).

405 Refer to § 11.20.2.2 (Requisition of Police and Other Services Essential to Good Order).

406 GC art. 54 (“It does not affect the right of the Occupying Power to remove public officials from their posts.”).

407 GC COMMENTARY 308 (“The provision refers primarily to government officials and other political agents who 

are generally removed from their posts by the occupation authorities.”). For example, Coalition Provisional 

Authority Order No. 1, De-Ba`athification of Iraqi Society, §1(1) (May 16, 2003) (“On April 16, 2003 the Coalition 

Provisional Authority disestablished the Ba`ath Party of Iraq. This order implements the declaration by eliminating 

the party’s structures and removing its leadership from positions of authority and responsibility in Iraqi society.”).

408 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the 

Hostile State).

409 1956 FM 27-10 (Change No. 1 1976) ¶423 (“The occupant may require such officials as are continued in their 

offices to take an oath to perform their duties conscientiously and not to act to its prejudice. Every such official who 

declines to take such oath may be removed; but, whether he does so or not, he owes strict obedience to the occupant 

as long as he remains in office.”). For example, Military Government, Germany, Supreme Commander’s Area of 

Control, Law No. 2, German Courts, art. V, reprinted as Appendix 9 in VON GLAHN, THE OCCUPATION OF ENEMY 

TERRITORY 305, 306 (“QUALIFICATIONS OF JUDGES, PROSECUTORS, NOTARIES, AND LAWYERS No person shall be 

qualified to act as a of judge, prosecutor, notary or lawyer, until he shall have taken an oath in the following form: 

Oath ‘I swear by almighty God that I will at all times apply and administer the law without fear or favour and with 

justice and equity to all persons of whatever creed, race, color or political opinion they may be, that I will obey the 

laws of Germany, and all enactments of the Military Government, in spirit as well as in letter, and will constantly 

endeavour to establish equal justice under the law for all persons. So help me God.’”).

410 Refer to § 11.7.1 (Inhabitants’ Obedience to the Occupying Power).
825

reason wholly or partially to dispense with their services.411

Based on consistent practice, salaries or incomes connected with purely honorary titles 

would be suspended.412 Similarly, the Occupying Power need not continue to pay salaries that 

are rewards for loyalty to the prior regime, and may reform the pay system of public servants to 

increase transparency and fairness, as well as to create incentives for meritorious service.413

11.22 PUBLIC FINANCES AND TAXES

As a result of assuming the functions of government of the occupied territory, the 

financial administration of the occupied territory passes into the hands of the Occupying Power.

During the occupation, the fiscal laws of the enemy State remain in effect, but may be changed

or suspended by the Occupying Power under certain circumstances, as discussed below. 

11.22.1 Taxes. If, in the occupied territory, the Occupying Power collects the taxes, 

dues, and tolls imposed for the benefit of the State, it shall do so, as far as is possible, in 

accordance with the rules of assessment and incidence in force, and shall in consequence be 

bound to defray the expenses of the administration of the occupied territory to the same extent as 

the legitimate Government was so bound.414

11.22.1.1 Supervision of Taxes Collected by Local Authorities. The words “for 

the benefit of the State” were inserted in Article 48 of the Hague IV Regulations to exclude local 

taxes, dues, and tolls collected by local authorities for local purposes.

415 The Occupying Power

 411 1956 FM 27-10 (Change No. 1 1976) ¶424 (“The salaries of civil officials of the hostile government who remain 

in the occupied territory and continue the work of their offices, especially those who can properly continue it under 

the circumstances arising out of the war – such as judges, administrative or police officers, officers of city or 

communal governments – are paid from the public revenues of the occupied territory, until the military government 

has reason wholly or partially to dispense with their services.”). For example, Coalition Provisional Authority 

Regulation No. 2, Development Fund for Iraq, §6(3) (Jun. 15, 2003) (“Purposes. Sums may be disbursed from the 

Fund to meet the humanitarian needs of the Iraqi people and for the economic reconstruction and repair of Iraq’s 

infrastructure; for the continued disarmament of Iraq; for the costs of Iraq’s civilian administration; and for other 

purposes the Administrator determines to be for the benefit of the people of Iraq.”).

412 1956 FM 27-10 (Change No. 1 1976) ¶424 (“Salaries or incomes connected with purely honorary titles are 

always suspended.”).

413 For example, Coalition Provisional Authority Order No. 30, Reform of Salaries and Employment Conditions of 

State Employees, preamble (Sept. 8, 2003) (“Understanding that the salaries of public workers under the former 

regime were paid through a complicated system largely composed of incentive pay that rewarded loyalty to the 

former regime over meritorious service, ... Noting that salary and conditions of employment reform is essential to 

guarantee fairness within the public system to ensure that state employees receive appropriate compensation for their 

efforts, but also to provide incentives for meritorious service or sanctions for failure to perform appropriately,”).

414 HAGUE IV REG. art. 48 (“If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for 

the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence 

in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to 

the same extent as the legitimate Government was so bound.”).

415 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 185 (“Taxes raised by local authorities for local 

purposes may not be diverted by the occupant from the purpose for which they were raised although the occupant 

may supervise their collection. It would seem that state taxes collected by local bodies and not used for local 

purposes but transmitted to the state treasury are taxes ‘imposed for the benefit of the state.’”). See also SPAIGHT,

WAR RIGHTS ON LAND 378 (“The words ‘imposed for the benefit of the State’ in Article XLVIII are intended to 
826

may supervise the expenditure of such revenue and prevent its hostile use.416 

11.22.1.2 Changes in Taxes or New Taxes. The Occupying Power shall collect 

taxes, as far as is possible, in accordance with the rules of assessment and incidence in force. 

This is an example of the general rule that the Occupying Power shall respect the laws in force in 

the occupied territory unless absolutely prevented.417 Modifications to the tax laws may be 

justified by practical considerations and considerations of public order and safety.

If, due to the flight or unwillingness of local officials, it is impracticable to follow the 

rules of incidence and assessment in force, then the total amount of taxes to be paid may be 

allotted among the districts, towns, etc., and the local authorities may be required to collect it.418

The Occupying Power may suspend the tax laws of the occupied territory.419 Similarly, 

the Occupying Power may also reduce the rate of taxes under the existing tax laws. 

Unless required to do so by considerations of public order and safety, the Occupying 

Power must not create new taxes.420 Additional revenue may be raised in some other form, such 

 

exclude provincial and parochial taxes, or ‘rates’ as they are called in England. The latter the occupant must not 

intercept; he can only supervise the expenditure of such revenue, to see that it is not devoted to a hostile purpose.”).

416 1956 FM 27-10 (Change No. 1 1976) ¶427 (“The words ‘for the benefit of the State’ were inserted in the 

foregoing article (HR, art. 48; par. 425 herein) to exclude local taxes, dues, and tolls collected by local authorities. 

The occupant may supervise the expenditure of such revenue and prevent its hostile use.”). See also JAMES BROWN 

SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 523 (1920) (“Jonkheer 

van Karnebeek remarks that as the fundamental purport of this article is that the authority of the occupant is 

substituted for that of the invaded State, it cannot be admitted that the occupant, by assuming a right which the 

occupied State does not possess, may take possession of the municipal taxes, which the invaded State itself would 

not think of appropriating in normal circumstances. Mr. Veljkovitch remarks that in this eventuality the municipal 

authorities, being no longer able to discharge their duties, can likewise not collect the municipal taxes and especially 

the county rate; it is therefore proper for the occupant, whose power is substituted for that of the authorities, to take 

possession of the said taxes.”).

417 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 186 (“The occupant in collecting taxes must follow 

the rules of procedure as well as the law of the country with regard to the distribution of the tax burden. This is an 

instance of the general rule that the occupant shall respect the laws in force in the occupied territory unless 

absolutely prevented.”).

418 1956 FM 27-10 (Change No. 1 1976) ¶426a (“When Existing Rules May Be Disregarded. If, due to the flight or 

unwillingness of the local officials, it is impracticable to follow the rules of incidence and assessment in force, then 

the total amount of taxes to be paid may be allotted among the districts, towns, etc., and the local authorities 

required to collect it.”).

419 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151-52 (“Just as an occupant may collect taxes, so he may 

suspend existing taxes if the unaffected levies are sufficient to cover administrative expenses and if he does not 

desire to enrich himself out of possible surplus revenues.”). For example, Coalition Provisional Authority Order 

No. 37, Tax Strategy for 2003, §2 (Sept. 19, 2003) (“Subject to Section 6 of this Order, the following taxes are 

suspended from April 16, 2003 to the end of calendar year 2003:”).

420 1956 FM 27-10 (Change No. 1 1976) ¶426b (“New Taxes. Unless required to do so by considerations of public 

order and safety, the occupant must not create new taxes.”); Bassil Abu Aita et al. v. The Regional Commander of 

Judea and Samaria and Staff Officer in Charge of Matters of Custom and Excise, HCJ 69/81; Omar Abdu Kadar 

Kanzil, et al. v. Officer in Charge of Customs, Gaza Strip Region and the Regional Commander of the Gaza Strip, 

HCJ 493/81, Israel Supreme Court Sitting as the High Court of Justice, 200, 270-71 (Apr. 5, 1983) (“Since the 

power of imposing ordinary taxes are within the domain of the sovereign alone, accordingly, it is argued, it does not 
827

as monetary contributions or customs duties.

421

U.N. Security Council resolutions may provide additional authority for the Occupying 

Power to amend the tax laws.422

11.22.1.3 Spending of Tax Revenue. The first charge upon such taxes is for the 

cost of the administration of the occupied territory. The balance may be used for the purposes of 

the Occupying Power.

423

The Occupying Power may use tax revenue to defray the costs of maintaining order in the 

occupied territory or for expenditures that benefit the local population (e.g., infrastructure 

improvements).424

The Occupying Power may refrain from spending money for the support of any activity 

opposed to its military interests or to the restoration of order in the occupied territory, even if the 

State whose territory is occupied formerly allocated tax revenues to such activity.425

11.22.1.4 Exemption of the Occupying Power From Local Taxation. As the 

paramount authority in the occupied territory,426 the Occupying Power is exempt from 

indigenous taxation in the occupied territory unless it specifically waives its sovereign immunity 

 

pertain to anyone whose authority is temporary and military, as described. However, while no one disputes the 

theoretical base of this doctrine, it does not of necessity create a limitation on the power to impose taxation if the 

benefit and requirements of the territory deem it necessary, since the maintenance of proper balance between them 

and the requirements of the ruling army is a constant central guiding principle of military government. This 

character of military government indeed explains why taxes may be imposed only for the requirements of the 

territory (or requirements of the army when army contributions are involved), but it does not necessarily lead to the 

conclusion that the limitation on the imposition of taxes also takes precedence over the obligation to satisfy the 

needs of the territory and its inhabitants, and as far as possible, to restore normal life, including the economic aspect 

thereof.”).

421 Refer to § 11.22.2 (Contributions); § 11.22.3 (Customs Duties).

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

423 1956 FM 27-10 (Change No. 1 1976) ¶425b (“Surplus. The first charge upon such taxes is for the cost of the 

administration of the occupied territory. The balance may be used for the purposes of the occupant.”).

424 See also VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151 (“It should be pointed out in this connection 

that as long as it is a duty of the occupant to restore order and public safety in the territory, the expenditures incurred 

by him as administrator for the benefit of the territory and its inhabitants should be paid for by the beneficiaries. 

This appears to be particularly true in the case of capital expenditures. Normally an occupant would be unwilling to 

permit heavy capital outlays in occupied enemy territory (such as the construction of dams, power stations, canals, 

and public buildings), but if, in rare instances, permission would be granted for such extraordinary outlays over and 

above normal operating expenses of the native administration, then the necessary funds should come from any 

excess revenues collected by the indigenous agencies, not from the occupant’s own reserves.”).

425 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 150 (“Obviously no occupant need spend money for the 

support of any activity opposed to his military interests or to the restoration of order in the area, even if the absent 

legitimate sovereign formerly allocated tax revenues to such activity.”).

426 Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied 

Territory).
828

and consents to be taxed.427 Its personnel are also generally exempt from local taxation, as part 

of their immunity from local law.428

In practice, the Occupying Power often issues an order specifying that no direct taxes of 

any kind may be levied or assessed within the occupied territory on the persons, agencies, 

property, instrumentalities, or transactions of the Occupying Power.

429

11.22.1.5 Scope of the Occupying Power’s Power to Collect Taxes. The power of 

the Occupying Power to collect taxes extends only to persons or property under its actual 

control.430 For example, persons and property wholly outside occupied territory generally may 

not be taxed,431 but the property of the absent inhabitants that is within the occupied territory 

may be taxed.

11.22.1.6 Social Welfare Taxes. An Occupying Power is often an employer of 

local civilian labor. Local law may provide that employers are responsible for the deduction and 

transfer to indigenous agencies of unemployment, health insurance, pensions, and similar welfare 

contributions. However, generally the agencies of the Occupying Power do not act as a collector 

for the local authorities, and will not be responsible for the employer’s share of such welfare 

taxes. On the other hand, the inhabitants retain their obligation to pay their share of such 

contributions out of their remuneration.432

11.22.2 Contributions. If, in addition to continuing to collect taxes under the existing law 

of the occupied territory as permitted by Article 48 of the Hague IV Regulations, the Occupying 

 427 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153-54 (“[A]n occupant is virtually exempt from 

indigenous taxation in an occupied territory unless he takes the rather unlikely step of waiving his sovereign 

immunity and consents to be taxed. In actual practice the occupation authorities normally issue an order to the 

effect that no direct taxes of any kind may be levied within the occupied area on the persons, agencies, or property 

of the armed forces of the invader and that no direct taxes may be assessed against the property, instrumentalities or 

transactions of the occupying authorities themselves.”).

428 Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).

429 For example, Coalition Provisional Authority Order No. 17, Status of the Coalition Provisional Authority, MNFIraq, Certain Missions and Personnel in Iraq, §10(1) (Jun. 27, 2004) (“The MNF, Sending States and Contractors 

shall be exempt from general sales taxes, Value Added Tax (VAT), and any similar taxes in respect of all local 

purchases for official use or for the performance of Contracts in Iraq.”).

430 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 197 (“It must be remembered that the power of the 

occupant to collect taxes is purely de facto and territorial, i.e., it extends only to persons or property under his actual 

control.”).

431 Cf. MacLeod v. United States, 229 U.S. 416, 432-33 (1913) (“A state of war as to third persons continued until 

the exchange of treaty ratifications, and, although rice, not being contraband of war, might have been imported, the 

authority of the military commander, until the exchange of ratifications, may have included the right to control 

vessels sailing from Manila to trade in the enemy’s country and to penalize violations of orders in that respect. But 

whatever the authority of the commander at Manila or those acting under his direction to control shipments by 

persons trading at Manila and in vessels sailing from there of American registration, such authority did not extend to 

the second collection of duties upon a cargo from a foreign port to a port occupied by a de facto government which 

had compulsorily required the payment of like duties.”).

432 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153 (“An inhabitant of the occupied territory will retain 

his obligation to pay such contributions out of his remuneration as approved local law demands, but must pay the 

amounts due from his take-home pay to whatever native agency is responsible for the collection of the funds.”).
829

Power levies other money contributions in the occupied territory, this shall only be for the needs 

of the army or the administration of the territory in question.433

11.22.2.1 Prohibited Purposes for Levying Contributions. Contributions may not 

be levied for other than the needs of the occupying forces and the administration of the occupied 

territory. For example, contributions may not be levied:

• for the enrichment of the Occupying Power;

• for the payment of war expenses generally;

434

• for the purposes of collective punishment;

435 or

• for the purposes of impoverishing the population in order to pressure the enemy to sue for 

peace.436

11.22.2.2 Methods of Levying Contributions. No contribution shall be collected 

except under a written order, and on the responsibility of a “Commander-in-chief.”437 The term 

“Commander-in-chief” may be understood to refer to the highest military officer charged with 

the administration of the occupied territory.438 Commanders of small units or detachments may 

not order the collection of contributions.

439

The collection of contributions shall only be effected as far as possible in accordance 

with the rules of assessment and incidence of the taxes in force.440 

For every contribution, a receipt shall be given to the contributors.441 The receipt is 

intended to secure for the contributors the possibility of being indemnified afterward by their 

 433 HAGUE IV REG. art. 49 (“If, in addition to the taxes mentioned in the above article, the occupant levies other 

money contributions in the occupied territory, this shall only be for the needs of the army or the administration of 

the territory in question.”).

434 1956 FM 27-10 (Change No. 1 1976) ¶428b (“Prohibited Purposes. Contributions may not be levied for the 

enrichment of the occupant, for the payment of war expenses generally, or for other than the needs of the occupying 

forces and the administration of the occupied territory.”).

435 Refer to § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory).

436 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 177 (“They may not be imposed for the purpose of 

enriching the occupant or for impoverishing the population and thus exerting pressure on it to sue for peace.”).

437 HAGUE IV REG. art. 51 (“No contribution shall be collected except under a written order, and on the 

responsibility of a Commander-in-chief.”).

438 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182 (“Seemingly the term ‘commander in chief' refers 

to the highest military officer charged with the administration of the occupied territory.”).

439 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 181 (“Levies of contributions by commanders of 

small units or detachments are prohibited.”).

440 HAGUE IV REG. art. 51 (“The collection of the said contribution shall only be effected as far as possible in 

accordance with the rules of assessment and incidence of the taxes in force.”). Compare § 11.22.1.2 (Changes in 

Taxes or New Taxes).

441 HAGUE IV REG. art. 51 (“For every contribution a receipt shall be given to the contributors.”).
830

own government, and does not imply a promise of reimbursement by the Occupying Power.

442

11.22.2.3 Forced Loans. The Occupying Power may seek contributions from the 

inhabitants of an occupied territory in the form of forced loans. The Occupying Power is 

required to repay such loans. As forced loans are viewed as a form of contribution, they are 

governed by the rules applicable to contributions.443

11.22.2.4 Non-Cash Contributions. As contributions are money demands, 

commodities may not be exacted as contributions. However, if the inhabitants of the occupied 

territory use certain commodities, rather than money, as a medium of exchange and receivable in 

payment of tax obligations, contributions in-kind limited to such commodities would be 

permissible.444 Additionally, if the Occupying Power finds it difficult to secure prompt money 

payment, it may accept securities and bills of exchange from contributors in lieu of money.445

11.22.3 Customs Duties. The Occupying Power has the right to continue to exact

existing duties, as part of its right to collect existing taxes.

446 Such collection must comply with 

the rules for the collection of existing taxes.447

The Occupying Power may also exact new duties as a form of contributions levied 

against the enemy or its trade.

448 Such new duties must comply with the rules for 

 442 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183-84 (“There is no obligation imposed by the 

Hague Regulations for the reimbursement of contributions. The receipt required to be given the contributors is 

evidence that money has been exacted but implies no promise to pay by the occupant. The receipt is intended to 

secure to the contributors ‘the possibility of being indemnified afterwards by their own government’.”).

443 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 184 (“A forced loan is an involuntary exaction of 

money imposed on the inhabitants by the occupant which the latter is bound to repay. It is a form of contribution 

and differs from the latter only in that there is a duty of returning the money exacted. The same rules that govern 

contributions apply to forced loans.”).

444 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182-83 (“In primitive communities some 

commodities may be the medium of exchange and receivable in payment of tax obligations. In such circumstances 

contributions in kind limited to such commodities would seemingly be permissible as being contributions in 

money.”).

445 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183 (“An occupant who finds it difficult to secure 

prompt money payments may accept securities and bills of exchange from the contributors in lieu of money. This 

practice was used by the Germans in the Franco-German War of 1870.”).

446 Dooley v. United States, 182 U.S. 222, 230 (1901) (“Upon the occupation of the country by the military forces of 

the United States, the authority of the Spanish Government was superseded, but the necessity for a revenue did not 

cease. The government must be carried on, and there was no one left to administer its functions but the military 

forces of the United States. Money is requisite for that purpose, and money could only be raised by order of the 

military commander. The most natural method was by the continuation of existing duties. In adopting this method, 

General Miles was fully justified by the laws of war.”).

447 Refer to § 11.22.1 (Taxes).

448 For example, Coalition Provisional Authority Order No. 38, Reconstruction Levy, §1 (Sept. 19, 2003) (“1) 

Notwithstanding CPA Order Number 12 or any other CPA Order suspending a tax, levy, duty, charge, withholding, 

fee or tariff, there shall be created a levy known as the Reconstruction Levy. 2) For the purpose of calculating the 

Reconstruction Levy, the taxable value of goods shall consist of their total customs value assessed in accordance 

with international practice. 3) The Reconstruction Levy shall be imposed at a rate of 5% of the taxable value of 

goods. The revenues from the Reconstruction Levy shall be used only to assist the Iraqi people and support the 
831

contributions.449

11.22.3.1 Exemptions for Certain Relief Shipments. Relief shipments for POWs, 

relief shipments for internees, and other relief consignments intended for occupied territory are 

exempt from customs duties.450

11.22.3.2 Power to Suspend Customs Duties and Tariffs or Exempt Certain 

Goods. The Occupying Power may suspend customs duties and tariffs for shipment of goods 

into the occupied territory.451 It may also exempt certain types of goods (e.g., humanitarian 

goods, goods for its forces) from customs duties and tariffs.452

11.22.4 Enemy Public Debts. 

11.22.4.1 Debts Owed to Occupied Territory. Many jurists have taken the view 

that the Occupying Power is generally not permitted to collect pre-occupation debts owed to the 

sovereign of the occupied territory, as it is not a party to the agreement originating the debt.453 

 

reconstruction of Iraq. It shall expire two years from the date that this Order enters into force. 4) Unless exempted 

under this Order, the Reconstruction Levy shall be imposed on all goods imported into Iraq from all countries 

beginning 1 January 2004.”); Fleming v. Page, 50 U.S. 603, 616 (1850) (“The person who acted in the character of 

collector in this instance, acted as such under the authority of the military commander, and in obedience to his 

orders; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the 

President in his character of commander-in-chief. The custom-house was established in an enemy’s country, as one 

of the weapons of war. ... The duties required to be paid were regulated with this view, and were nothing more than 

contributions levied upon the enemy, which the usages of war justify when an army is operating in the enemy’s 

country.”).

449 Refer to § 11.22.2 (Contributions).

450 Refer to § 9.20.4.1 (Exemption From Dues for Relief Shipments): § 10.23.4.1 (Exemption From Dues for Relief 

Shipments); § 11.17.1.3 (Charges, Taxes, and Customs Duties on Collective Relief Consignments for Occupied 

Territories).

451 For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, §1 (Jun. 8, 2003) (“All 

tariffs, customs duties, import taxes, licensing fees and similar surcharges for goods entering or leaving Iraq, and all 

other trade restrictions that may apply to such goods, are suspended until December 31, 2003.”); Coalition 

Provisional Authority Order No. 54, Trade Liberalization Policy 2004, §1 (Feb. 26, 2004) (“All customs tariffs, 

duties, import taxes (not including the Reconstruction Levy imposed by CPA Order Number 38), and similar 

surcharges for goods entering or leaving Iraq are suspended until the sovereign transitional Iraqi administration 

imposes such charges following the CPA’s transfer of full governance authority to that administration.”).

452 Coalition Provisional Authority Order No. 38, Reconstruction Levy, §2 (Sept. 19, 2003) (“1) The following 

humanitarian goods shall be exempt from the Reconstruction Levy: ... e. Goods imported to be delivered as 

humanitarian assistance to the people of Iraq or in support of reconstruction of Iraq. ... 2) The Reconstruction Levy 

shall not apply to the following persons or entities: ... b) Coalition Forces;”).

453 See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“[T]he majority of jurists concur in the view that 

the occupant cannot legally collect pre-occupation debts owed to the legitimate sovereign of the territory and at the 

same time act in accordance with the prevailing rules of international law.”); U.S. ARMY, THE JUDGE ADVOCATE 

GENERAL’S SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS 108 (1958) (“The 

first paragraph of Article 53, HR (par. 403, FM 27-10), raises, rather than answers, the question whether the 

occupant may collect debts due the ousted sovereign. The question is complicated by the argument that as state 

debts constitute obligations between the debtors and the ousted sovereign and as occupation does not transfer 

sovereignty, the occupant does not succeed to the privity enjoyed by the ousted sovereign. Some authorities accept 

this rationale and take the position that the occupant cannot legally collect any debts due the state. See, Von Glahn, 
832

However, the Occupying Power may collect the debts owed to the sovereign, provided that the 

debts may be legitimately characterized as realizable securities that are strictly the property of 

the State (e.g., bearer instruments).

454 In addition, the Occupying Power may seize debts owed 

to insurgent forces.455

11.22.4.2 Existing Debts Owed by the Occupied Territory. The Occupying Power

is under no obligation to pay the debts owed by the occupied territory, although it may choose to 

do so as a matter of policy.456

The Occupying Power may prevent payments from being made from occupied territory to 

a hostile belligerent.457

11.22.4.3 Contracting New Debt on Behalf of the Occupied Territory. In general, 

the Occupying Power may not contract new debts (including through the issuance of debt 

securities) on behalf of the occupied territory or collect taxes to pay interest on such debt.458 

 

The Occupation of Enemy Territory 156-159 (1957). Other authorities, resorting to Article 48 HR (par. 425a, FM 

27-10), contend that as the occupant is obliged to defray the expenses of administration of the territory, he ought to 

be authorized to collect those debts falling due during the period of his occupation. See, Stone, Legal Controls of 

International Conflict 717 (1954).”).

454 Refer to § 11.18.5.3 (Public Personal (Movable) Property).

455 For example, In Re, Order of Major-General Otis Requiring Smith, Bell & Co., A Banking House at Manila, to 

Turn Over to the American Authorities One Hundred Thousand Dollars, Held by Said House as the Property of the 

Insurgent Forces in the Philippines, Submitted October 10, 1899, Case No. 738, Division of Insular Affairs, War 

Department in CHARLES E. MAGOON, LAW OFFICER, BUREAU OF INSULAR AFFAIRS, WAR DEPARTMENT, REPORTS 

ON THE LAW OF CIVIL GOVERNMENT IN TERRITORY SUBJECT TO MILITARY OCCUPATION BY THE MILITARY FORCES 

OF THE UNITED STATES 261, 262 (2nd ed., 1902) (“It is conceded that the fund seized was intended to be used for 

promoting the insurrection and that the insurgents sought to utilize the bank as a means of transfer for said funds. 

Under the laws and usages of war the United States may lawfully seize and retain such funds, and to that end may 

compel the person having such funds, in his possession to pay over the same to the military authorities. The most 

favorable view of the conduct of the bank in attempting to perform the service rendered the insurgents herein, is to 

consider the obligation assumed by the bank as creating an indebtedness to the persons associated in the insurrection 

and the draft as an evidence thereof. Such indebtedness may properly be collected by the United States as a military 

measure calculated to weaken the insurrection.”).

456 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 158-59 (“Most authorities concur in the belief that an 

occupant is under no obligation to pay interest on or the principal of any public debt owed by the territory, that is, by 

the lawful sovereign. The occupant may, of course, choose to do so, as a matter of public policy, just as he may 

decide to pay pensions hitherto charged against the absent sovereign, but ordinarily all such payments are not 

considered to constitute proper administrative expenses obligating the occupying power.”).

457 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“The occupant may rightfully prevent all payments 

from the area under his control to the hostile government.”).

458 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“Second, it is generally accepted that an occupant 

may not contract new debts on behalf of the occupied territory or collect taxes to pay interest on such unlawful debt. 

Some authorities differ with this conclusion and maintain that there exists an exception, based on necessity and on 

the occupant’s obligation to restore and maintain order and public safety. This latter view appears reasonable, 

provided that it could be demonstrated convincingly that the new indebtedness was not only required by the welfare 

of the native population but also constituted a fair and reasonable transaction.”). For example, Coalition Provisional 

Authority Order No. 95, Financial Management Law and Public Debt Law, §4(2) (Jun. 4, 2004) (“Until such time as 

the Iraqi Interim Government assumes full governance authority in accordance with Article (2)(B)(1) of the Law of 
833

However, new debt may be undertaken on behalf of the occupied territory if immediately

necessary for the welfare of the inhabitants of occupied territory, and if undertaking such debt 

constitutes a fair and reasonable transaction.

459

11.22.4.4 Refinancing or Consolidating Existing Public Debt. The Occupying 

Power may refinance or consolidate already existing public debt of the occupied territory if it is 

clearly in the interest of sound financial administration of that territory, and therefore of direct 

benefit to the inhabitants.460 

11.22.5 Currency and Exchange Rates. The Occupying Power may leave the local 

currency of the occupied area in circulation. The Occupying Power may also authorize domestic 

authorities to re-issue currency if necessary for ensuring public order and safety.461 

The Occupying Power may introduce its own currency into the occupied area or issue 

special currency for use in the occupied area territory, should the introduction or issuance of such 

currency be necessary.

462 There is a long history of issuing such war currency.463 The issuance 

 

the Administration for the State of Iraq for the Transitional Period, the Ministry of Finance is prohibited from 

issuing new debt securities if the issuance of such securities would increase the total level of Iraq’s public debt, 

including obligations to the Central Bank, beyond the current level of such debt.”).

459 John W. Griggs, Attorney General, Cuba—Claims—Contracts, Jan. 19, 1899, 22 OPINIONS OF THE ATTORNEY 

GENERAL 310, 311 (1900) (“The completion of the proposed contract between Dady & Co. and the city of Havana 

would involve an expenditure for the benefit of that city of $14,000,000, to be secured by an issue of municipal 

bonds. It is manifest that a matter of such great importance to the city of Havana, its citizens and taxpayers, ought 

not to be determined without a full and complete understanding of all the facts and a thorough knowledge of the 

civil law applicable thereto under the system prevailing in Cuba. ... The administration of the United States in Cuba 

is of a military nature, and merely temporary. No action binding the island or any of its municipalities to large 

expenditures and continuing debt ought to be made, except upon grounds of immediate necessity, which in this case 

do not appear to be present.”).

460 For example, Coalition Provisional Authority Order No. 95, Financial Management Law and Public Debt Law, 

§1(2) (Jun. 4, 2004) (“This Order promulgates the Public Debt Law, which authorizes the Ministry of Finance to 

issue and pay debt securities guaranteed by the Government, and establishes certain related authorities and duties, 

for the purposes of financing Government operations and promoting a stable Iraqi economy.”). See also VON 

GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“[A]n occupant appears to be entitled to refinance or to 

consolidate already existing public debts of an occupied territory if such a step is clearly in the interest of sound 

financial administration and thus for the direct benefit of the inhabitants of the area.”); J.A.G.S. TEXT NO. 11, LAW 

OF BELLIGERENT OCCUPATION 232 (“Seemingly, the occupant acting as administrator of the occupied territory may 

refinance or consolidate the existing indebtedness of the occupied state in the interest of sound public 

administration.”).

461 For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §3(1) (Oct. 14, 2003) 

(“The CBI [Central Bank of Iraq] is, pursuant to Article 34 of the Central Bank of Iraq Law No. 64 of 1976, as 

amended, the sole authority in the Republic of Iraq vested with the power to issue legal tender currency. The CBI, 

under the supervision of the CPA, shall issue New Iraqi dinar banknotes and determine the denominations, designs, 

technical specifications, and other characteristics of New Iraqi dinar banknotes.”).

462 1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupying power may leave the local currency of the occupied 

area in circulation. It is also authorized to introduce its own currency or to issue special currency for use only in the 

occupied area, should the introduction or issuance of such currency become necessary.”); Abotiz & Co. v. Price, 99 

F. Supp. 602, 611-12 (D. Utah 1951) (“Some recognized medium of exchange was necessary to keep the economic 

life of the community going. And, the power of a military government in occupied enemy territory to issue military 

currency cannot seriously be questioned.”).
834

of occupation currency may be necessary to counteract the enemy State’s practice of engaging in 

economic sabotage.464

The Occupying Power may also set exchange rates for currency in occupied territory.

465 

The Occupying Power’s powers to regulate currency must not be used to confiscate 

private property.466 For example, intentional debasement of currency by the establishment of 

fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps 

to prevent inflation, with the result of enrichment of the Occupying Power, would violate

international law.

467

 463 Aboitiz & Co. v. Price, 99 F. Supp. 602, 614-15 (D. Utah 1951) (“The validity of such war currency is not only 

supported by these principles of international law, to which our own country has given its assent, but, it is supported 

by the dictates of a sound public policy, and, there is back of it a long history of the use of war money by many 

nations. During our own Revolutionary War, the Continental Congress issued currency for use in British territory 

occupied by the colonial troops before the Declaration of Independence. The rebel government of the Confederate 

States issued a war currency which, as we have seen, was held valid by the Supreme Court of the United States. 

Moreover, the United States and her allies in World War II issued occupation currency in Sicily, Germany, and 

Austria. The Combined Chief of Staffs of the Supreme Allied Commander issued a directive June 24, 1943, that the 

task forces use, besides regular United States coins, yellow seal dollars and besides regular British coins, British 

Military Authority (BMA) notes, to supplement lire currency. The Combined Directive for Military Government in 

Germany, April 28, 1944, directed the Allied forces to use yellow seal dollars and British Military Authority notes 

(BMA), if the Reichs mark currency became inadequate. The American Directive on Military Government of 

Austria, June 27, 1945, ordered our forces to use for military purposes only Allied Military Schillings.”).

464 For example, Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily, 

Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before the Committees on 

Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 81-82 

(Jun. 17-18, 1947) (“The currency policies deliberately followed by the Axis in retreat were designed to make the 

maintenance of ‘public order and safety’ by the Allied powers as difficult as possible. The variety of forms of 

economic sabotage which the Germans might use is illustrated by the seemingly opposite practices followed in 

Tunisia and in Sicily. In Tunisia, the Germans distributed Bank of France notes on a grand scale, increasing wage 

rates to some classes of employees manifold, patronizing the black market freely, and paying collaborationists 

lavishly. ... In Sicily, Mussolini went even further [than in Italy] and ordered the banks to be substantially depleted 

to the point where additional new currency was urgently needed for immediate use to permit the resumption of 

normal commercial activity. ... Thus, the Axis practices made a ready supply of new currency even more essential 

than otherwise, and provide a complete justification for the use of such currency under the test of the Hague 

Convention.”).

465 For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §5 (Oct. 14, 2003) 

(“The 1990 dinar banknotes and the Swiss dinar banknotes and coins shall be exchanged against New Iraqi dinar 

banknotes at the official conversion rates of one (1) 1990 dinar to one (1) New Iraqi dinar, and of one (1) Swiss 

dinar to one-hundred-and-fifty (150) New Iraqi dinars.”).

466 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

467 1956 FM 27-10 (Change No. 1 1976) ¶430 (“Intentional debasement of currency by the establishment of 

fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps to prevent inflation, 

are violative of international law.”). See also Opinion on the Legality of the Issuance of AMG (Allied Military 

Government) Currency in Sicily, Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before 

the Committees on Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First 

Session, 73, 82 (Jun. 17-18, 1947) (“The Germans were roundly criticized during the First World War, and again in 

this war, for introducing occupation marks and similar currency devices. ... The vice of the German practice is not 

in the use of currency, but in the excessive issue of valueless currency as a device for stripping the occupied area of 

its good and its labor for the benefit of Germany.”).
835

11.23 OTHER ECONOMIC REGULATION OF OCCUPIED TERRITORY

11.23.1 General Authority of the Occupying Power to Regulate Commercial Intercourse. 

The Occupying Power has the right to regulate commercial intercourse within, into, or out of the 

occupied territory. It may subject such intercourse to such prohibitions or restrictions as are 

essential to the purposes of the occupation.

468 The Occupying Power also may remove existing 

commercial restrictions or regulations when essential to the purposes of the occupation.469 For 

example, the Occupying Power may suspend existing customs tariffs.470 

The purposes of the occupation that justify economic regulation may include the military 

interest of the Occupying Power, the needs of the inhabitants of occupied territory, and 

applicable law of war obligations. 

For example, for its military purposes, the Occupying Power may impose a moratorium 

on business payments until an effective occupation government is in place in order to safeguard 

financial institutions, to preserve records, and to ensure that funds and other assets of the enemy 

government are not transferred without the knowledge and approval of the Occupying Power. 

Similarly, for purposes of security and restoration of public order, the Occupying Power may 

also take steps to prevent hoarding of supplies, to curb or prevent black markets, and to regulate 

labor conditions, including strikes.471 As another case in point, in order to fulfill its obligations 

with respect to the preservation of cultural property in occupied territory, the Occupying Power

may issue commercial regulations intended to prevent illegal traffic in, and looting of, such 

property.

472

Additional authority to regulate the economy of occupied territory may be provided by 

U.N. Security Council resolutions.473

 468 1956 FM 27-10 (Change No. 1 1976) ¶376 (“The occupant has the right to regulate commercial intercourse in the 

occupied territory. It may subject such intercourse to such prohibitions and restrictions as are essential to the 

purposes of the occupation.”). See also WILLIAM E. BIRKHIMER, MILITARY GOVERNMENT AND MARTIAL LAW 268 

(1914) (“One of the most important incidents of military government is the regulation of trade with the subjugated 

state. The Occupying State has an unquestioned right to regulate commercial intercourse with conquered territory. 

It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either 

policy or a proper attention to military measures may justify.”).

469 2004 UK MANUAL ¶11.32 (“The occupying power may place on the occupied territory such restrictions and 

conditions in respect of commercial dealings as may be necessary for military purposes. For the same reasons it 

may remove existing restrictions, such as current customs tariffs.”); 1958 UK MANUAL ¶530 (“The Occupant may 

place such restrictions and conditions upon all commercial intercourse with the occupied territory as he may deem 

suitable for his military purpose. He may likewise remove existing restrictions; for instance, he may suspend the 

customs tariff in force.”).

470 Refer to § 11.22.3.2 (Power to Suspend Customs Duties and Tariffs or Exempt Certain Goods).

471 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 208 (“The occupant also appears to possess other powers 

over private business, including the right to prevent hoarding of supplies and raw materials, the prevention of black 

markets, the regulation of labor conditions, including strikes, and, in general, the power to return business conditions 

in the territory to nearly normal conditions as speedily as possible.”).

472 Refer to § 11.19.1 (Obligation With Respect to the Safeguarding and Preservation of Cultural Property).

473 Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).
836

11.23.2 Limit on the Overall Burdens Placed on the Economy of the Occupied Territory. 

The economy of an occupied territory can only be required to bear the expenses of the 

occupation, and these should not be greater than the economy of the occupied territory can 

reasonably be expected to bear.474 For example, requisitions must be in proportion to the 

resources of the occupied territory.475

11.23.3 Control of Business in Occupied Territory. The Occupying Power may exercise 

controls over private business for the purpose of addressing the needs of the inhabitants of the 

occupied territory or for military purposes, including by: (1) compelling the continued operation 

of a business; (2) granting of business subsidies; (3) closing down a business; or (4) assuming 

control and management of a business.

The Occupying Power may compel a business to continue operations if necessary to 

serve the needs of the local population or for military purposes.476 Compulsory work of 

protected persons, however, must comply with the GC.477 

The Occupying Power may take steps to increase production from private business, such 

as by granting subsidies out of available governmental revenues from the occupied territory.478

If the Occupying Power determines that the continued operation of a business is 

detrimental to the interests of the local population or to the Occupying Power, the Occupying 

Power may close down the business.479

The Occupying Power may assume control and management of such a business if 

necessary to serve the needs of the local population or for military purposes.

480 Title to the 

business in such circumstances remains with the legal owner, and if the Occupying Power earns 

 474 1956 FM 27-10 (Change No. 1 1976) ¶364 (“The economy of an occupied country can only be required to bear 

the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be 

expected to bear.”). See also United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR 

CRIMINALS BEFORE THE IMT 239 (“The evidence in this case has established, however, that the territories occupied 

by Germany were exploited for the German war effort in the most ruthless way, without consideration of the local 

economy, and in consequence of a deliberate design and policy. There was in truth a systematic ‘plunder of public 

or private property’, which was criminal under Article 6(b) of the Charter... . Raw materials and finished products 

alike were confiscated for the needs of the German industry.”).

475 Refer to § 11.18.7 (Requisitions of Private Enemy Property).

476 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If the operations of a given enterprise appear 

necessary to the occupant, he may compel the continuation of such operations.”).

477 Refer to § 11.20 (Labor of Protected Persons in Occupied Territory).

478 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207-08 (“If existing private industries fail to supply in 

required quantities such commodities as may be urgently needed by the native inhabitants or by occupants own 

forces in the occupied territory, it appears to be permissible for him to undertake steps to increase production, if 

necessary by subsidization out of available government revenues of the occupied area.”).

479 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If, on the other hand, such continued operations 

appear to be against the interests of the population or of the occupying power, the latter may close down the 

enterprise in question.”).

480 Refer to § 11.18.3 (Property Control Measures).
837

a profit from the operation of the business, the legal owner must be indemnified, to avoid a 

prohibited confiscation of private property.481

11.23.4 Regulation of External Trade. The Occupying Power may also regulate foreign 

trade, including completely suspending such trade.482 For example, the Occupying Power may 

halt the export of precious metals and other valuable items that are readily converted or 

exchanged on the international market, including metals such as copper, jewels, and securities.483 

Commercial relations between the occupied territory and the remaining territory of the 

enemy and its allies are also normally suspended.484 Such suspension may be relaxed through 

licenses to trade.485

11.23.5 Exchange Controls, Including Clearing Arrangements, and Asset Controls. The 

Occupying Power may also institute exchange controls, including clearing arrangements, and, if 

necessary, the freezing or blocking of certain assets, in order to conserve the monetary assets of 

the occupied territory, as well as for security purposes.486 For example, the Occupying Power

 481 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“An occupant apparently may also lawfully place 

under his direct control and management any enterprise which is held by him to be vital for his needs or the needs of 

the indigenous population. Such an assumption of management is not expropriation, for title to the property in 

question remains vested in its former owner-operator; the occupant merely assumes a temporary control and has to 

return the firm when the need for his control has passed. If the occupant earns a profit during his operation of a 

private enterprise seized by him he should indemnify the owner in full for the amount of the profit, since the Hague 

regulations prohibit the confiscation of private property.”).

482 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 211-12 (“The occupant possesses a right, based on logic, 

to regulate all trade between an occupied area and the outside world. ... [N]ormally, also, all commercial relations 

between the area and its allies as well as the remainder of the sovereign’s territory are suspended as soon as 

occupation becomes effective.”).

483 For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, Annex – Prohibited 

Exports (Jun. 8, 2003); Coalition Provisional Authority Order No. 54, Trade Liberalization Policy 2004, Annex –

Restricted Exports (Feb. 26, 2004); Coalition Provisional Authority Memorandum No. 8, Exportation of Scrap 

Metal Under Order Number 12, Trade Liberalization Policy (CPA/ORD/7 June2003/12), §3 (Jan. 25, 2004) 

(“Effective February 1, 2004, metal, including scrap metal, shall not be exported without authorization from the 

Ministry of Trade. Prior to February 1, 2004, scrap metal, excluding copper and lead, may be exported without a 

license.”).

484 1956 FM 27-10 (Change No. 1 1976) ¶376 (“The commander of the occupying forces will usually find it 

advisable to forbid intercourse between the occupied territory and the territory still in the possession of the 

enemy.”). Refer to § 12.1.1 (Traditional Rule of Non-Intercourse During War).

485 Refer to § 12.6.3.2 (Licenses to Trade).

486 1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupant may also institute exchange controls, including 

clearing arrangements, in order to conserve the monetary assets of the occupied territory.”). For example, Coalition 

Provisional Authority Order No. 93, Anti-Money Laundering Act of 2004, §1 (Jun. 3, 2004) (“The purpose of the 

Anti-Money Laundering Law is to secure financial institutions and combat instability by criminalizing the acts of

laundering money, financing crime, financing terrorism, and structuring certain transactions.”); Haw Pia v. China 

Banking Corp. (Supreme Ct., Philippines 1949), Annual Digest, 1951, Case No. 203, reprinted in 43 AJIL 821-23 

(1949) (“As to the first question, we ... hold, that the Japanese military authorities had power, under the 

international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank 

of Taiwan as liquidator to accept the payment in question, because such liquidation is not a confiscation of the 

properties of the bank appellee, but a mere sequestration of its assets which require the liquidation or winding up of 

the business of said bank.”) (amendment in AJIL).
838

may regulate, or even prohibit, the flow of funds between the occupied territory and other 

countries, under the theory that preventing flight of capital assets is critical to maintaining order 

and stability.487 Such measures must not, however, be used to enrich the Occupying Power or 

otherwise circumvent the restrictions placed on requisitions, contributions, seizures, and other 

measures dealing with property.488

11.23.6 Price Controls in Occupied Territory. The Occupying Power may regulate prices 

in the occupied territory. For example, shortages of commodities and increased demand for 

certain commodities in the occupied territory may result in a rise in price fluctuations requiring 

the Occupying Power to resort to measures designed to maintain prices at a reasonable maximum 

level.489 However, the Occupying Power may not use its power over price controls for the 

purpose of exploiting the occupied territory to its own illegal advantage.490

 487 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 203-04 (“Thus an occupant would appear to possess the 

right to regulate and even to prohibit a flow of funds between an occupied territory and other countries, in view of 

the likely possibility that a capital flight would disrupt the monetary system and hence the order and safety to be 

preserved by the occupant.”).

488 1956 FM 27-10 (Change No. 1 1976) ¶430 (“Such measures must not, however, be utilized to enrich the 

occupant or otherwise circumvent the restrictions place on requisitions, contributions, seizures, and other measures 

dealing with property.”). For example, JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE TRIAL OF 

THE GERMAN MAJOR WAR CRIMINALS (Indictment Count 3(E)(6) (“By a variety of financial mechanisms, they 

despoiled all of the occupied countries of essential commodities and accumulated wealth, debased the local currency 

systems and disrupted the local economies. They financed extensive purchases in occupied countries through 

clearing arrangements by which they exacted loans from the occupied countries. They imposed occupation levies, 

exacted financial contributions, and issued occupation currency, far in excess of occupation costs. They used these 

excess funds to finance the purchase of business properties and supplies in the occupied countries.”).

489 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209 (“A majority of jurists writing on the law of 

occupation and most military manuals on the subject approve the right of an occupant to regulate prices in occupied 

territory. Shortages of every kind of commodity, ruined or damaged crops, lack of imported goods, increased 

demands through requisitions or purchases by occupation forces – all these contribute to a rise in the general price 

level unless the occupant resorts to measures designed to maintain prices at a reasonable maximum.”).

490 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209-10 (“Yet an unscrupulous occupant may easily 

misuse his power over price controls to exploit the occupied territory to his own illegal advantage—as shown 

repeatedly during the Second World War.”).
839

XII – Non-Hostile Relations Between Belligerents

Chapter Contents

12.1 Introduction

12.2 Principle of Good Faith in Non-Hostile Relations

12.3 Methods for Communication Between Belligerents

12.4 The White Flag of Truce to Initiate Negotiations

12.5 Rules for Parlementaires

12.6 Military Passports, Safe-Conducts, and Safeguards

12.7 Cartels

12.8 Capitulations – Negotiated Instruments of Surrender

12.9 Capitulations – Subjects Usually Addressed

12.10 Capitulations – Violations and Denunciation

12.11 Armistices and Other Cease-Fire Agreements

12.12 Armistices – Subjects Usually Addressed

12.13 Armistices – Violations and Denunciation

12.14 U.N. Security Council Cease-Fires

12.1 INTRODUCTION

This Chapter addresses the legal principles for non-hostile relations between belligerents

and the basic mechanisms for implementing them.

More specifically, this Chapter addresses the rules for the protection of certain personnel 

engaged in non-hostile relations, such as parlementaires, and persons protected by military 

passports, safe-conducts, or safeguards. In addition, this Chapter addresses certain agreements 

between opposing belligerents, such as cartels, capitulations, and armistices.

12.1.1 Traditional Rule of Non-Intercourse During War. The traditional rule during 

international armed conflict is that, even without any special proclamation, all intercourse 

between the territories occupied by belligerent forces, including communication, transportation, 

and commerce, would cease.1

The traditional rule of non-intercourse reflects a belligerent’s authority under the law of 

war to limit and regulate intercourse between persons and territory controlled by or belonging to 

that belligerent and persons and territory controlled by or belonging to the enemy.2 For example, 

 1 See 1956 FM 27-10 (Change No. 1 1976) ¶449 (“All intercourse between the territories occupied by belligerent 

armies, whether by traffic, communication, travel, or in any other way, ceases. This is the general rule to be 

observed without special proclamation.”); LIEBER CODE art. 86 (“All intercourse between the territories occupied by 

belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be 

observed without special proclamation.”).

2 See Hamilton v. Dillin, 88 U.S. 73, 97 (1874) (“As before stated, the power of the government to impose such 

conditions upon commercial intercourse with an enemy in time of war as it sees fit is undoubted. It is a power 

which every other government in the world claims and exercises, and which belongs to the government of the 

United States as incident to the power to declare war and to carry it on to a successful termination. We regard the 
840

States may authorize their military commanders to limit travel and trade within their areas of 

operations for security purposes. During armed conflict, States have exercised their authority to 

limit intercourse with the enemy in order to avoid supporting the enemy’s war effort and in order 

to speak with one voice in communications with the enemy State.

In particular, the traditional rule of non-intercourse notifies a State’s nationals and other 

persons subject to its jurisdiction that they may be liable to punishment by that State under its 

domestic law and war powers if they communicate with or support the State’s enemies in war

without proper authorization.

3

Exceptions to the general rule of non-intercourse (such as communication with enemy 

forces or permission to trade or travel between territories that are controlled by forces hostile to 

one another) have been granted on behalf of individuals only with the approval of the 

Government or the highest military authority.4

12.1.1.1 Limitations on the Belligerent’s Authority to Regulate Intercourse. A 

belligerent’s authority to regulate intercourse between territory it controls and territory controlled 

by the enemy is subject to certain limitations.

Insofar as restrictions on travel and trade imposed by a belligerent affect neutral rights, 

such restrictions may be limited by the law of neutrality. An Occupying Power’s authority to 

control travel and trade during belligerent occupation is addressed by the law of occupation.5

Under the GC, however, protected persons in a belligerent’s home country, or in territory 

 

regulations in question as nothing more than the exercise of this power. It does not belong to the same category as 

the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as 

much so as the power to levy military contributions, or to perform any other belligerent act.”).

3 For example, 10 U.S.C. § 904 (“Any person who-- (1) aids, or attempts to aid, the enemy with arms, ammunition, 

supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence 

to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall 

suffer death or such other punishment as a court-martial or military commission may direct. This section does not

apply to a military commission established under chapter 47A of this title.”); Amos T. Akerman, Attorney General, 

Unlawful Traffic with Indians, Jul. 19, 1871, 13 OPINIONS OF THE ATTORNEY GENERAL 470, 471-72 (1873) (“But I 

observe that General Sherman, in his letter, refers to the parties apprehended by the military as having been captured 

‘while engaged in unlawful traffic with hostile Indians;’ and the papers submitted show that a portion of the property 

employed in this trade consisted of ammunition. Now, if the Indians to whom the captured persons were thus 

supplying ammunition, &c., were in open and notorious hostility to the United States at the time, and, therefore, 

properly came within the description of public enemies, the parties apprehended would seem to be amenable to trial 

and punishment by court-martial under the 56th article of war, which applies to persons who are not, as well as to 

persons who are, in the military service.”); LIEBER CODE art. 86 (“Contraventions of this rule [of non-intercourse] 

are highly punishable.”).

4 1956 FM 27-10 (Change No. 1 1976) ¶450 (“Exceptions to this rule, whether by safe-conduct, license to trade, 

exchange of mails, or travel from one territory into the other, are made on behalf of individuals only with the 

approval of the Government or the highest military authority.”); LIEBER CODE art. 86 (“Exceptions to this rule, 

whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from 

one territory into the other, can take place only according to agreement approved by the government, or by the 

highest military authority.”).

5 Refer to § 11.12 (Movement of Persons in Occupied Territory); § 11.23.4 (Regulation of External Trade).
841

occupied by a belligerent, are entitled to leave unless such departure is contrary to the interests of 

the State.

6

12.1.2 Necessity for Non-Hostile Relations. Despite the general rule of non-intercourse 

during war, the conduct of war and the restoration of peace require certain non-hostile relations 

between belligerents.7

12.1.2.1 Non-Hostile Relations to Facilitate Humanitarian Activities During 

Armed Conflict. Non-hostile relations, including local communication between belligerent 

forces, may be necessary to facilitate the conclusion and implementation of special agreements 

contemplated by the 1949 Geneva Conventions. These include:

• special agreements to facilitate the protection of the wounded, sick, shipwrecked, and 

medical personnel,

8 such as

o armistices or local arrangements to permit the removal, exchange, or transport of 

the wounded and sick;9

• special agreements to facilitate the protection of POWs,10 such as

o agreements to effect the direct repatriation or accommodation in neutral countries 

of certain seriously wounded and sick POWs during hostilities;

11 and

• special agreements to facilitate the protection of civilians,12 such as

o agreements to establish areas where civilians or the wounded and sick are 

protected.

13 

Relatedly, non-hostile relations, including local communication between belligerent 

forces, may also be necessary:

• to obtain the necessary consent for the appointment of Protecting Powers;

14

 6 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory); § 11.12.2 (Departure of 

Protected Persons Who Are Not Nationals of the State Whose Territory Is Occupied).

7 1956 FM 27-10 (Change No. 1 1976) ¶451 (“The conduct of war and the restoration of peace require certain 

nonhostile relations between belligerents.”).

8 Refer to § 7.1.1.2 (Special Agreements Under the GWS and GWS-Sea).

9 Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the 

Wounded).

10 Refer to § 9.1.2.2 (Special Agreements Under the GPW).

11 Refer to § 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities).

12 Refer to § 10.1.1.2 (Special Agreements Under the GC).

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

14 Refer to § 18.15.2 (Appointment of a Protecting Power).
842

• to establish safe-conduct protections for certain persons or property under the 1949 

Geneva Conventions;

15 and

• to conclude special agreements applicable to a non-international armed conflict to bring 

into effect treaty provisions that would normally only apply during international armed 

conflict.

16

12.1.2.2 Non-Hostile Relations to Facilitate the Restoration of Peace. Nonhostile relations, including local communication between belligerent forces, may also be 

important in facilitating the restoration of peace, including by facilitating:

• ceasefires or local armistices that implement a general armistice;

• armistices that are a prelude to a peace treaty;

17

• the permanent cessation of hostilities through a peace treaty;

• agreements on the repatriation of POWs or retained personnel after the cessation of 

hostilities;

18

• measures to protect civilians from the effects of minefields, mined areas, mines, boobytraps, and other devices, such as information sharing with another party or parties to the 

conflict;

19 and

• the provision of certain assistance to facilitate the marking and clearance, removal, or 

destruction of explosive remnants of war, in cases where a user of explosive ordnance 

that has become explosive remnants of war does not exercise control of the territory.20

12.2 PRINCIPLE OF GOOD FAITH IN NON-HOSTILE RELATIONS

Absolute good faith with the enemy must be observed as a rule of conduct, including in 

non-hostile relations between opposing belligerents.

21 In particular, in the context of non-hostile 

relations, the principle of good faith requires that:

• compacts between enemies, such as truces and capitulations, shall be faithfully adhered 

 15 Refer to § 12.6.3.3 (Safe-Conducts Contemplated by the 1949 Geneva Conventions).

16 Refer to § 17.3 (Special Agreements Between Parties to the Conflict).

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

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

19 Refer to § 6.12.12 (Obligations Arising After the Cessation of Active Hostilities).

20 Refer to § 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War From a Party’s 

Military Operations in Areas Outside Its Control).

21 Refer to § 5.21 (Overview of Good Faith, Perfidy, and Ruses).
843

to;

22

• no advantage not intended to be given by the adversary shall be taken;

23 and

• the means of conducting non-hostile relations (such as flags of truce) must not be 

misused.24

On the other hand, the principle of good faith does not prohibit belligerents from:

• continuing their military operations while negotiations are ongoing;

25 or 

• declining to respond to offers to negotiate, refusing offers to negotiate, or refusing 

specific offers from the adversary for reasons of military expediency.

26

12.3 METHODS FOR COMMUNICATION BETWEEN BELLIGERENTS

Belligerents may communicate with one another through a variety of methods, including:

• directly by telecommunications;

27

 22 Daniel Webster, Secretary of State, Letter to Waddy Thompson, Esq., Envoy Extraordinary and Minister 

Plenipotentiary of the United States to the Mexican Republic, Apr. 15, 1842, reprinted in THE DIPLOMATIC AND 

OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 321, 331 (1848) (“If there is one rule of the 

law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and 

capitulations, shall be faithfully adhered to; and their non-observance is denounced as being manifestly at variance 

with the true interest and duty; not only of the immediate parties, but of all mankind.”).

23 1956 FM 27-10 (Change No. 1 1976) ¶453 (“It is absolutely essential in all nonhostile relations that the most 

scrupulous good faith shall be observed by both parties, and that no advantage not intended to be given by the 

adversary shall be taken.”).

24 2004 UK MANUAL ¶10.2 (“Whenever there are non-hostile relations between parties to an armed conflict, those 

relations must be conducted with the utmost good faith and any agreement reached scrupulously observed. In 

particular, there should be no abuse of a flag of truce or emblems of identification in dealings between 

belligerents.”).

25 For example, Donald W. Boose, Jr., Fighting While Talking: The Korean War Truce Talks, OAH MAGAZINE OF 

HISTORY, 25, 27 (Spring 2000) (“The truce talks resumed on 26 April [1953], and the two sides quickly agreed on 

the broad outlines of a plan to deal with the POW issue through a Neutral Nations Repatriation Commission 

composed of the same members as the Neutral Nations Supervisory Commission, in addition to India. There were 

still unresolved issues, however. The U.S. leadership, losing patience with the slow pace of negotiations, now 

attempted to use military action to pressure the Chinese and North Koreans. In May U.S. aircraft attacked irrigation 

dams near Pyongyang, disrupting rail lines and roads and further straining the North Korean infrastructure. Then on 

20 May Eisenhower and his advisors decided that if no progress were made, the UNC would initiate a military 

offensive that might include attacks on China and the use of nuclear weapons.”).

26 Refer to § 12.5.2 (Refusal or Reception of a Parlementaire).

27 For example, James Reston, Ridgway in Offer; Key Figure in Truce Plan Receives a Visitor U.S. Asks Command 

of Reds to Parley, THE NEW YORK TIMES, Jun. 30, 1951 (“In accordance with Presidential instructions 

recommended by the National Security Council and dispatched from the Pentagon at 1:27 o’clock this afternoon, 

Gen. Matthew B. Ridgway of the United States broadcast the following message at 6 P.M. to ‘The Commander in 

Chief, Communist Forces in Korea’:”).
844

• through the traditional mechanism of a display of a flag of truce and the sending of 

parlementaires;

28

• in conferences between belligerent representatives in an agreed neutral zone;

29

• through international organizations, such as the United Nations;

• indirectly through another State, such as a Protecting Power;30 and

• indirectly through the ICRC or other impartial humanitarian organization.31

12.4 THE WHITE FLAG OF TRUCE TO INITIATE NEGOTIATIONS

In the past, the normal means of initiating negotiations between belligerents has been the 

display of the white flag of truce.32

12.4.1 Meaning of the White Flag—a Desire to Communicate. As a legal matter, the 

white flag, when used by military forces, indicates a desire to communicate with the enemy. The 

hoisting of a white flag has no other legal meaning in the law of war.33 

The hoisting of a white flag may indicate that the party hoisting it desires to open 

communication with a view to an armistice (e.g., to enable forces to collect the wounded) or a 

surrender.34 If hoisted during a military action by an individual combatant or a small party of 

combatants, it may signify merely that those persons or forces wish to surrender.35 Although the 

white flag has been used with this intent, the display of the white flag does not necessarily mean 

that the person or forces displaying it are prepared to surrender. Moreover, enemy forces in the 

immediate area might not have the same intent as the individual or forces displaying the white 

flag, especially where the display of the white flag was not authorized by the individual or 

 28 Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations); § 12.5 (Rules for Parlementaires).

29 Refer to § 12.5.5 (Neutral Zone and Other Appropriate Measures to Facilitate Negotiations).

30 For example, Acceptance of Germany’s Offer Concerning Prisoners of War, Apr. 23, 1945, 12 DEPARTMENT OF 

STATE BULLETIN 810 (Apr. 29, 1945) (“The Department of State and the War Department announced on April 23 

that the Government of the United States has accepted an offer of the German Government to leave in camps all 

prisoners of war as the Allies advance. The proposal of the German Government was made to the United States 

through the Swiss Government as protecting power.”).

31 1956 FM 27-10 (Change No. 1 1976) ¶452 (“One belligerent may communicate with another directly by radio, 

through parlementaires, or in a conference, and indirectly through a Protecting Power, a third State other than a 

Protecting Power, or the International Committee of the Red Cross.”).

32 1956 FM 27-10 (Change No. 1 1976) ¶458 (“In the past, the normal means of initiating negotiations between 

belligerents has been the display of a white flag.”).

33 1956 FM 27-10 (Change No. 1 1976) ¶458 (“The white flag, when used by troops, indicates a desire to 

communicate with the enemy. The hoisting of a white flag has no other signification in international law.”).

34 1956 FM 27-10 (Change No. 1 1976) ¶458 (“It may indicate that the party hoisting it desires to open 

communication with a view to an armistice or a surrender.”).

35 1956 FM 27-10 (Change No. 1 1976) ¶458 (“If hoisted in action by an individual soldier or a small party, it may 

signify merely the surrender of that soldier or party.”).
845

force’s commander.

12.4.2 Rules for the Party Displaying the White Flag. Forces displaying a flag of truce 

must show clearly that they intend to engage in non-hostile relations. They bear the burden of 

communicating their intent to the adversary.

To indicate that the hoisting of the white flag is authorized by its commander, the 

appearance of the flag should be accompanied or followed promptly by a complete cessation of 

fire from that side.36 

The commander authorizing the hoisting of the flag should also promptly send a 

parlementaire to communicate the commander’s intent.

37

12.4.2.1 Prohibition on Improper Use of the Flag of Truce. It is especially 

forbidden to make improper use of a flag of truce.

38 It would be improper to use a flag of truce 

to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no 

such intention.39

It is an abuse of the flag of truce if the force that sends a parlementaire does not halt and 

cease fire while the parlementaire is approaching, or is being received by, the other party.40

Improper use of a flag of truce also includes its use while engaging in attacks or in order 

to shield, favor, or protect one’s own military operations, or otherwise to impede enemy military 

operations.

41 For example, flags of truce may not be used surreptitiously to obtain military 

information, or with the purpose of obtaining time to effect a withdrawal, secure reinforcements, 

 36 1956 FM 27-10 (Change No. 1 1976) ¶458 (“To indicate that the hoisting is authorized by its commander, the 

appearance of the flag should be accompanied or followed promptly by a complete cessation of fire from that 

side.”); 1958 UK MANUAL ¶395 (“It is essential, however, that the troops who hoist the white flag to indicate a wish 

to enter into communication with the enemy, should halt and cease firing, for otherwise the enemy cannot be certain 

that the hoisting of the white flag is authorised.”).

37 1956 FM 27-10 (Change No. 1 1976) ¶458 (“The commander authorizing the hoisting of the flag should also 

promptly send a parlementaire or parlementaires.”).

38 HAGUE IV REG. art. 23(f) (it is especially forbidden “[t]o make improper use of a flag of truce”). Consider AP I 

art. 38(1)(a) (“It is also prohibited to misuse deliberately in an armed conflict other internationally recognized 

protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.”).

39 Cf. 10 U.S.C. § 950t (18) (“Any person subject to this chapter who uses a flag of truce to feign an intention to 

negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military 

commission under this chapter may direct.”).

40 1958 UK MANUAL ¶415 (“The improper use of a flag of truce is forbidden. It is an abuse of the flag of truce if the 

force which sends a parlementaire does not halt and cease fire whilst the parlementaire is approaching, or is being 

received by, the other party.”); 1956 FM 27-10 (Change No. 1 1976) ¶467 (“It is an abuse of the flag of truce, 

forbidden as an improper ruse under Article 23 (f), HR (par. 52), for an enemy not to halt and cease firing while the 

parlementaire sent by him is advancing and being received by the other party;”).

41 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).
846

resupply, or conduct other operations.

42

12.4.3 Rules for the Party to Whom the White Flag Is Displayed. A party is not required 

to cease firing or other military operations when a white flag is raised by the other side.43

It is essential to determine with reasonable certainty that the flag is shown by actual 

authority of the enemy commander before basing important action upon that assumption.44 For 

example, forces should not assume that all enemy forces in the locality intend to surrender and 

expose themselves to hostile fire based on the enemy’s display of a white flag.45 

Fire must not be directed intentionally on the person carrying the white flag or on persons

near him or her unless there is a clear manifestation of hostile intent by those persons.

46 

12.5 RULES FOR PARLEMENTAIRES

After the display of the white flag, a parlementaire would be sent to conduct 

negotiations, traveling under the display and protection of the white flag of truce.

12.5.1 The Parlementaire and Party. Parlementaires ordinarily are agents employed by 

commanders of belligerent forces in the field, to go in person within the enemy lines, for the 

 42 LIEBER CODE art. 114 (“If it be discovered, and fairly proved, that a flag of truce has been abused for 

surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a 

spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an 

especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as 

a spy.”); 1958 UK MANUAL ¶416 (“It is also an abuse of the flag of truce to use a white flag for the purpose of 

making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out 

operations under the protection granted by the enemy to the pretended flag of truce.”).

43 1956 FM 27-10 (Change No. 1 1976) ¶458 (“The enemy is not required to cease firing when a white flag is 

raised.”); LIEBER CODE art. 112 (“Firing is not required to cease on the appearance of a flag of truce in battle.”).

44 1956 FM 27-10 (Change No. 1 1976) ¶458 (“It is essential, therefore, to determine with reasonable certainty that 

the flag is shown by actual authority of the enemy commander before basing important action upon that 

assumption.”).

45 For example, 2004 UK MANUAL ¶10.5.2 footnote 10 (“A British officer was killed at Goose Green during the 

Falklands conflict 1982 when moving towards a white flag. The shots were not fired by those displaying the white 

flag, but by others in the vicinity.”); SPAIGHT, WAR RIGHTS ON LAND 92-93 (“At Spion-Kop, some of the British 

troops in an advanced trench on the mountain held up handkerchiefs in token of surrender, and the Boers came 

forward to take them prisoners; they were fired upon by the other British soldiers, and some of them and also some 

of the prisoners were shot. Presidents Kruger and Steyn protested against this ‘abuse of the white flag,’ but the 

protest cannot be upheld. For the particular men who put up the signal of surrender to have fired on their captors 

would have been treachery, but their comrades were not bound by their action; the surrender was not authorised and 

the main body of the British troops on the hill were perfectly entitled to disregard it and to fire both on their own 

men who surrendered and on the enemy disarming them.”).

46 1956 FM 27-10 (Change No. 1 1976) ¶461 (“Fire should not be intentionally directed on parlementaires or those 

accompanying them.”); 1958 UK MANUAL ¶396 (“Fire must not be directed intentionally on the person carrying the 

white flag or on persons near him.”).
847

purpose of communicating or negotiating openly and directly with the enemy commander.47

12.5.1.1 Parlementaire – Notes on Terminology. The term parlementaire is 

derived from “parley” and was adopted by governments at the First Hague Peace Conference in 

1899.

48 These provisions were repeated in the 1907 Hague IV Regulations.

Article 32 of the Hague IV Regulations provides that “a person is regarded as bearing a 

flag of truce who has been authorized by one of the belligerents to enter into communication 

with the other, and who advances bearing a white flag.”49 Although the word parlementaire has 

been translated as a person bearing a flag of truce, the parlementaire need not physically carry 

the white flag.50 

12.5.1.2 Authorization and Credentials of the Parlementaire. A parlementaire

must be authorized by a belligerent to enter into communications with the other side.51 To 

demonstrate the authorization to negotiate, a parlementaire must be duly authorized in a written 

instrument signed by the commander of his or her forces.52

12.5.1.3 Members of a Parlementaire Party. A parlementaire may come alone, or 

he or she may request to have others, such as an interpreter, accompany him or her. In the past, 

flag-bearers or drummers accompanied parlementaires to reduce the risk that the parlementaires

would be inadvertently attacked.53 In modern warfare, members of a parlementaire’s party may

include, for example, a driver and communications personnel, and they would take similar 

 47 1956 FM 27-10 (Change No. 1 1976) ¶459 (“Parlementaires are agents employed by commanders of belligerent 

forces in the field, to go in person within the enemy lines, for the purpose of communicating or negotiating openly 

and directly with the enemy commander.”).

48 1958 UK MANUAL ¶389 (“The usual agents in the non-hostile intercourse of belligerent armies are known as 

parlementaires.”); 1958 UK MANUAL ¶389 note 1 (“It has been thought desirable to adopt this term, for which the 

ancient verb ‘to parley’ would seem good authority, from the Hague Rules; it is current in other armies, in addition 

to the expression ‘flag of truce’. The use of the latter term by British manuals in the past to mean sometimes both 

the envoy and the emblem, sometimes only the envoy, and at other times the envoy and his attendants, has given rise 

to some confusion. The use of the expression ‘bearer of a flag of truce’ to signify the principal agent is also 

misleading, as he is seldom the actual bearer of the flag.”).

49 HAGUE IV REG. art. 32.

50 1914 RULES OF LAND WARFARE ¶235 note 1 (“The adoption of the word ‘parlementaire’ to designate and 

distinguish the agent or envoy seems absolutely essential in order to avoid confusion and because all other nations, 

including Great Britain, utilize the word. In the past this word has been translated at times to mean the agent or 

envoy only, at other times the agent and emblem, or both. To call the parlementaire ‘the bearer of a flag of truce’ is 

not in reality correct, because he seldom, if ever, actually carries it.”).

51 HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of the 

belligerents to enter into communication with the other, and who advances bearing a white flag.”).

52 1956 FM 27-10 (Change No. 1 1976) ¶462 (“Parlementaires must be duly authorized in a written instrument 

signed by the commander of the forces.”).

53 HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of the 

belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to 

inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany 

him.”).
848

measures to make their status and purpose clear to the other side.

54

12.5.2 Refusal or Reception of a Parlementaire. The commander to whom a flag of truce 

is sent is not in all cases obliged to receive it.55 A commander may decline to receive a 

parlementaire for reasons of military necessity, such as if the reception of the parlementaire

would interfere with the commander’s operations.

56 However, a belligerent may not declare 

beforehand, even for a specified period – except in case of reprisal for abuses of the flag of truce 

– that it will not receive parlementaires.

57 

A commander may declare the formalities and conditions upon which he or she will 

receive a parlementaire and fix the hour and place at which the parlementaire must appear.

58 

The receiving commander may set the details of the meeting, such as the time, place, number of 

persons accompanying the parlementaire, authorized method of transport (e.g., foot or vehicle), 

and the frequency of meetings if more than one will take place. For example, the receiving 

commander may limit the size of the parlementaire’s party and need not allow an unnecessary 

repetition of parlementaire visits.59

Although commanders may refuse to receive parlementaires and other enemy envoys 

seeking to negotiate, commanders may not refuse the unconditional surrender of the adversary or 

declare that they will refuse unconditional surrender.60

12.5.3 Duties and Liabilities of the Parlementaire. Persons who display a white flag 

during combat accept the risk that they might be inadvertently wounded or killed while 

attempting to communicate with opposing forces.61 Parlementaires bear the burden of 

 54 See also 2004 UK MANUAL ¶10.4 footnote 5 (“Although the reference here is to ‘trumpeter, bugler or drummer, 

the flag bearer and interpreter who may accompany him’, in modern warfare, the party is more likely to consist of a 

driver and radio operator, together with an interpreter. The interpreter will not necessarily be a member of the 

armed forces and may be a civilian. The white flag will most likely be attached to the vehicle conveying the 

party.”).

55 HAGUE IV REG. art. 33 (“The commander to whom a flag of truce is sent is not in all cases obliged to receive it.”). 

See also LIEBER CODE art. 111 (“The bearer of a flag of truce cannot insist upon being admitted. He must always be 

admitted with great caution. Unnecessary frequency is carefully to be avoided.”).

56 1958 UK MANUAL ¶398 (“The commander to whom a parlementaire is sent is not obliged to receive him in every 

case. There may be a movement in progress the success of which depends on secrecy, or owing to the state of the 

defences, it may be considered undesirable to allow an envoy to approach a besieged locality.”).

57 1956 FM 27-10 (Change No. 1 1976) ¶464 (“The present rule is that a belligerent may not declare beforehand, 

even for a specified period -- except in case of reprisal for abuses of the flag of truce -- that he will not receive 

parlementaires.”).

58 1956 FM 27-10 (Change No. 1 1976) ¶464 (“A commander may declare the formalities and conditions upon 

which he will receive a parlementaire and fix the hour and place at which he must appear.”).

59 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶464 (“An unnecessary repetition of visits need not be allowed.”); 

LIEBER CODE art. 111 (“Unnecessary frequency is carefully to be avoided.”).

60 Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given); § 5.9.3 (Persons Who Have 

Surrendered).

61 1956 FM 27-10 (Change No. 1 1976) ¶461 (“If, however, the parlementaires or those near them present 

themselves during an engagement and are killed or wounded, it furnishes no ground for complaint.”); LIEBER CODE
849

communicating their status to the enemy.62 They should take appropriate measures to help 

clarify their status to enemy forces. For example, the parlementaire’s party should move slowly 

and deliberately so that it is not inadvertently attacked.63

While within the lines of the enemy, the parlementaire must obey all instructions given 

to him or her. The parlementaire may be required to deliver his or her message to a subordinate 

of the commander.64

12.5.4 Rights of Inviolability of the Parlementaire. A parlementaire and members of the 

parlementaire’s party (e.g., an interpreter) have a right to inviolability.65 For example, it would 

be a serious violation of good faith to attack deliberately a parlementaire’s party that has been 

received and acknowledged.66

12.5.4.1 Security Measures Are Consistent With Inviolability. The receiving 

commander, however, may take all the necessary steps to prevent the envoy from taking 

advantage of his or her mission to obtain information.67 For example, the envoy and the envoy’s 

interpreter may be blindfolded or hooded for security purposes.68

12.5.4.2 Loss of Rights of Inviolability of Parlementaire. A parlementaire loses 

his or her rights of inviolability if it is proved in a clear and uncontestable manner that he or she 

has taken advantage of his or her privileged position to provoke or commit an act of treachery.

69 

Such acts of treachery include sabotage or the secret gathering of information about the 

 

art. 113 (“If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes 

no ground of complaint whatever.”).

62 See 1956 FM 27-10 (Change No. 1 1976) ¶461 (“It is the duty of the parlementaire to select a propitious moment 

for displaying his flag, such as during the intervals of active operations, and to avoid dangerous zones by making a 

detour.”); 1958 UK MANUAL ¶396 (“It is for the parlementaire to wait until there is a propitious moment, or to make 

a detour to avoid a dangerous zone.”).

63 See 1958 UK MANUAL ¶402 note 1 (“Unfortunate incidents may occur if the parlementaire arrives at or leaves the

enemy lines at speed as he may draw fire before he is recognised.”).

64 1956 FM 27-10 (Change No. 1 1976) ¶464 (“While within the lines of the enemy, the parlementaire must obey all 

instructions given him. He may be required to deliver his message to a subordinate of the commander.”).

65 HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of the 

belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to 

inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany 

him.”).

66 George H. Williams, Attorney General, The Modoc Indian Prisoners, Jun. 7, 1873, 14 OPINIONS OF THE 

ATTORNEY GENERAL 249, 250 (1875) (“According to the laws of war there is nothing more sacred than a flag of 

truce dispatched in good faith, and there can be no greater act of perfidy and treachery than the assassination of its 

bearers after they have been acknowledged and received by those to whom they are sent.”).

67 HAGUE IV REG. art. 33 (“[The commander to whom a flag of truce is sent] may take all the necessary steps to 

prevent the envoy taking advantage of his mission to obtain information.”).

68 SPAIGHT, WAR RIGHTS ON LAND 217-18 (“[I]t is no indignity for a parlementaire, however high his rank, to have 

his eyes bandaged.”).

69 HAGUE IV REG. art. 34 (“The envoy loses his rights of inviolability if it is proved in a clear and incontestable 

manner that he has taken advantage of his privileged position to provoke or commit an act of treachery.”).
850

adversary while under the adversary’s protection.

70 

A parlementaire does not commit an act of treachery if he or she reports what he or she 

observed in plain sight during his or her mission.71

12.5.4.3 Detention of Parlementaire. In case of abuse of a flag of truce, a 

commander to whom a flag of truce is sent has the right to detain the envoy temporarily.72

In addition to the right of detention for abuse of his or her position, a parlementaire may 

be detained for other imperative security reasons. For example, a parlementaire admitted during 

an engagement may be detained pending the conclusion of the immediate fighting.73 In addition, 

a parlementaire may be detained in case he or she has seen anything that may be detrimental to 

the enemy, or otherwise obtained such knowledge, or if the envoy’s departure would reveal 

information on the movement of forces.

74

A parlementaire should be detained only so long as circumstances imperatively require, 

and information regarding the parlementaire’s detention, as well as any other action against the 

parlementaire or against any member of the parlementaire’s party, should be sent to his or her 

commander.75

12.5.5 Neutral Zone and Other Appropriate Measures to Facilitate Negotiations. If it is 

anticipated that negotiations between belligerents may be prolonged, a neutralized area may by 

 70 1958 UK MANUAL ¶410 note 1 (“Examples of a parlementaire abusing his position are the making of sketch maps 

or taking photographs of defense positions and the secret gathering of information.”).

71 1958 UK MANUAL ¶408 (“A parlementaire is not, however, forbidden to observe, and afterwards report, what his 

enemy does not hide.”); SPAIGHT, WAR RIGHTS ON LAND 219 (“It is for the commander who receives the flag of 

truce to ensure that the bearer gains no information, whether by sight or speech, and if he fails to take the requisite 

precautions, it is palpably unjust to treat the envoy’s offense, for which his (the commander’s) contributory 

negligence is partly to blame, as the very grave offence of spying.”).

72 HAGUE IV REG. art. 33 (“The commander to whom a flag of truce is sent is not in all cases obliged to receive it. 

He may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information. In 

case of abuse, he has the right to detain the envoy temporarily.”).

73 LIEBER CODE art. 112 (“If the bearer of a flag of truce offer himself during an engagement, he can be admitted as 

a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the 

engagement.”).

74 1956 FM 27-10 (Change No. 1 1976) ¶465 (“In addition to the right of detention for abuse of his position, a 

parlementaire may be detained in case he has seen anything or obtained knowledge which may be detrimental to the 

enemy, or if his departure would reveal information on the movement of troops.”); 1958 UK MANUAL ¶412 

(“According to the Hague Rules a commander has the right to detain a parlementaire temporarily if the latter abuses 

his position. In addition, a commander has, by a customary rule of international law, the right to retain a 

parlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might have 

adverse consequences for the receiving forces, or if his departure would coincide with movements of forces whose 

destination or employment he might guess. See Hague Rules 33.”).

75 1956 FM 27-10 (Change No. 1 1976) ¶465 (“He should be detained only so long as circumstances imperatively 

demand, and information should be sent at once to his commander as to such detention, as well as of any other 

action taken against him or against his party.”).
851

agreement of the parties be set aside for the site of the negotiations.76 The belligerents may 

agree that no combat activity will take place within or over the area, and that forces will be 

detailed to maintain the security of the area.77 The area designated as neutral on maps 

interchanged by representatives of the belligerents may be marked with searchlights, balloons, 

and other devices to ensure that it will not be attacked.78

Other appropriate measures may also be agreed upon to facilitate negotiations. For 

example, special signals that the parlementaire’s party should give or routes that the 

parlementaire’s party must take may be agreed upon to help identify the parlementaire’s party to 

the opposing forces.

12.6 MILITARY PASSPORTS, SAFE-CONDUCTS, AND SAFEGUARDS

Persons within an area occupied by a belligerent may be protected from molestation or 

interference through military passports, safe-conducts, and safeguards. These devices are a 

matter of international law only when granted or posted by arrangement with the enemy or with a 

neutral State.

79

12.6.1 Military Passports, Safe-Conducts, and Safeguards – Notes on Terminology. The 

terms pass or permit may be used instead of passport. Pass has sometimes been used for a 

general permission to do certain things, while permit has sometimes been used like safe-conduct, 

to signify permission to do a particular thing.80

The terms military passport and safe-conduct have to some degree been used 

 76 1956 FM 27-10 (Change No. 1 1976) ¶468 (“If it is anticipated that negotiations between belligerents may be 

prolonged, a neutralized area may by agreement of the parties be set aside for the site of the negotiations.”). For 

example, Howard S. Levie, How it All Started – and How it Ended: A Legal Study of the Korean War, 35 AKRON 

LAW REVIEW 205, 223 (2002) (“Negotiations for an armistice began at Kaesong on July 10, 1951. Shortly 

thereafter, the negotiations were moved to Panmunjom at the insistence of the UNC because Kaesong, which had 

been between the two lines at the time of the negotiations of the liaison officers, had been occupied by the 

Communists and they presumed to dictate who could enter the area, while Panmunjom was located in a zone 

between territories occupied by the two sides. It was declared a neutral zone as were Kaesong (the Communist 

Armistice Delegation headquarters), Munsan-ni (the UNC Armistice Delegation headquarters), and the roads 

leading from each Delegation headquarters to Panmunjom.”).

77 1956 FM 27-10 (Change No. 1 1976) ¶468 (“The belligerents may agree that no combat activity will take place 

within or over the area and that forces will be detailed to maintain the security of the area.”).

78 1956 FM 27-10 (Change No. 1 1976) ¶468 (“The area designated as neutral on maps interchanged by 

representatives of the belligerents may be marked with searchlights, balloons, and other devices to insure that it will 

not be attacked.”).

79 1956 FM 27-10 (Change No. 1 1976) ¶454 (“Persons within an area occupied by a belligerent may be protected 

from molestation or interference through military passports, safe-conducts, and safeguards. These devices are a 

matter of international law only when granted or posted by arrangement with the enemy.”); 1958 UK MANUAL ¶495 

(“Safeguards, like passports and safe-conducts, fall within the scope of international law only when posted by 

arrangement with the enemy.”).

80 1958 UK MANUAL ¶490 (“The expressions ‘pass’ and ‘permit’ have in recent years been employed in the place of 

the older terms ‘passport’ and ‘safe-conduct,’ with, as a rule, the same distinction, although ‘pass’ has sometimes 

meant a general permission to do certain things, while ‘permit’ has been confined to permission to do a particular 

act.”).
852

interchangeably, but military passport generally has been used in a broader sense than safeconduct.

81

Ultimately, however, the purpose of the document will be more important than the 

nomenclature in deciding the nature of the document issued.82

12.6.2 Military Passport. A military passport is a document issued by order of a 

commander of belligerent forces, authorizing a person or persons named therein residing or 

sojourning within territory occupied by such forces to travel unmolested within such territory, 

with or without permission to pass, or to pass and return by designated routes through the lines, 

subject to such further conditions and limitations as the commander may prescribe.83

Unlike a passport for peacetime travel, such as a passport issued by the U.S. State 

Department, a military passport would be issued under a commander’s authority to regulate 

commerce and travel within territory controlled by his or her forces.

84

12.6.3 Safe Conduct. Documents like passports, issued by the same authority and for 

similar purposes to persons residing or traveling outside of the occupied areas who desire to 

enter and remain within or pass through such areas, are called safe-conducts.85 Similar 

documents issued by the same authority to persons residing within or without the occupied areas

to permit them to carry specified goods to or from designated places within those areas, and to 

engage in trade otherwise forbidden by the general rule of non-intercourse, are also called safeconducts.86 Safe-conducts for goods in which the grantee is given a continuing right for a 

 81 SPAIGHT WAR RIGHTS ON LAND 230 (“A ‘safe-conduct’ or ‘passport’ is a written authority issued by a 

commander to one or more individuals, allowing him or them to pass through districts occupied by his forces. The 

terms appear to be convertible, though some would make the ‘passport’ confer a more extended liberty of movement 

than the ‘safe-conduct,’ which they would confine to an authority to come to a specified place for a specified 

object.”).

82 2004 UK MANUAL ¶10.35.1 (“Arrangements are sometimes made between a military commander and an 

individual national or group of nationals belonging to the adverse party or to a neutral state. Such arrangements may 

be in the form of passports or safe conducts. Nomenclature is not significant in deciding the nature of the document 

issued. In fact, occasionally, the term ‘pass’ or ‘permit’ has been used. The decisive factor is the purpose for which 

the document has been issued, and not its terminology.”).

83 1956 FM 27-10 (Change No. 1 1976) ¶455 (“A military passport is a document issued by order of a commander 

of belligerent forces, authorizing a person or persons named therein, residing or sojourning within territory occupied 

by such forces, to travel unmolested within such territory, with or without permission to pass, or to pass and return, 

by designated routes, through the lines, subject to such further conditions and limitations as the commander may 

prescribe.”).

84 Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations); 

§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).

85 1956 FM 27-10 (Change No. 1 1976) ¶456 (“Documents like passports, issued by the same authority and for 

similar purposes, to persons residing or sojourning outside of the occupied areas, who desire to enter and remain 

within or pass through such areas, are called safe-conducts.”).

86 1956 FM 27-10 (Change No. 1 1976) ¶456 (“Similar documents, issued by the same authority, to persons residing 

within or without the occupied areas, to permit them to carry specified goods to or from designated places within 

those areas, and to engage in trade otherwise forbidden by the general rule of nonintercourse, are also called safeconducts.”).
853

prescribed period, or until further orders, to engage in the specified trade, are sometimes called 

licenses to trade.87

12.6.3.1 Safe-Conduct Pass for Ambassadors and Diplomatic Agents of Neutral 

Governments Accredited to the Enemy. Ambassadors and other diplomatic agents of neutral 

governments accredited to the opposing party to the conflict may receive a safe-conduct pass 

through territory under the opposing force’s control, unless there are military or other security 

reasons to the contrary, including the safety of the personnel in question, and unless they may 

reach their destination conveniently by another route.88 There is no international law 

requirement, however, for issuing such a safe-conduct pass; such passes usually would be 

granted by national-level authorities and not subordinate officers.89

12.6.3.2 Licenses to Trade. Licenses to trade must, as a general rule, emanate 

from the supreme authority of the State.90 In an international armed conflict, a State controlling 

territory of the enemy may grant licenses to trade that relax its prohibitions on trading with the 

enemy.

91

Licenses to trade issued by military authorities may be either general or special. A 

general license generally or partially relaxes the exercise of the rights of war in regard to trade in 

relation to any community or individuals liable to be affected by their operation.92 A special 

license is one given to individuals for a particular voyage or journey for the importation or 

exportation of particular goods.93

12.6.3.3 Safe-Conducts Contemplated by the 1949 Geneva Conventions. Certain 

safe-conduct protection may be granted by special agreements contemplated in the 1949 Geneva 

 87 1956 FM 27-10 (Change No. 1 1976) ¶456 (“Safe-conducts for goods in which the grantee is given a continuing 

right for a prescribed period, or until further orders, to engage in the specified trade, are sometimes called licenses to 

trade.”); 1958 UK MANUAL ¶489 (“A safe-conduct may, however, also be given for goods, and it then comprises 

permission for such good to be carried unmolested from or to a certain place, for instance from or into a besieged 

town.”).

88 1956 FM 27-10 (Change No. 1 1976) ¶456 (“Ambassadors and other diplomatic agents of neutral powers, 

accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there 

are military reasons to the contrary and unless they may reach the place of their destination conveniently by another 

route.”); LIEBER CODE art. 87 (“Ambassadors, and all other diplomatic agents of neutral powers, accredited to the 

enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military 

reasons to the contrary, and unless they may reach the place of their destination conveniently by another route.”).

89 1956 FM 27-10 (Change No. 1 1976) ¶456 (“There is, however, no legal requirement that such safe-conducts be 

issued. Safe-conducts of this nature are usually given by the supreme authority of the State and not by subordinate 

officers.”); LIEBER CODE art. 87 (“It implies no international affront if the safe-conduct is declined. Such passes are 

usually given by the supreme authority of the State, and not by subordinate officers.”).

90 1914 RULES OF LAND WARFARE ¶281 note 1 (“Licenses to trade must, as a general rule, emanate from the 

supreme authority of the State.”).

91 Refer to § 12.1.1 (Traditional Rule of Non-Intercourse During War).

92 1914 RULES OF LAND WARFARE ¶281 (“A general license relaxes the exercise of the rights of war, generally or 

partially, in relation to any community or individuals liable to be affected by their operation.”).

93 1914 RULES OF LAND WARFARE ¶281 (“A special license is one given to individuals for a particular voyage or 

journey for the importation or exportation of particular goods.”).
854

Conventions. Such agreements include:

• agreements for the removal and passage of certain personnel, such as vulnerable civilians, 

from besieged areas;

94

• agreements for the passage of consignments;95

• agreements for the removal or transport of the wounded and sick;96

• agreements for the passage of medical aircraft for the transport of the military or civilian 

wounded and sick;97

• agreements for the safe passage of chartered medical transport ships;98 and

• agreements for the special transport of relief shipments for POWs or civilian internees.99

12.6.4 Safeguard. A safeguard may refer to a detachment of forces posted for the 

protection of, or a written instrument affording protection by a belligerent to, enemy or neutral 

persons or property.

A safeguard falls within the law of war, however, only when granted and posted by 

arrangement with the enemy or a neutral. For example, guards or written orders posted by a 

belligerent for the protection of its own personnel or property would not be governed by the law 

of war.100

The effect of a safeguard is to pledge the honor of the nation that the person or property 

will be respected by its armed forces.101 It does not commit the government to its protection or 

defense against attacks by enemy armed forces or other hostile elements.

Safeguards have been used to protect cultural property or other civilian property or 

 94 Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular 

Personnel, the Wounded and Sick, and Medical Personnel).

95 Refer to § 5.19.3 (Passage of Relief Consignments).

96 Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the 

Wounded).

97 Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

98 Refer to § 7.13 (Chartered Medical Transport Ships).

99 Refer to § 9.20.5 (Special Means of Transport of Shipments to POWs); § 10.23.5 (Special Means of Transport of 

Shipments to Internees).

100 MANUAL FOR COURTS-MARTIAL IV-39 (¶26.c.(1)) (2012) (“A safeguard is not a device adopted by a belligerent 

to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater 

of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a 

commander takes those actions to protect enemy or neutral persons or property.”).

101 1956 FM 27-10 (Change No. 1 1976) ¶457 (“The effect of a safeguard is to pledge the honor of the nation that 

the person or property shall be respected by the national armed forces.”).
855

personnel meriting special protection.

102

12.6.4.1 Personnel Serving as a Safeguard. A safeguard is a detachment, guard, 

or detail posted by a commander for the protection of persons, places, or property of the enemy 

or of a neutral.103

Combatants serving as safeguards occupy a protected status.104 They may not be 

attacked, and it is customary to send them back, together with their equipment and arms, to their 

own armed forces when the locality is occupied by the enemy and as soon as military exigencies 

permit.105 

12.6.4.2 Written Safeguard. The term safeguard also refers to a written order left 

by a commander with an enemy subject, or posted upon enemy property, for the protection of 

that person or property.106 It is usually directed to the succeeding commander and requests a 

grant of protection.

107

12.6.4.3 Uniform Code of Military Justice Offense of Forcing a Safeguard. The 

violation of a safeguard is a serious violation of the law of war.108 The Uniform Code of 

Military Justice makes forcing a safeguard punishable.

109 “Forcing a safeguard” means to 

perform an act or acts in violation of the protection of the safeguard.110 

12.6.5 Revocation of Passports, Safe-Conducts, and Similar Documents. In general,

passports, as well as safe-conducts, may be revoked for good reasons of military expediency by 

 102 For example, SPAIGHT, WAR RIGHTS ON LAND 231 (“The object of a safeguard is generally to protect museums, 

historic monuments or the like; occasionally to show respect for a distinguished enemy, as in the case of the 

safeguard which McClellan placed over Mrs. R. E. Lee’s residence, White House, Virginia, in 1862. When allies 

invaded France in 1814, the Emperor Alexander of Russia honoured himself and Poland by his graceful act in 

assigning a guard of honour of Polish soldiers to protect the house of Kosciusko -- then living, almost as a peasant, 

near Troyes -- from pillage and contribution.”).

103 1956 FM 27-10 (Change No. 1 1976) ¶457 (“A safeguard is a detachment, guard, or detail posted by a 

commander for the protection of persons, places, or property of the enemy, or of a neutral.”).

104 1956 FM 27-10 (Change No. 1 1976) ¶457 (“Soldiers on duty as safeguards occupy a protected status.”).

105 1956 FM 27-10 (Change No. 1 1976) ¶457 (“They may not be attacked, and it is customary to send them back, 

together with their equipment and arms, to their own army when the locality is occupied by the enemy and as soon 

as military exigencies permit.”).

106 1956 FM 27-10 (Change No. 1 1976) ¶457 (“The term also includes a written order left by a commander with an 

enemy subject or posted upon enemy property for the protection of the individual or property concerned.”).

107 1956 FM 27-10 (Change No. 1 1976) ¶457 (“It is usually directed to the succeeding commander and requests the 

grant of protection.”).

108 1956 FM 27-10 (Change No. 1 1976) ¶457 (“The violation of a safeguard is a grave violation of the law of war 

and, if committed by a person subject to the Uniform Code of Military Justice, is punishable under Article 102 

thereof with death or such other punishment as a court-martial may direct.”).

109 See 10 U.S.C. § 902 (“Any person subject to this chapter who forces a safeguard shall suffer death or such other 

punishment as a court-martial may direct.”).

110 MANUAL FOR COURTS-MARTIAL IV-39 (¶26.c.(2)) (2012) (“‘Forcing a safeguard’ means to perform an act or acts 

in violation of the protection of the safeguard.”).
856

the person who issued them or that person’s superior officer. Revocation must never be used as 

a means of detaining the holder, who is always allowed to withdraw in safety.111

In addition, if the holder commits any wrongful act, such as using the opportunity given 

by a passport or safe-conduct to obtain military information or if the holder exceeds its terms, the 

privilege may be withdrawn.112

12.7 CARTELS

In its narrower sense, a cartel is an agreement entered into by opposing belligerents for 

the exchange of POWs.113 In its broader sense, it is any convention concluded between 

belligerents for the purpose of arranging or regulating certain kinds of non-hostile intercourse 

that would otherwise be prohibited by reason of the existence of the armed conflict (e.g., postal 

communication or trade in certain goods or commodities).114 

Both parties to a cartel are honor bound to observe its provisions scrupulously. A cartel 

is voidable by a party upon definite proof that it has been intentionally violated in an important 

particular by the other party.115

12.8 CAPITULATIONS – NEGOTIATED INSTRUMENTS OF SURRENDER

12.8.1 Definition of Capitulation. A capitulation is an agreement (sometimes with certain 

conditions) entered into between commanders of belligerent forces for the surrender of a body of 

forces, a fortress, or other defended locality, or of a district of the theater of operations.116 For 

 111 1958 UK MANUAL ¶493 (“Passports, as well as safe-conducts, may be revoked for good reasons of military 

expediency by the person who issued them or his superior officer. Until revoked, however, they are binding not 

only upon the person who granted them, but also upon his successors. The reasons for revocation need not be given, 

but revocation must never be used as a means of detaining the holder, who is always allowed to withdraw in safety. 

Such passports and safe-conducts as have been granted only for a limited time cease to be valid with the expiration 

of the period designated.”).

112 1958 UK MANUAL ¶494 (“If the holder commits any wrongful act, such as using the opportunity given by a 

passport or safe-conduct to obtain military information or if he exceeds its terms, the privilege may be withdrawn.”).

113 Refer to § 9.35.1 (Exchange of POWs During Hostilities Through Cartel Agreements).

114 1956 FM 27-10 (Change No. 1 1976) ¶469 (“In its narrower sense, a cartel is an agreement entered into by 

belligerents for the exchange of prisoners of war. In its broader sense, it is any convention concluded between 

belligerents for the purpose of arranging or regulating certain kinds of nonhostile intercourse otherwise prohibited 

by reason of the existence of the war.”).

115 1956 FM 27-10 (Change No. 1 1976) ¶469 (“Both parties to a cartel are in honor bound to observe its provisions 

with the most scrupulous care, but it is voidable by either party upon definite proof that it has been intentionally 

violated in an important particular by the other party.”).

116 1956 FM 27-10 (Change No. 1 1976) ¶470 (“A capitulation is an agreement entered into between commanders of 

belligerent forces for the surrender of a body of troops, a fortress, or other defended locality, or of a district of the 

theater of operations.”); 1958 UK MANUAL ¶462 (“Capitulations are agreements entered into between the 

commanders of armed forces or belligerents concerning the terms of surrender of a body of troops, of a defended 

town or place, or of a particular district of the theatre of war. Surrenders of territory are sometimes designated as 

evacuations.”); SPAIGHT, WAR RIGHTS ON LAND 249 (“A capitulation is a military convention which puts an end, 

with or without conditions, to the resistance of a body of troops shut up in a fortress or surrounded in the field.”).
857

example, a capitulation agreement could involve the surrender of a small unit, such as a squad, 

platoon, company, or battalion, or the surrender of larger forces, such as a division or corps.117

The surrender of military forces also may be arranged between belligerents at national 

levels without the involvement of military commanders, and possibly through third parties. A 

capitulation agreement may be negotiated between opposing military forces in local 

implementation of a surrender negotiated at national levels.

12.8.1.1 Capitulation Compared to Armistice. A capitulation surrenders the 

capitulating unit, while an armistice suspends fighting between opposing forces. 

12.8.1.2 Capitulation Compared to Unconditional Surrender. A capitulation is a 

surrender pursuant to an agreement. A surrender may be effected without resort to a capitulation

agreement.

118 For example, individuals or units may surrender themselves unconditionally to the 

opposite side without a specific capitulation agreement.

119

On the other hand, an unconditional surrender may be effected through a capitulation 

instrument.

120 Such an instrument would lack any conditions on the surrender, but may specify 

the way in which the surrender is to be implemented or may clarify for all concerned that the 

surrender is to be conducted on an unconditional basis.

12.8.2 Authority of Commanders to Conclude Capitulation Agreements. Commanders 

are generally presumed to have the authority to conclude capitulation agreements with respect to 

forces under their command and areas under their control.

121 For example, if a commander of 

military forces concludes that continued fighting has become impossible and is unable to 

communicate with his or her superiors, under the law of war he or she may assume that he or she 

 117 For example, Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF 

INTERNATIONAL LAW 561, 568 (2003) (“As of this writing, at the end of April 2003, only a few capitulation 

agreements have been signed. All of them were entered into after combat began, instead of before. Most 

noteworthy, Colonel Curtis Potts, Commander of the Fourth Brigade of the Third Infantry Division, entered into a 

capitulation agreement with Iraqi General Mohamad Jarawi for the surrender of the Iraqi Army’s Anbar sector 

command, which encompassed sixteen thousand soldiers.”).

118 1956 FM 27-10 (Change No. 1 1976) ¶470 (“A surrender may be effected without resort to a capitulation.”).

119 1956 FM 27-10 (Change No. 1 1976) ¶478 (“An unconditional surrender is one in which a body of troops gives 

itself up to its enemy without condition. It need not be effected on the basis of an instrument signed by both parties. 

Subject to the restrictions of the law of war, the surrendered troops are governed by the directions of the State to 

which they surrender.”).

120 For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (“We hereby proclaim the 

unconditional surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese 

armed forces and all armed forces under Japanese control wherever situated.”); German High Command, Act of 

Military Surrender, May 7, 1945, 59 STAT. 1857, 1858 (“1. We the undersigned, acting by authority of the German 

High Command, hereby surrender unconditionally to the Supreme Commander, Allied Expeditionary Force and 

simultaneously to the Soviet High Command all forces on land, sea, and in the air who are at this date under German 

control.”).

121 1956 FM 27-10 (Change No. 1 1976) ¶472 (“Subject to the limitations hereinafter indicated, the commander of 

troops is presumed to be duly authorized to enter into capitulations.”).
858

has authority to surrender his or her forces or position.122

However, a commanding officer’s powers generally do not extend beyond the forces and 

territory under his or her command.123 Thus, a commander may not surrender forces that are not 

under his or her command. Similarly, unless so authorized by his or her government, a 

commander lacks the authority to bind his or her government to a permanent cession of the place 

or places under his or her command, to surrender sovereignty over territory, or to agree to other 

terms of a political nature or such as will take effect after the termination of hostilities.124 

However, capitulation agreements that have been concluded by political authorities may include 

such terms.125

A State is not bound by the terms of a capitulation agreement that it has not authorized its 

commanders to conclude and may repudiate such terms.

126 For example, a State would not be 

bound to honor political conditions accepted by a capitulating commander or by a commander 

accepting capitulation, if those commanders lack such authority.

127

12.8.2.1 Surrenders Contrary to Domestic Law or Superior Orders. The fact that 

a commander surrenders in violation of orders or the law of his or her own State does not impair 

 122 1956 FM 27-10 (Change No. 1 1976) ¶472 (“In the case of a commander of a military force of the United States, 

if continued battle has become impossible and he cannot communicate with his superiors, these facts will constitute 

proper authority to surrender.”).

123 1956 FM 27-10 (Change No. 1 1976) ¶472 (“A commanding officer’s powers do not extend beyond the forces 

and territory under his command.”); 1958 UK MANUAL ¶466 (“The competence of a commander to accept 

conditions of capitulation is limited to the troops immediately under his command and does not necessarily extend to 

detached forces.”).

124 1956 FM 27-10 (Change No. 1 1976) ¶472 (“Unless so authorized by his government, he does not possess power 

to bind his government to a permanent cession of the place or places under his command, or to any surrender of 

sovereignty over territory, or to any cessation of hostilities in a district beyond his command, or to agree to terms of 

a political nature or such as will take effect after the termination of hostilities.”); Trial of Hans Albin Rauter, 

Judgment, XIV U.N. LAW REPORTS 89, 125 (Netherlands Special Court in ’S-Gravenhage (The Hague), May 4, 

1948) (“According to international law a capitulation treaty is a pact between commanders of belligerent forces for 

the surrender of certain troops or certain parts of the country, towns or fortresses, and as such must be scrupulously 

fulfilled; the commander who concludes such a pact cannot, however, be considered empowered to bind his 

government to a permanent cession of territory, to a cessation of hostilities in territories which do not come under 

his command or, in general, to provisions of a political nature; such provisions are binding in a capitulation treaty 

only if they are ratified by the governments of both belligerents.”).

125 1956 FM 27-10 (Change No. 1 1976) ¶473 (“The surrender of a place or force may also be arranged by the 

political authorities of the belligerents without the intervention of the military authorities. In this case the 

capitulation may contain other than military stipulations.”).

126 1958 UK MANUAL ¶467 (“Similarly, the competence of a commander to grant conditions of capitulation is 

limited to those the fulfilment of which depends entirely upon the forces under his command. If he agrees, without 

the instruction of his government, to conditions the granting of which is not implied in his powers, or the fulfilment 

of which depends upon forces other than his own, and upon superior officers, the conditions may be repudiated.”).

127 WINTHROP, MILITARY LAW & PRECEDENTS 787 (“A capitulation is of course subject to be disapproved and 

annulled by the Government of either commander. Thus the Sherman-Johnston capitulation of April, 1865, was 

repudiated by the Government at Washington because of its assuming to deal with political issues.”).
859

the validity of the surrender.128 Commanders who surrender in violation of orders or the law of 

their own State may be punished by their State.

Under the Code of Conduct for U.S. armed forces, a commander must never surrender 

the members of his or her command while they still have the means to resist.

129 Under the

Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compelling 

or attempting to compel a commander to surrender or striking colors or flag to an enemy without 

proper authority is punishable.

130

12.8.3 Rules of Military Honor. Capitulations agreed upon between belligerents must 

take into account the rules of military honor.131

Conditions involving unnecessary disgrace or ignominy should not be insisted upon.132 

Capitulations may include the right of the capitulating forces to surrender with colors displayed 

or other indications of professional respect for the capitulating forces.133 For example, it may be 

appropriate to allow surrendering officers to keep their side arms.134

Even if the capitulation does not explicitly have such provisions, the capitulation 

agreement should be executed with honor and respect for the adversary. Treating the adversary 

honorably diminishes psychological stigma from capitulation and thereby provides an incentive 

for the adversary to capitulate rather than fight on without any chance of success.

12.8.4 Form of Capitulation Agreement or Instrument. There is no specified form for 

capitulation instruments. They may be concluded either orally or in writing, but in order to avoid 

disputes, they should be reduced to writing. The agreement should contain in precise terms 

every condition to be observed on either side, excepting such conditions as are clearly imposed 

by the law of war. Details of time and procedure should be prescribed in exact and unequivocal 

language. Even in case of an unconditional surrender, when the terms are dictated by the victor, 

they should nevertheless be embodied in a written capitulation as soon as practicable.135

 128 1956 FM 27-10 (Change No. 1 1976) ¶472 (“The fact that any commander surrenders in violation of orders or the 

law of his own State does not impair the validity of the surrender.”).

129 Refer to § 9.39.1.2 (Code of Conduct – Article II).

130 Refer to § 9.39.1.2 (Code of Conduct – Article II).

131 HAGUE IV REG. art. 35 (“Capitulations agreed upon between the contracting parties must take into account the 

rules of military honour.”).

132 WINTHROP, MILITARY LAW & PRECEDENTS 786 (“Capitulation. This is an agreement for the surrender of an 

army, or of a fortified place, of which the terms are settled by the belligerent commanders. In the Project of the 

Brussels Conference it is prescribed that ‘these conditions should not be contrary to military honor.’ That is to say, 

conditions involving unnecessary disgrace or ignominy should not be insisted upon.”).

133 1958 UK MANUAL ¶475 (“The expression ‘with the honors of war,’ which is sometimes used in capitulations, is 

usually construed to include the right to march out with colors displayed, bayonets fixed, etc., but the details of such 

arrangements should be precisely stated in the articles [of capitulation].”).

134 Refer to § 12.9.2.2 (Disarmament of Surrendered Forces).

135 1956 FM 27-10 (Change No. 1 1976) ¶474 (“There is no specified form for capitulations. They may be 

concluded either orally or in writing, but in order to avoid disputes, they should be reduced to writing. The 
860

12.8.5 General Effect of Capitulation. The general effect of concluding a capitulation 

agreement is that of an unconditional surrender. In other words, absent specific terms in the 

capitulation agreement to the contrary, the capitulation agreement should be understood to create 

the effect of an unconditional surrender by the capitulating party.

136

The capitulating party must generally cease operations and maintain the military status 

quo at the time in which the capitulation becomes effective.137 For example, the capitulating 

forces must not engage in offensive operations against opposing forces.

138 Similarly, although 

forces may destroy their own weapons and intelligence information to prevent them from falling 

into the hands of the enemy before they capitulate, after the capitulation is effective, the 

capitulating forces must abstain from all destruction and damage to their own facilities and 

equipment, unless expressly permitted by the capitulation agreement.139 The capturing side is 

free to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, and 

military equipment of the capitulating side.140

12.9 CAPITULATIONS – SUBJECTS USUALLY ADDRESSED

In general, a capitulation agreement is understood to have the effect of an unconditional 

surrender under the law of war. However, specific topics may be addressed in the capitulation 

agreement that attach conditions to the surrender or specify the way in which the surrender is to 

be effected.

12.9.1 Scope of Surrendered Forces and Territory and Time of Surrender. The 

capitulation agreement may specify the force or territory that is surrendered and the exact time 

when the surrender is to take effect. If a place or area is surrendered, provisions relative to the 

withdrawal of the defenders from it and the entering into possession of it by the victorious forces

may also be specified in the agreement.

A commander’s competence to capitulate is limited to forces under his or her 

 

agreement should contain in precise terms every condition to be observed on either side, excepting such conditions 

as are clearly imposed by the laws of war. Details of time and procedure should be prescribed in the most exact and 

unequivocal language. Even in case of an unconditional surrender, when the terms are dictated by the victor, they 

should nevertheless be embodied in a written capitulation as soon as practicable.”).

136 Refer to § 5.9.3 (Persons Who Have Surrendered).

137 SPAIGHT, WAR RIGHTS ON LAND 253-54 (“The same principles which apply to the matériel of a fortress which 

has capitulated are applicable also in the case of the personnel. Once the capitulation is signed, the position is 

stereotyped and fixed; the status quo of the moment of signature must be honourably maintained. The victorious 

belligerent is justified in expecting that not only the matériel but the personnel of the capitulating force shall be 

handed over to him in accordance with the terms of the convention.”).

138 Refer to § 5.9.3.2 (Clear and Unconditional).

139 SPAIGHT, WAR RIGHTS ON LAND 251-52 (“A commander who has brought a fortress to the point of capitulating, 

may make the non-destruction of property during the negotiations a condition for granting better terms, and it may 

suit the besieged’s interests to meet him in the matter. In the absence of such a special arrangement, the 

commandant has a perfect right to dispose as he chooses of his matériel up to the moment of the signing of the act of 

capitulation.”).

140 Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).
861

command.141 To avoid misunderstandings, capitulation should state the forces to be surrendered 

and to what extent detached forces and personnel are included in the surrender of the main 

body.142

12.9.2 Disposition of Surrendered Forces. The capitulation instrument may specify the 

movements and administration of the surrendered forces after the surrender. 

In general, surrendering military forces and others entitled to POW status who fall into 

the power of the enemy during international armed conflict become POWs under the GPW. 

Similarly, the disposition of surrendered medical personnel and the wounded and sick belonging 

to the surrendered party would be addressed by the GWS and GWS-Sea. Insofar as matters are 

addressed by those treaties, there is little need for similar provisions in a capitulation instrument. 

However, special circumstances, such as inability of the victor to guard, evacuate, and 

maintain large numbers of POWs or to occupy the area in which enemy military forces are 

present, may justify the victorious commander in allowing the defeated force to remain in its 

present positions, to withdraw, or to disperse after having been disarmed and having given their 

paroles, provided that the giving of paroles is not forbidden by the laws of their own country and 

that they are willing to give their paroles.143

12.9.2.1 Orders Given by the Victor. It is normally stipulated that the orders of 

the victorious commander will be scrupulously carried out by the surrendered forces and that 

those who fail to comply with such orders or with the terms of the surrender itself may be 

punished.144

12.9.2.2 Disarmament of Surrendered Forces. Normally provisions are included 

to govern the disposition of enemy arms, equipment, and other property in the hands of the force 

 141 Refer to § 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).

142 1958 UK MANUAL ¶466 (“To avoid misunderstandings, capitulations should invariably state to what extent 

detached forces and outlying defences are included in the surrender of the main body.”).

143 1956 FM 27-10 (Change No. 1 1976) ¶475b (“However, special circumstances, such as inability of the victor to 

guard, evacuate, and maintain large numbers of prisoners of war or to occupy the area in which enemy military 

forces are present, may justify the victorious commander in allowing the defeated force to remain in its present 

positions, to withdraw, or to disperse after having been disarmed and having given their paroles, provided that the 

giving of paroles is not forbidden by the laws of their own country and that they are willing to give their paroles (see 

par. 185).”).

144 1956 FM 27-10 (Change No. 1 1976) ¶475j (“Orders given by the victor. It is normally stipulated that the orders 

of the victorious commander will be scrupulously carried out by the surrendered forces and that those who fail to 

comply with such orders or with the terms of the surrender itself will be severely punished.”). For example, 

Instrument of Surrender of all German armed forces in Holland, in North West Germany, including all islands, and 

in Denmark, May 4, 1945, ¶¶3-4, reprinted in The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, 

I U.N. LAW REPORTS 55, 57 (British Military Court Held at Hamburg, Germany, Feb. 12-13, 1946) (“3. The German 

Command to carry out at once, and without argument or comment, all further orders that will be issued by the Allied 

Powers on any subject. 4. Disobedience of orders, or failure to comply with them, will be regarded as a breach of 

these surrender terms and will be dealt with by the Allied Powers in accordance with the accepted laws and usages 

of war.”).
862

that has surrendered. Officers have sometimes been allowed to retain their side arms.

145 In 

addition, POWs are allowed to keep certain articles under the GPW.146

12.9.2.3 Prohibitions on Acts of Destruction by the Surrendered Forces. 

Although a capitulation, like an unconditional surrender, generally has the effect of prohibiting 

acts of destruction by surrendered forces, the capitulation may also specifically prohibit 

destruction by the surrendered forces of their materiel or installations, or communications, 

transportation facilities, and other public utilities in the area concerned.

12.9.3 Disposition of Detainees Held by the Surrendered Forces. The disposition of 

POWs, civilian internees, and other persons held in the custody of the surrendered forces may be 

addressed in a capitulation.147

12.9.4 Minefields and Other Defensive Measures. The provision of facilities and of 

information on such matters as minefields and other defensive measures may be addressed in a 

capitulation.148

12.9.5 Civil Administration of the Area Concerned. The civil administration of the area 

concerned, if a place or area is surrendered, may also be addressed in a capitulation.

12.10 CAPITULATIONS – VIOLATIONS AND DENUNCIATION

Once capitulation agreements have been made, they must be scrupulously observed by all 

parties.

149

12.10.1 Denunciation of Capitulation Agreements Based on Directed Violations. If 

violations of a capitulation agreement have been directed by the commander who capitulated or 

by higher authority, the other belligerent may denounce the capitulation and resume hostilities.150 

 145 For example, WINTHROP, MILITARY LAW & PRECEDENTS 787 (“In the capitulation between Gens. Grant and Lee, 

of April, 1865, in providing for the surrender of military property, it is added—‘This will not embrace the side arms 

of the officers, nor their private horses nor baggage.’”).

146 Refer to § 9.7 (POW Effects and Articles of Personal Use).

147 For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (“We hereby command the 

Japanese Imperial Government and the Japanese Imperial General Headquarters at once to liberate all allied 

prisoners of war and civilian internees now under Japanese control and to provide for their protection, care, 

maintenance and immediate transportation to places as directed.”).

148 For example, Instrument of Surrender of Italy, Sept. 29, 1943, 61 STAT. 2742, 2743-44 (“10. The Italian Supreme 

Command will make available all information about naval, military and air devices, installations, and defences, 

about all transport and inter-communication systems established by Italy or her allies on Italian territory or in the 

approaches thereto, about minefields or other obstacles to movement by land, sea or air and such other particulars as 

the United Nations may require in connection with the use of Italian bases, or with the operations, security, or 

welfare of the United Nations Land, Sea or Air Forces. Italian forces and equipment will be made available as 

required by the United Nations for the removal of the above mentioned obstacles.”).

149 HAGUE IV REG. art. 35 (“Capitulations agreed upon between the contracting parties must take into account the 

rules of military honour. Once settled, they must be scrupulously observed by both parties.”).

150 1956 FM 27-10 (Change No. 1 1976) ¶477 (“If the violation is directed by the commander who capitulated or by 

higher authority, the other belligerent may denounce the capitulation and resume hostilities.”).
863

Like action may also be taken if the capitulation was obtained through a breach of faith.151 

A capitulation may not, however, be denounced because one of the parties has been 

induced to agree to it by a means consistent with the law of war, such as a ruse, or by that party’s 

own incapacity, such as through mistake of fact.152

12.10.2 Violation of Capitulation Agreements by Individuals. Deliberate violations of 

the terms of a capitulation by individuals are punishable as a war crime.153 For example, a 

member of the capitulated force may be punished by his or her State or the enemy State for 

carrying out attacks on enemy military equipment or personnel in violation of the terms of the 

capitulation agreement. Similarly, destroying one’s own military equipment in violation of the 

terms of the capitulation agreement would also be punishable.154

Unwitting violations of a capitulation agreement, however, are not punishable. For 

example, individuals who return from a patrol and find their unit to have surrendered and, 

lacking knowledge of capitulation, continue to fight, would not be committing a war crime.

12.10.2.1 Violation of Capitulation Agreements and POW Status. Violation of a 

capitulation agreement, like other pre-capture law of war violations, is not a basis for denying a 

person POW status, if that person otherwise qualifies for POW status under the GPW.155

12.10.2.2 Violation of Capitulation Agreements by POWs. Members of the armed 

forces who have capitulated may become POWs. Violations of the terms of a capitulation 

agreement by a POW may also be punishable as misconduct as a POW, either by the Detaining 

Power or the State to which the POW belongs when that POW has been repatriated.156

12.11 ARMISTICES AND OTHER CEASE-FIRE AGREEMENTS

12.11.1 Definition of Armistice. An armistice may also be described as the cessation of 

 151 1956 FM 27-10 (Change No. 1 1976) ¶477 (“Like action may also be taken if the capitulation was obtained 

through a breach of faith.”).

152 1958 UK MANUAL ¶484 (“A capitulation may be denounced if a party to it formally refuses to execute a clause 

which has been agreed upon, and it may be cancelled if it was obtained by a breach of faith. It may not, however, be 

annulled because one of the parties has been induced to agree to it by ruse, or from motives for which there is no 

justification, or by his own incapacity or feebleness.”).

153 1956 FM 27-10 (Change No. 1 1976) ¶477 (“Violation of the terms of a capitulation by individuals is punishable 

as a war crime.”); Johnson v. Eisentrager, 339 U.S. 763, 787 (1950) (“Breach of the terms of an act of surrender is 

no novelty among war crimes.”).

154 For example, The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, I U.N. LAW REPORTS 55-70 

(British Military Court, Hamburg, Germany, Feb. 12-13, 1946) (First Lieutenant Grumpelt was convicted “of having 

scuttled two U-boats which had been surrendered by the German Command to the Allies” in violation of the 

Instrument of Surrender of 4th May, 1945.).

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

156 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the 

Detaining Power); § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).
864

active hostilities for a period agreed upon by the belligerents.157 An armistice suspends military 

operations by mutual agreement between the belligerent parties.158 

12.11.1.1 Armistice as an Agreement. An armistice is an agreed suspension of 

hostilities. For example, a unilateral suspension of operations by one party would not be an

armistice.

12.11.1.2 Armistice as a Suspension of Hostilities and Not a Peace Treaty. An 

armistice is not a partial or a temporary peace; it is only the suspension of military operations to 

the extent agreed upon by the parties to the conflict.159 War as a legal state of hostilities between 

parties may continue, despite the conclusion of an armistice agreement.

160

In some cases, however, armistice agreements may be intended to be a prelude to peace 

treaties.

161 In some cases, armistice agreements may persist for a long time.162

12.11.1.3 Armistice – Notes on Terminology. An armistice also has been referred 

to as a truce, local truce, ceasefire, cessation of hostilities, and suspension of arms.

163

 157 1956 FM 27-10 (Change No. 1 1976) ¶479 (“An armistice (or truce, as it is sometimes called) is the cessation of 

active hostilities for a period agreed upon by the belligerents.”); LIEBER CODE art. 135 (“An armistice is the 

cessation of active hostilities for a period agreed between belligerents.”).

158 HAGUE IV REG. art. 36 (“An armistice suspends military operations by mutual agreement between the belligerent 

parties.”).

159 1956 FM 27-10 (Change No. 1 1976) ¶479 (“It is not a partial or temporary peace; it is only the suspension of 

military operations to the extent agreed upon by the parties.”); LIEBER CODE art. 142 (“An armistice is not a partial 

or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.”).

160 See, e.g., Kahn v. Anderson, 255 U.S. 1, 9 (1921) (“That complete peace, in the legal sense, had not come to pass 

by the effect of the Armistice and the cessation of hostilities, is not disputable.”); Commercial Cable Co. v. 

Burleson, 255 F. 99, 104-05 (S.D.N.Y. 1919) (Hand, J.) (“It is the treaty which terminates the war. An armistice 

effects nothing but a suspension of hostilities; the war still continues. It is true that a war may end by the cessation 

of hostilities, or by subjugation; but that is not the normal course, and neither had hostilities ceased, nor had the 

enemy been subjugated in the sense in which that term is used.”) (citations omitted) reversed on other grounds and 

vacated as moot, Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919).

161 For example, Protocol of Agreement Between the United States and Spain, art. V, Aug. 12, 1898, 30 STAT. 1742, 

1743 (“The United States and Spain will each appoint not more than five commissioners to treat of peace, and the 

commissioners so appointed shall meet at Paris not later than October 1, 1898, and proceed to the negotiation and 

conclusion of a treaty of peace, which treaty shall be subject to ratification according to the respective constitutional 

forms of the two countries.”).

162 For example, DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements 

of the United States in Force on January 1, 2013, 411 (2013) (“Agreement concerning a military armistice in Korea, 

with annex. Signed at Panmunjon July 27, 1953, by the Commander-in-Chief, United Nations Command; the 

Supreme Commander of the Korean People’s Army; and the Commander of the Chinese People’s Volunteers. 

Entered into force July 27, 1953. 4 UST 346; TIAS 2782.”).

163 See, e.g., Richard Baxter, Armistices and Other Forms of Suspension of Hostilities, in HUMANIZING THE LAWS OF 

WAR: SELECTED WRITINGS OF RICHARD BAXTER 310 (2013) (“In military usage, as reflected in particular in 

manuals on the law of war, the older expression ‘armistice’ seems to be used quite generally to describe agreements 

which in these days go under the name of ‘cease-fires’ or ‘truces’ or ‘suspensions of arms’. Very often when we 

speak today of ‘cease-fire’, our predecessors, at least up to the Second World War, would have been inclined to use 

the term ‘general armistice’ or ‘local armistice’. These are largely terminological differences and the employment 
865

Although in some cases distinctions may be drawn between these different terms, 

armistice may also be used in a general sense to encompass these terms.164

12.11.2 Types of Armistice and the Authority to Conclude Armistice Agreements. 

Armistice agreements have been categorized based on the degree to which they suspend 

hostilities. 

An armistice may be general or local. The first suspends the military operations of the 

belligerent States everywhere; the second only between certain fractions of the belligerent armies 

and within a fixed radius.165

The degree to which the parties wish to suspend hostilities affects what authorities are 

needed to conclude the armistice agreement. An armistice agreement must be concluded by 

authorities who are competent to agree to and to enforce its terms. Thus, armistices that include 

more substantive and expansive terms must be approved by more senior authorities. For 

example, a commander would not have the authority to conclude an armistice agreement that 

binds units or areas that are not under his or her command. Similarly, if an armistice contains 

political terms, it must be made under authorization from the governments concerned or subject 

to approval by them.166

12.11.2.1 General Armistice. A general armistice suspends all military 

operations between opposing forces.

General armistices are usually of a combined political and military character. They 

usually precede the negotiations for peace, but may be concluded for other purposes. Due to its 

 

of one expression or another does not normally of itself have operative legal consequences.”); 1958 UK MANUAL

¶418 note 1 (“Six expressions have in the past been used in the British army to signify a cessation of hostilities 

falling short of peace: truce, local truce, armistice, cessation of hostilities (as in the Convention made after Majuba 

in 1881), cessation of arms (as in the negotiations preceding the surrender at Saratoga in 1777), and suspension of 

arms. Yet they do not appear to have been employed with any exactitude. Moreover, other expressions, such as ‘a 

cease fire for three hours,’ have not been unknown. Neither do other languages follow an exact terminology in the 

matter; the Germans speak of Waffenruhe and Waffenstillstand, without distinguishing precisely between them. The 

French instructions distinguish between amistices and suspensions d’armes. It has been found advisable to follow 

the practice of the more authoritative writers in distinguishing three different kinds of armistice as in the text 

above.”).

164 See, e.g., WALTER G. HERMES, UNITED STATES ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTING FRONT

15 footnote 1 (1992) (“For literary reasons, the terms ‘armistice,’ ‘truce,’ and ‘cease-fire’ have been used 

interchangeably throughout this volume. According to the Office of the Judge Advocate General, ‘truce’ signifies a 

temporary interruption of fighting between local forces for some reason such as the collection of the dead and 

wounded. The word ‘armistice’ has a similar connotation, but is utilized to cover a temporary cessation of hostilities 

on a broader scale. ‘Cease-fire’ applies when all acts of war are halted, bringing about an informal end to the war 

and stabilizing the situation until formal negotiations can be completed.”).

165 HAGUE IV REG. art. 37 (“An armistice may be general or local. The first suspends the military operations of the 

belligerent States everywhere; the second only between certain fractions of the belligerent armies and within a fixed 

radius.”); LIEBER CODE art. 137 (“An armistice may be general, and valid for all points and lines of the belligerents, 

or special, that is, referring to certain troops or certain localities only.”).

166 1956 FM 27-10 (Change No. 1 1976) ¶483 (“If an armistice contains political terms, it must be made under 

authorization from the governments concerned or subject to approval by them.”).
866

political importance and the fact that it would be binding on all of a belligerent’s forces, a 

general armistice is normally negotiated by senior officials and is subject to approval by each

State.

167 For example, an armistice agreement may be negotiated by senior military commanders 

and be subject to approval of each State.168

12.11.2.2 Local or Partial Armistice. A local armistice (also called a partial 

armistice) suspends operations between certain portions of the belligerent forces or within a 

specified area.

169 In some cases, a local armistice has been distinguished from a suspension of

arms as implicating a large number of forces, a greater geographic area, and broader interests 

than the local military requirements that are addressed in a suspension of arms.

170

12.11.2.3 Suspension of Arms. A suspension of arms is a form of local armistice 

concluded between commanders of military forces for some local military purpose, such as to 

bury the dead, to collect the wounded, to arrange for exchange of detainees, or to enable a 

commander to communicate with his or her government or superior officer.

171

Commanders are presumed to have the authority to conclude suspensions of arms for 

forces and areas within their control.

12.11.3 Form of Armistice Agreements. No special form for an armistice is prescribed. 

If possible, armistice agreements should be reduced to writing to avoid misunderstandings and 

for the purpose of reference should differences of opinion arise. Armistice agreements should be 

 167 1956 FM 27-10 (Change No. 1 1976) ¶483 (“General armistices are usually of a combined political and military 

character. They usually precede the negotiations for peace, but may be concluded for other purposes. Due to its 

political importance, a general armistice is normally concluded by senior military officers or by diplomatic 

representatives or other high civilian officials.”).

168 For example, Barbara Salazar Torreon, U.S. Periods of War and Dates of Current Conflicts, 5-6 (Congressional 

Research Service, Dec. 28, 2012) (“Cease-fire terms [of the 1991 Persian Gulf War] negotiated at Safwan, Iraq, 

March 1, 1991. Iraq officially accepted cease-fire terms, April 6, 1991. Cease-fire took effect April 11, 1991.”); id. 

at footnote 8 (“This agreement is actually a transcript of the discussion held at Safwan Airfield, Iraq, between 

Coalition participants, U.S. Gen. M. Norman Schwarzkopf and Lt. Gen. Khalid of the Joint Arab Forces, and Iraqi 

participants, Lt. Gen. Sultan Kasim Ahmad, Chief of Staff of the Ministry of Defense, and Lt. Gen. Sala Abud 

Mahmud, III Corps Commander.”).

169 1956 FM 27-10 (Change No. 1 1976) ¶484 (“A local armistice suspends operations between certain portions of 

the belligerent forces or within a designated district of the theater of operations.”).

170 1958 UK MANUAL ¶425 (“It is, however, always a condition of the [partial] armistice that a considerable part of 

the forces and of the region of war must be included, and that the cause for which it has been concluded is not only 

some pressing local interests, as in the case of a suspension of arms, but one of a more general character, such as a 

general exhaustion of the opposing belligerent forces in one part of the theatre of war; the outbreak of a virulent 

infectious disease in the opposing camps; or any other cause the requirements of which cannot be satisfied by a mere 

suspension of arms, but do not demand a general armistice.”).

171 1956 FM 27-10 (Change No. 1 1976) ¶485 (“A suspension of arms is a form of armistice concluded between 

commanders of military forces for some local military purpose, such as to bury the dead, to collect the wounded, to 

arrange for exchange of prisoners, or to enable a commander to communicate with his government or superior 

officer.”).
867

drafted with the greatest possible precision and clarity.172

12.11.3.1 Languages. Unless agreement is possible for an armistice to be drawn 

up in one language, an armistice should be drawn up in the language of each belligerent force, 

with each side retaining a copy in its language. Each belligerent should confirm the text in each 

version to ensure consistency in each language.

12.11.4 General Effects of an Armistice Agreement. The precise effect of an armistice 

agreement may depend on the terms of the agreement. In the absence of specific provisions to 

the contrary, the following effects should be understood to result from an armistice agreement.

12.11.4.1 Commencement, Notification, and Effective Time of the Armistice. An 

armistice must be notified officially and in good time to the competent authorities and to the 

forces. Hostilities are suspended immediately after the notification, or on the date fixed.173

An armistice for the parties commences at the moment it is signed, in the absence of 

specific provision to the contrary.

174 For example, an armistice agreement may specify that 

hostilities are suspended for the parties upon receipt of notification by their commanders, rather 

than upon signing.175

Although an armistice is binding upon the belligerents from the time agreed for 

commencement of the armistice (or the time of signature if the time of commencement is not 

specified), officers of the armed forces are responsible for adhering to the armistice only from 

the time when they receive official information of its existence from their State.

176

12.11.4.2 Duration of an Armistice and the Resumption of Operations. If the 

duration of an armistice is not prescribed, belligerents may resume operations at any time, 

provided always that the enemy is warned within the time agreed upon, in accordance with the 

 172 1956 FM 27-10 (Change No. 1 1976) ¶486 (“No special form for an armistice is prescribed. It should, if 

possible, be reduced to writing, in order to avoid misunderstandings and for the purpose of reference should 

differences of opinion arise. It should be drafted with the greatest precision and with absolute clearness.”).

173 HAGUE IV REG. art. 38 (“An armistice must be notified officially and in good time to the competent authorities 

and to the troops. Hostilities are suspended immediately after the notification, or on the date fixed.”).

174 1956 FM 27-10 (Change No. 1 1976) ¶487a (“An armistice commences, in the absence of express mention to the 

contrary, at the moment it is signed.”).

175 For example, 1958 UK MANUAL ¶485 note 1 (“The capitulation of Manila was signed by the local commandersin-chief on 4 August 1898, but a general armistice had been agreed to by the Governments of Spain and the U.S.A. 

on 12 August. Notice of this, however, did not reach the Philippines until 16 August, owing to a breakdown in 

signal communications. The Spaniards contended that the capitulation had become void, but the United States 

Government denied, maintaining that the protocol concerning the armistice had stipulated suspension of hostilities, 

not from the date of signature, but from the date of receipt of notification on the part of the respective 

commanders.”).

176 1956 FM 27-10 (Change No. 1 1976) ¶491 (“An armistice is binding upon the belligerents from the time of the 

agreed commencement, but the officers of the armies are responsible only from the time when they receive official 

information of its existence.”); LIEBER CODE art. 139 (“An armistice is binding upon the belligerents from the day of 

the agreed commencement; but the officers of the armies are responsible from the day only when they receive 

official information of its existence.”).
868

terms of the armistice.177

If the duration is for a definite period of time and there is no positive agreement to the 

contrary, hostilities may be resumed without notice after the prescribed period of time.

12.11.4.3 General Prohibition on Offensive Military Operations. An armistice 

agreement generally would be understood to prohibit offensive military operations, such as 

conducting attacks or seizing territory.178 Such acts would be examples of serious violations of 

an armistice.179

12.11.4.4 Armistice No Excuse for Relaxing Vigilance. The existence of an 

armistice does not warrant relaxation of vigilance in the service of security and protection, or in 

the preparedness of forces for action or exposing positions to the enemy.180 For example, 

belligerents may continue to gather intelligence during an armistice, and may rely on that 

intelligence after the armistice has ended.181

12.11.4.5 Preparations for Resuming Hostilities and Espionage Generally Not 

Prohibited. During an armistice, in the absence of stipulations to the contrary, each belligerent is 

authorized: 

• to make movements of forces within its own lines;

• to receive reinforcements; 

 177 HAGUE IV REG. art. 36 (“If [an armistice’s] duration is not defined, the belligerent parties may resume operations 

at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of 

the armistice.”); LIEBER CODE art. 137 (“An armistice may be concluded for a definite time; or for an indefinite 

time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other.”).

178 See 1958 UK MANUAL ¶446 (“If an armistice is declared without conditions, nothing more than a total cessation 

of hostilities along the front of both positions is required.”) (emphasis added); LIEBER CODE art. 136 (“If an 

armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along 

the front of both belligerents.”) (emphasis added); 1914 RULES OF LAND WARFARE ¶261 (“What may be done during 

an armistice.—An armistice need not in terms prohibit actual hostilities [in order to have the effect of prohibiting 

actual hostilities]. Anything else [beyond conducting actual hostilities] may be done during an armistice that is not 

in express terms prohibited by the agreement.”). See also 1914 RULES OF LAND WARFARE ¶261 note 1 (“Actual 

hostilities will provide, of course, that firing shall cease; that the belligerents must not gain ground to the front; and, 

during siege operations, ‘that the besieger must cease all extension, perfection, or advance of his attack works, as 

much so as from attacks by main force.’ (G.O. 100, 1863, art. 142.)”).

179 Refer to § 12.13.1.1 (Examples of Serious Violations of an Armistice).

180 1956 FM 27-10 (Change No. 1 1976) ¶481 (“The existence of an armistice does not warrant relaxation of 

vigilance in the service of security and protection, or in the preparedness of troops for action, or exposing positions 

to the enemy.”); 1958 UK MANUAL ¶460 (“The existence of an armistice is no reason for relaxing either vigilance or 

the readiness of troops for action, or for exhibiting positions to the enemy which he could not detect during 

combat.”).

181 For example, 1914 RULES OF LAND WARFARE ¶273 note 1 (“At the second battle of Fredericksburg, May 5, 

1863, the Federals discovered the weakness of Gen. Barksdale’s force during a suspension of hostilities to collect 

the wounded after the second repulse. Memoirs, Alexander, p. 351. In the suspension of arms at Wynnes Hill, 

during the relief of Ladysmith, many of the burghers stood up and disclosed the position of their trenches, which 

until then had not been located by the enemy. South African War, Vol. II, p. 602.”).
869

• to construct new fortifications, installations, and bases;

• to build and repair transportation and communications facilities;

• to seek information about the enemy;

• to bring up supplies and equipment; and

• in general, to take advantage of the time and means at its disposal to prepare for resuming 

hostilities.182

Belligerents are not bound to discontinue espionage during an armistice, but the risks 

incurred by spies are the same as at other times.183 For example, spies may be punished by an 

opposing belligerent if captured.184

12.11.4.6 Armistice and Besieged Localities. Absent express provision in the 

armistice agreement to the contrary, an armistice does not give authorities of a besieged place the 

right to receive food, water, or other supplies.

185 

However, armistice negotiations may be an opportunity for belligerents to attempt to 

conclude local agreements for the removal of wounded, sick, infirm and aged persons, children, 

and maternity cases, or for the passage of ministers of all religions, medical personnel, and 

medical equipment on their way to such areas.

186 In addition, armistice negotiations may be an 

opportunity for commanders to seek to make arrangements to permit the free passage of certain 

consignments.

187

12.12 ARMISTICES – SUBJECTS USUALLY ADDRESSED

The following topics are often addressed in an armistice agreement: (1) the scope of the 

armistice, including start time and duration; (2) what military activities are prohibited by the 

armistice; (3) the relations between forces and the local populations during the armistice; (4) 

humanitarian activities to occur during the armistice; and (5) mechanisms for implementing the 

 182 1956 FM 27-10 (Change No. 1 1976) ¶487e (“In the absence of stipulations to the contrary, each belligerent is 

authorized to make movements of troops within his own lines, to receive reinforcements, to construct new 

fortifications, installations, and bases, to build and repair transportation and communications facilities, to seek 

information about the enemy, to bring up supplies and equipment, and, in general, to take advantage of the time and 

means at his disposal to prepare for resuming hostilities.”).

183 1958 UK MANUAL ¶449 (“Belligerents are not bound to discontinue espionage during an armistice, but the risks 

incurred by spies are the same as at other times.”).

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

185 1958 UK MANUAL ¶445 (“The conclusion of an armistice gives the authorities of a besieged place no right to 

introduce provisions either for the garrison or for the civil population. Arrangements may, however, be made to 

supply them so that at the end of the armistice the forces are in the same position as at the beginning.”).

186 Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular 

Personnel, the Wounded and Sick, and Medical Personnel).

187 Refer to § 5.19.3 (Passage of Relief Consignments).
870

armistice.

Armistice provisions may address a range of political and military issues, provided that 

belligerents agree upon the terms and provided that the approving authorities are competent to 

address them.

188

12.12.1 Scope of an Armistice, Including Start Time and Duration. The armistice should 

specify its scope—when and where it applies. The start time and duration of an armistice should 

be specified as precisely as possible (e.g., date, time, and applicable time zone) to avoid 

misunderstanding and an unintentional resumption of hostilities.189

It may be appropriate for the armistice to specify that it starts at a later time to allow all 

forces to receive notification of the armistice before it becomes effective.

190

If the armistice is of an indefinite duration, the terms and manner of giving notice that 

that armistice is to be ended (including the length of time between the delivery of the notice and 

when combat operations may recommence) should be specified in the armistice agreement.191

12.12.2 What Military Activities Are Prohibited by an Armistice. Although an armistice 

is generally understood to prohibit offensive operations, the armistice agreement may specify the 

extent to which offensive operations are prohibited and other military activities that are also 

prohibited during the armistice.192

12.12.3 Relations Between Forces and the Local Population During an Armistice. It rests 

with the Contracting Parties to settle, in the terms of the armistice, what intercourse may be held 

in the theater of war with the inhabitants of one belligerent State and those of the other.193

 188 1956 FM 27-10 (Change No. 1 1976) ¶488 (“In addition to the provisions set forth in the preceding paragraph, 

general armistices normally contain a number of political and military stipulations concerning such matters as the 

evacuation of territory; disposition of aircraft and shipping; cooperation in the punishment of war crimes; restitution 

of captured or looted property; communications facilities and public utilities; civil administration; displaced persons; 

and the dissolution of organizations which may subvert public order.”).

189 1956 FM 27-10 (Change No. 1 1976) ¶487a (“The precise date, day, and hour for the suspension of hostilities 

should also be stipulated. The effective times may be different in different geographical areas. An armistice 

commences, in the absence of express mention to the contrary, at the moment it is signed.”).

190 For example, Treaty of Armistice with Germany, Nov. 11, 1918, 2 BEVANS 9 (“An armistice has been concluded 

on the following conditions: ... (A) CLAUSES RELATING TO THE WESTERN FRONT I. Cessation of hostilities by land 

and in the air six hours after the signing of the armistice.”).

191 Refer to § 12.11.4.2 (Duration of an Armistice and the Resumption of Operations).

192 Refer to § 12.11.4.3 (General Prohibition on Offensive Military Operations).

193 HAGUE IV REG. art. 39 (“It rests with the Contracting Parties to settle, in the terms of the armistice, what 

communications may be held in the theater of war with the inhabitants of one belligerent State and those of the 

other.”); LIEBER CODE art. 141 (“It is incumbent upon the contracting parties of an armistice to stipulate what 

intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be 

allowed, if any.”). See also 1914 RULES OF LAND WARFARE ¶268 note 1 (“Of course, what is intended [by Article 

29 of the Hague IV Regulations] to be regulated is the intercourse of the population of the occupied territory with 

the population of the country still held by the enemy (in both cases nationals of the State), and also between each 

belligerent force and the inhabitants of the localities held by the other.”).
871

If nothing is stipulated, intercourse (e.g., communication, movement, or commerce) 

remains suspended, as during actual hostilities.194 For example, absent explicit agreement, a

belligerent retains the right to control all communications or movement of members of the 

civilian population between its lines and enemy lines (e.g., denying movement to reduce the risk 

of enemy espionage activities, denying trade to avoid strengthening enemy armed forces).

195

The armistice agreement may also stipulate responsibilities of each party for civil 

administration of areas under its respective control (e.g., public safety and public health needs, 

maintenance of public utilities including communications facilities). The armistice agreement 

may also specify the responsibilities of each belligerent for civil administration of neutral areas 

or areas where control is shared.196

12.12.4 Humanitarian Activities to Occur During an Armistice. An armistice agreement 

may arrange for a variety of humanitarian activities, such as:

• search for and collection of the sick and wounded from the battlefield, by, for example, 

medical personnel or authorized civilians (such as non-governmental organizations); and

• the provision or transport of medical care or food supplies intended for the civilian 

population, including displaced persons.

12.12.4.1 Disposition of Detainees. Because armistice agreements are generally 

only a temporary suspension of hostilities and not a complete cessation of active hostilities, 

POWs generally need not be repatriated upon the conclusion of an armistice agreement.197 If it 

is desired that detainees, such as POWs, retained personnel, or civilian internees, should be 

released or exchanged, specific provisions in this regard should be made in the armistice 

agreement.

198 

 194 1956 FM 27-10 (Change No. 1 1976) ¶487d (“If it is desired to make any change during the armistice in the 

relations between the opposing forces and the peaceable inhabitants, this must be accomplished by express 

provision. Otherwise these relations remain unchanged, each belligerent continuing to exercise the same rights as 

before, including the right to prevent or control all intercourse between the inhabitants within his lines and persons 

within the enemy lines.”); LIEBER CODE art. 141 (“If nothing is stipulated the intercourse remains suspended, as 

during actual hostilities.”).

195 Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations); 

§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).

196 For example, Agreement Between the Governments of the United States of America, the Soviet Union, and the 

United Kingdom on the One Hand and the Government of Rumania on the Other Concerning an Armistice, Sept. 12, 

1944, 59 STAT. 1712, 1715 (“17. Rumanian civil administration is restored in the whole area of Rumania separated 

by not less than 50-100 kilometres (depending upon conditions of terrain) from the front line, Rumanian 

administrative bodies undertaking to carry out, in the interests of the reestablishment of peace and security, 

instructions and orders of the Allied (Soviet) High Command issued by them for the purpose of securing the 

execution of these armistice terms.”).

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

198 1956 FM 27-10 (Change No. 1 1976) ¶487f (“If it is desired that prisoners of war and civilian internees should be 

released or exchanged, specific provisions in this regard should be made.”). For example, Agreement between the 

Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean 

People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, Concerning a Military 
872

12.12.5 Mechanisms for Implementing an Armistice. An armistice agreement may 

specify mechanisms to help implement it.

12.12.5.1 Neutral Zone Created by an Armistice. An armistice may create a 

“neutral zone,” situated in order to minimize risk of unintentional confrontation between 

opposing forces.199 It may be necessary for forces to withdraw in order to establish the zone.200 

It is usually agreed that these lines are not to be crossed or the neutral zone entered except by 

parlementaires or other parties by special agreement for specified purposes, such as to bury the 

dead and collect the wounded.201

12.12.5.2 Consultative Mechanism. The armistice agreement may provide for the 

establishment of a commission composed of representatives of the opposing forces to supervise 

the implementation of the armistice agreement.202 The agreement may specify that other 

representatives, such as representatives from neutral States or representatives from local 

authorities, are included on the commission.

203

12.12.5.3 Signals. The belligerents may agree to use certain signals to help 

implement the armistice. For example, signals may be agreed upon to indicate the passage of 

parlementaires, the start or end of the armistice, or for other reasons.

12.12.5.4 Maps Showing Boundaries or the Location of Forces. An armistice 

agreement may also include an exchange of maps or other imagery showing the lines of 

 

Armistice in Korea art. 52, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132, 137 (Aug. 3, 1953) (“Each side 

insures [sic] that it will not employ in acts of war in the Korean conflict any prisoner of war released and repatriated 

incident to the coming into effect of this Armistice Agreement.”).

199 For example, Protocol of Armistice between Japan and Russia, Sept. 1, 1905, reprinted in I TREATIES AND 

AGREEMENTS WITH AND CONCERNING CHINA 1894-1919, 527 (1921) (“The undersigned Plenipotentiaries of Japan 

and Russia duly authorised to that effect by their Governments have agreed upon the following terms of armistice 

between the belligerents, pending the coming into force of the Treaty of Peace: -- 1. A certain distance (zone of 

demarcation) shall be fixed between the fronts of the armies of the two Powers in Manchuria as well as in the region 

of the Tomamko (Tumen).”).

200 For example, Dayton Accords, Annex 1A, art. IV (OHR Doc. 14/12/1995) (“The Parties immediately after this 

Annex enters into force shall begin promptly and proceed steadily to withdraw all Forces behind a Zone of 

Separation which shall be established on either side of the Agreed Cease-Fire Line that represents a clear and 

distinct demarcation between any and all opposing Forces.”).

201 1956 FM 27-10 (Change No. 1 1976) ¶487c (“Provision may be included for a neutral zone between the two 

armies. It is usually agreed that these lines are not to be crossed or the neutral zone entered except by 

parlementaires or other parties by special agreement for specified purposes, such as to bury the dead and collect the 

wounded.”).

202 1956 FM 27-10 (Change No. 1 1976) ¶487g (“It is generally desirable to provide for the establishment of a 

commission, composed of representatives of the opposing forces, to supervise the implementation of the armistice 

agreement.”).

203 For example, Egyptian-Israeli General Armistice Agreement, art. 10(1) Feb. 24, 1949, 42 UNTS 251, 264 (“The 

execution of the provisions of this Agreement shall be supervised by a Mixed Armistice Commission composed of 

seven members, of whom each Party to this Agreement shall designate three, and whose Chairman shall be the 

United Nations Chief of Staff of the Truce Supervision Organization or a senior officer from the Observer personnel 

of that Organization designated by him following consultation with both Parties to this Agreement.”).
873

opposing forces (or the location of forces) at the time of the start of the armistice.

204 Such maps 

may facilitate understanding of applicable boundaries, such as the location of neutral zones, as 

well as reduce the risk of unintended confrontation.

12.13 ARMISTICES – VIOLATIONS AND DENUNCIATION

An armistice, like other formal arrangements between belligerents, engages the honor of 

all parties for the exact and complete fulfillment of every obligation thereby imposed.205 Serious 

violations of the armistice by one of the parties gives an opposing party the right of denouncing 

the armistice, and deliberate violations of the armistice by individuals are punishable.

12.13.1 Serious Violations as a Basis for Denouncing an Armistice. Any serious 

violation of the armistice by one of the parties gives an opposing belligerent the right of 

denouncing the armistice, and even, in cases of urgency, of recommencing hostilities 

immediately.

206

12.13.1.1 Examples of Serious Violations of an Armistice. Serious violations of 

an armistice include acts in contravention of the terms of the agreement or acts that are wholly 

inconsistent with the status of the suspension of hostilities.207 Such acts may include:

• conducting attacks against the enemy;

• a deliberate advance or construction of works beyond the line agreed upon;

• the seizure of any point outside the lines; and

• the utilization of the occasion to withdraw forces from an unfavorable position 

commanded by the enemy.

208

 204 For example, Egyptian-Israeli Agreement on Disengagement of Forces in Pursuance of the Geneva Peace 

Conference, Annex to Kurt Waldheim, Letter Dated 18 January 1974 From the Secretary-General Addressed to 

President of the Security Council, U.N. Doc. S/11198, 2 (Jan. 18, 1974) (“A. Egypt and Israel will scrupulously 

observe the cease-fire on land, sea and air called for by the United Nations Security Council and will refrain from 

the time of the signing of this document from all military or para-military actions against each other. B. The 

military forces of Egypt and Israel will be separated in accordance with the following principles: 1. All Egyptian 

forces on the east side of the canal will be deployed west of the line designated as line A on the attached map. All 

Israeli forces, including those west of the Suez Canal and the Bitter Lakes, will be deployed east of the line 

designated as line B on the attached map.”).

205 1956 FM 27-10 (Change No. 1 1976) ¶493 (“An armistice, like other formal agreements between belligerents, 

engages the honor of both parties for the exact and complete fulfillment of every obligation thereby imposed.”).

206 HAGUE IV REG. art. 40 (“Any serious violation of the armistice by one of the parties gives the other party the 

right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.”).

207 Cf. WINTHROP, MILITARY LAW & PRECEDENTS 787 (“The offence of violation of an armistice may consist in an 

act in contravention of the terms of the agreement, or in an act wholly inconsistent with the status of suspension.”).

208 1958 UK MANUAL ¶456 (“A deliberate advance or construction of works beyond the line agreed upon, the 

seizure of any point outside the lines, or the utilization of the occasion to withdraw troops from an unfavourable 

position commanded by the enemy, or any violation of an express condition would, as a rule, constitute a grave 

breach [of an armistice].”).
874

12.13.1.2 Process of Denunciation – Warning Requirement. Absent urgent 

necessity, a delay should occur between denunciation of the armistice and the resumption of 

hostilities.209 This delay allows the denunciation to act as warning and to ensure that the party 

recommencing hostilities does not rely on the other party’s compliance with the armistice as a 

way of facilitating its offensive military operations. 

It would be dishonorable and perfidious for either party, without warning, to resume 

hostilities during the period of an armistice, with or without a formal denunciation thereof, 

except in case of urgency and upon convincing proof of intentional and serious violation of its

terms by the other party.210 

Nevertheless, under Article 40 of the Hague IV Regulations, upon definite proof of such 

a violation of an armistice, if the delay incident to formal denunciation and warning seems likely 

to give the violator a substantial advantage of any kind, the other party is free to resume 

hostilities without warning and with or without a formal denunciation.

211 For example, the law 

of war does not prohibit armed forces that reasonably believe an adversary is committing 

armistice violations from taking necessary and proportionate action in self-defense immediately 

in response.

12.13.1.3 Process of Denunciation – Approval of Co-Belligerents Not Required. 

A belligerent faced with serious violations of an armistice is not required to obtain the 

permission of its co-belligerents, even though those States may be parties to the armistice 

agreement, before recommencing hostilities.212

12.13.2 Violations of an Armistice by Individuals. A violation of the terms of an

armistice by private persons acting on their own initiative only entitles the injured party to 

demand the punishment of the offenders or, if necessary, compensation for the losses 

sustained.213

 209 1958 UK MANUAL ¶458 (Unless there be great urgency, there should always be a delay between denunciation of 

the armistice and resumption of hostilities.”).

210 1956 FM 27-10 (Change No. 1 1976) ¶493 (“It would be an outrageous act of perfidy for either party, without 

warning, to resume hostilities during the period of an armistice, with or without a formal denunciation thereof, 

except in case of urgency and upon convincing proof of intentional and serious violation of its terms by the other 

party.”).

211 1956 FM 27-10 (Change No. 1 1976) ¶493 (“Nevertheless, under the article last above quoted, upon definite 

proof of such a violation of the armistice, if the delay incident to formal denunciation and warning seems likely to 

give the violator a substantial advantage of any kind, the other party is free to resume hostilities without warning and 

with or without a formal denunciation.”).

212 For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic and 

International Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 174-75 

(Oct. 23, 2002) (“The missile strikes in 1993 and 1998 serve as clear examples of the suspension of a cease-fire and 

a resumption of hostilities due to serious violations by Iraq. ... It is our understanding based on information supplied 

by the Department of Defense that in neither case did the United States obtain the express agreement of all of the 

other members of the Persian Gulf War coalition before suspending the cease-fire and using force.”).

213 HAGUE IV REG. art. 41 (“A violation of the terms of the armistice by private persons acting on their own 

initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation for 

the losses sustained.”).
875

12.13.2.1 “Private Persons” Defined for the Purposes Article 41 of the Hague IV 

Regulations. A private person, in the sense of Article 41 of the Hague IV Regulations, refers to 

any person, including a member of the armed forces, who acts on his or her own 

responsibility.214 

12.13.2.2 Effect of Violations of an Armistice by Individuals. Deliberate violation 

of the terms of an armistice by individuals is punishable as a war crime. Such violations by 

individual members of the armed forces or subordinate officers do not justify denunciation of the 

armistice unless they are proved to have been committed with the knowledge and actual or tacit 

consent of their own government or commander. Consent may be inferred in the event of a 

persistent failure to punish such offenders.215

12.13.2.3 Violation of Armistice Agreements and POW Status. Violations of an 

armistice agreement, like other pre-capture law of war violations, are not a basis for denying a 

person POW status, if that person otherwise qualifies for POW status under the GPW.216

12.14 U.N. SECURITY COUNCIL CEASE-FIRES

The U.N. Security Council may call upon or demand that hostilities be ceased.

217 In 

addition, the U.N. Security Council may call upon or demand that members of the United 

Nations conclude cease-fire or armistice agreements.218 The U.N. Security Council may also 

establish a formal cease-fire.219

Cease-fires established by the U.N. Security Council may be interpreted in accordance 

 214 1956 FM 27-10 (Change No. 1 1976) ¶494b (“A private individual, in the sense of the foregoing article, refers to 

any person, including a member of the armed forces, who acts on his own responsibility.”).

215 1956 FM 27-10 (Change No. 1 1976) ¶494c (“Violation of the terms of an armistice by individuals is punishable 

as a war crime. Such violations by individual soldiers or subordinate officers do not justify denunciation of the 

armistice unless they are proved to have been committed with the knowledge and actual or tacit consent of their own 

government or commander. Consent may be inferred in the event of a persistent failure to punish such offenders.”).

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

217 For example, U.N. SECURITY COUNCIL RESOLUTION 1199, U.N. Doc S/RES/1199, ¶1 (Sept. 23, 1998) (“Acting

under Chapter VII of the Charter of the United Nations, 1. Demands that all parties, groups and individuals 

immediately cease hostilities and maintain a ceasefire in Kosovo, Federal Republic of Yugoslavia, which would 

enhance the prospects for a meaningful dialogue between the authorities of the Federal Republic of Yugoslavia and 

the Kosovo Albanian leadership and reduce the risks of a humanitarian catastrophe;”); U.N. SECURITY COUNCIL 

RESOLUTION 338, U.N. Doc. S/RES/338 (Oct. 22, 1973) (“Calls upon all parties to the present fighting to cease all 

firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this 

decision, in the positions they now occupy.”).

218 For example, U.N. SECURITY COUNCIL RESOLUTION 27, U.N. Doc S/RES/27 (Aug. 1, 1947) (“The Security 

Council, Noting with concern the hostilities in progress between the armed forces of the Netherlands and the 

Republic of Indonesia, Calls upon the parties: (a) To cease hostilities forthwith, and (b) To settle their dispute by 

arbitration or by other peaceful means and keep the Security Council informed about the progress of the 

settlement.”).

219 For example, U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687 ¶33 (Apr. 3, 1991) (“Declares

that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the 

above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with 

Kuwait in accordance with resolution 678 (1990);”).
876

with the general principles of international law governing armistices.220

 220 For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic and 

International Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 175 

(Oct. 23, 2002) (“Under general principles of armistice law, therefore, because the initial use of force in response to 

the invasion of Kuwait—Operation Desert Storm—was authorized under UNSCR 678, subsequent uses of force 

against Iraq in response to serious violations of the terms of the cease-fire established by UNSCR 687 would be 

authorized as well, provided either that Iraq has been warned, or that such a warning may be avoided because it 

would be likely to give Saddam Hussein a substantial advantage.”).
877

XIII – Naval Warfare

Chapter Contents

13.1 Introduction

13.2 Legal Boundaries of the Oceans

13.3 Overview of Rules for Naval Engagements

13.4 Enemy Warships

13.5 Enemy Merchant Vessels

13.6 Enemy Vessels Exempt From Capture or Destruction

13.7 Submarine Warfare

13.8 Belligerent Control of the Immediate Area of Naval Operations

13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and 

Safety

13.10 Blockade

13.11 Naval Mines

13.12 Torpedoes

13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags

13.1 INTRODUCTION

This Chapter addresses the law of war rules that apply to naval operations, especially 

those aspects of naval warfare that differ from warfare on land or in the air. This Chapter also 

briefly addresses the legal boundaries of the ocean, which may be relevant to the application of 

the law of war.

Navy publications have provided discussion of other public international law relating to 

naval operations, including discussion of the law of the sea applicable during peacetime.1

Some topics that are related to neutrality law and that are relevant to the conduct of both 

naval and air warfare, such as the conduct of visit and search and neutral commerce, are 

addressed in Chapter XV, the Law of Neutrality.2

13.1.1 The Law of the Sea During Armed Conflict. The law of the sea is a body of treaty 

and customary international law. Its rules have been developed principally with peacetime 

situations in mind. Nothing in the law of the sea impairs a State’s inherent right of individual or 

collective self-defense, or rights during armed conflict.3

 1 See, e.g., 2007 NWP 1-14M; 1997 NWP 9; 1989 NWP 9.

2 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); § 15.12 (Neutral 

Commerce and Carriage of Contraband).

3 Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge Advocate General, U.S. Coast Guard, to 

Additional Questions for the Record Submitted by Senator Joseph R. Biden, Jr., SENATE EXECUTIVE REPORT 108-

10, United Nations Convention on the Law of the Sea, 108th Congress, Second Session, 170, 172 (Mar. 11, 2004) 

(“It should also be noted that nothing in the Convention restricts the inherent right of individual or collective selfdefense or rights during armed conflict, and the administration is recommending that the United States express such 
878

For example, the law of the sea provides that the high seas are reserved for peaceful 

purposes.

4

 However, the use of the high seas for peaceful purposes is understood not to impose 

restraints upon military operations that would otherwise be consistent with international law, or 

to impair a State’s inherent right of self-defense.5

 The use of outer space for peaceful purposes 

also has been interpreted in this way.6

As another example, certain rights under the law of the sea (e.g., certain rights of 

navigation of vessels, or rights of States with respect to exclusive economic zones) must be 

exercised with due regard for the rights and duties of other States.7 To the extent this obligation 

applies during armed conflict, what regard would be due would depend on military necessity and 

other principles and rules of the law of war, which are specially adapted to the circumstances of 

armed conflict.8

13.1.2 The United States and the LOS Convention. The U.N. Convention on the Law of 

the Sea (LOS Convention) was opened for signature on December 10, 1982.9

The United States is not a Party to the LOS Convention. The United States did not sign 

the LOS Convention when it opened for signature because of several major problems in the 

Convention’s deep seabed mining provisions.10 However, in 1983, the United States announced 

that it was prepared to accept and act in accordance with the balance of interests reflected in the 

LOS Convention relating to traditional uses of the oceans – such as navigation and overflight –

and that the United States would exercise and assert its navigation and overflight rights and 

 

an understanding.”); William H. Taft, Legal Adviser, Department of State, Response to an Additional Question from 

Senator Inhofe, United Nations Convention on the Law of the Sea: Hearing Before the Committee on Environment 

and Public Works, U.S. Senate, 108th Congress, Second Session, 77 (Mar. 23, 2004) (“As stated in the resolution of 

advice and consent now before the Senate, nothing in the Convention impairs the inherent right of individual or 

collective self-defense or rights during armed conflict.”).

4 Consider LOS CONVENTION art. 88 (“The high seas shall be reserved for peaceful purposes.”).

5 Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation 

of Part XI, 94 in MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 88 reserves the high 

seas for peaceful purposes, while articles 141 and 155(2) reserves the Area [which is defined in the LOS Convention 

art. 1(1) as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction;”] for peaceful 

purposes. ... None of these provisions creates new rights or obligations, imposes restraints upon military operations, 

or impairs the inherent right of self-defense, enshrined in article 51 of the United Nations Charter. More generally, 

military activities which are consistent with principles of international law are not prohibited by these, or any other 

provisions of the Convention.”).

6 Refer to § 14.10.4 (General Use of Outer Space for Peaceful Purposes).

7 Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)); § 13.2.3.4 (High Seas).

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

9 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397.

10 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE 

PRESIDENTS 378 (“Last July, I announced that the United States will not sign the United Nations Law of the Sea 

Convention that was opened for signature on December 10. We have taken this step because several major 

problems in the Convention's deep seabed mining provisions are contrary to the interests and principles of 

industrialized nations and would not help attain the aspirations of developing countries. However, the convention 

also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law 

and practice and fairly balance the interests of all states.”).
879

freedoms on a worldwide basis in a manner that is consistent with the balance of interests 

reflected in the LOS Convention.11 For example, consistent with the LOS Convention, the 

United States has claimed a 12-nautical mile territorial sea.12 Similarly, the United States has 

established a contiguous zone extending 24 nautical miles from the baselines of the United States 

determined in accordance with international law, but in no case within the territorial sea of 

another nation.13

The Agreement on the Implementation of Part XI of the LOS Convention was adopted on 

August 17, 1994.

14 Because this agreement addressed the objections that the United States 

previously expressed to Part XI of the LOS Convention, President Clinton recommended that the 

Senate give its advice and consent to accession to the LOS Convention and to ratification of the 

Agreement on the Implementation of Part XI.

15 Subsequent administrations have also supported 

U.S. accession to the LOS Convention and the ratification of the Agreement on the 

Implementation of Part XI of the LOS Convention.16

13.2 LEGAL BOUNDARIES OF THE OCEANS

The legal classifications of ocean areas may be relevant to the application of the law of 

war and therefore affect military operations during armed conflict by, for example:

 11 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE 

PRESIDENTS 378, 379 (“First, the United States is prepared to accept and act in accordance with the balance of 

interests relating to traditional uses of the oceans - such as navigation and overflight. In this respect, the United 

States will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so long 

as the rights and freedoms of the United States and others under international law are recognized by such coastal 

states. Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a 

worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention. The United 

States will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of 

the international community in navigation and overflight and other related high seas uses.”).

12 Refer to § 13.2.2.2 (Territorial Seas).

13 Refer to § 13.2.3.2 (Contiguous Zones).

14 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 

10 December 1982, annex to U.N. General Assembly Resolution 48/263, U.N. Doc. A/RES/48/263 (Aug. 17, 1994).

15 William J. Clinton, Letter of Transmittal, Oct. 7, 1994, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS

CONVENTION 1 (“As described in the report by the Secretary of State, the Agreement meets the objections the 

United States and other industrialized nations previously expressed to Part XI. It promises to provide a stable and 

internationally recognized framework for mining to proceed in response to future demand for minerals.... I therefore 

recommend that the Senate give early and favorable consideration to the Convention and to the Agreement and give 

its advice and consent to accession to the Convention and to ratification of the Agreement.”).

16 See, e.g., George W. Bush, Statement on the Advancement of United States Maritime Interests, May 15, 2007, 

2007-I PUBLIC PAPERS OF THE PRESIDENTS 583 (“First, I urge the Senate to act favorably on U.S. accession to the 

United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national 

security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure 

U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession 

will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the 

table when the rights that are vital to our interests are debated and interpreted.”); Barack Obama, National Security 

Strategy 50 (May 2010) (“As one key effort in the sea domain, for example, we will pursue ratification of the United 

Nations Convention on the Law of the Sea.”).
880

• determining the legal boundaries of airspace above those waters;17

• determining whether waters are neutral waters;

18

• determining the authority that a belligerent State has with respect to neutral vessels in an 

area;19 or

• determining the authority that a neutral State has with respect to belligerent vessels in an 

area.

20

Waters are often divided analytically between national waters (i.e., internal waters, 

territorial seas, and archipelagic waters), which are subject to the sovereignty of a State, and 

international waters, which are not subject to the sovereignty of any State.21 In addition, special 

rules apply to international straits and archipelagic sea lanes.22

13.2.1 Territory – Notes on Terminology. In some cases, the word “territory” is used to 

describe the land, waters, and airspace subject to the sovereignty of a State.23 In other cases, the 

word “territory” is used to describe only the land that is subject to the sovereignty of a State.24 

Thus, in describing waters that are not subject to the sovereignty of a State (e.g., the 

exclusive economic zone and continental shelf, and high seas), the word “territory” should not be 

used. Coastal States may exercise limited “sovereign rights” over specific functional areas in the 

exclusive economic zone and on the continental shelf, but these rights do not imply sovereignty 

over these areas.25

 17 Refer to § 14.2 (Legal Boundaries of Airspace).

18 Refer to § 15.7.1 (Waters That Are Considered Neutral).

19 Refer to, e.g., § 13.11.3.5 (Restrictions on Where Naval Mines May Be Placed); § 13.10.2.5 (Limitations on the 

Scope of the Blockade).

20 Refer to, e.g., § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic 

Sea Lanes).

21 Refer to § 13.2.2 (National Waters); § 13.2.3 (International Waters).

22 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea 

Lanes).

23 See, e.g., The Ann, 1 F. Cas. 926, 926-27 (C.C.D. Mass. 1812) (Story, J.) (“As the Ann arrived off Newburyport, 

and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States. 

All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or 

marine league, over the waters adjacent to its shores, and this doctrine has been recognized by the supreme court of 

the United States. Indeed such waters are considered as a part of the territory of the sovereign.”) (internal citations 

omitted).

24 See, e.g., 1955 NWIP 10-2 ¶421 (“According to established international law, each State has exclusive legal 

control (jurisdiction) in the air space above its territory, internal waters, and territorial sea.”).

25 See Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on 

Implementation of Part XI, 24, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 56 

enumerates the rights of the coastal State in the EEZ. Article 56(1)(a) establishes the sovereign rights of the coastal 

State. Article 56(1)(b) sets forth the nature and scope of coastal State jurisdiction with respect to specific matters. 
881

13.2.2 National Waters. National waters, which are subject to the sovereignty of a State, 

include internal waters, territorial seas, and archipelagic waters.

13.2.2.1 Internal Waters. A State has sovereignty over its internal waters.26 

Internal waters are generally understood to be those waters on the landward side of the baseline 

of the territorial sea.27 The coastal baseline must be defined in accordance with specific rules of 

international law as reflected in the LOS Convention.28

13.2.2.2 Territorial Seas. The sovereignty of a State extends, beyond its land 

territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial 

sea.29

The United States has claimed a 12-nautical mile territorial sea and recognizes territorial 

sea claims of other nations up to a maximum breadth of 12 nautical miles.30 Previously, the 

 

The terms ‘sovereign rights’ and ‘jurisdiction’ are used to denote functional rights over these matters and do not 

imply sovereignty. A claim of sovereignty in the EEZ would be contradicted by the language of articles 55 and 56 

and precluded by article 58 and the provisions it incorporates by reference.”); id. at 55 (“Article 77 reiterates that the 

coastal State has sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural 

resources. The sovereign rights of the coastal State are balanced with provisions protecting the freedom of 

navigation and the other rights and freedoms of other States from infringement or unjustifiable interference by the 

coastal State. Under article 78, rights of the coastal State over the continental shelf do not affect the legal status of 

the superjacent waters or of the airspace above those waters.”).

26 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The 

sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, 

described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and to 

other rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State 

extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic 

waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over 

the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to 

this Convention and to other rules of international law.”).

27 Convention on the Territorial Sea and Contiguous Zone, art. 5, Apr. 29, 1958, 516 UNTS 205, 210 (“1.Waters on 

the landward side of the baseline of the territorial sea form part of the internal waters of the State.”). Consider LOS

CONVENTION art. 8(1) (“Except as provided in Part IV, waters on the landward side of the baseline of the territorial 

sea form part of the internal waters of the State.”).

28 Consider LOS CONVENTION art. 5 (“Except where otherwise provided in this Convention, the normal baseline for 

measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts 

officially recognized by the coastal State.”).

29 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The 

sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, 

described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and to 

other rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State 

extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic 

waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over 

the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to 

this Convention and to other rules of international law.”).

30 See Ronald Reagan, Proclamation 5928: Territorial Sea of the United States of America, Dec. 27, 1988, 54 

FEDERAL REGISTER 777 (Jan. 9, 1989) (“The territorial sea of the United States henceforth extends to 12 nautical 

miles from the baselines of the United States determined in accordance with international law.”). Consider LOS

CONVENTION art. 3 (“Every State has the right to establish the breadth of its territorial sea up to a limit not 

exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”).
882

United States claimed a three-nautical mile territorial sea.

31 This claim was made in the context 

of asserting the rights of the United States as a neutral State.32

Coastal States often make specific maritime claims, but the United States does not 

recognize those maritime claims that are not in conformity with customary international law, as 

reflected in the LOS Convention.

33

13.2.2.3 Archipelagic Waters. An archipelagic State’s sovereignty extends to 

certain waters enclosed by archipelagic baselines drawn in accordance with the LOS 

Convention.

34

An “archipelago” means a group of islands, including parts of islands, interconnecting 

water, and other natural features that are so closely interrelated that they form an intrinsic 

 31 Thomas Jefferson, Secretary of State, Letter to the British Minister Mr. Hammond (Nov. 8, 1793), I MOORE’S 

DIGEST 702-03 (“The President of the United States thinking that before it shall be finally decided to what distance

from our sea shores the territorial protection of the United States shall be exercised, it will be proper to enter into 

friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, 

and relying that convenient occasions may be taken for these hereafter, finds it necessary in the mean time, to fix 

provisionally on some distance for the present government of these questions. ... Reserving, however, the ultimate 

extent of this for future deliberation, the President gives instructions to the officers acting under his authority to 

consider those heretofore given them as restrained for the present to the distance of one sea league or three 

geographical miles from the sea-shores. This distance can admit of no opposition, as it is recognized by treaties 

between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than 

is claimed by any of them on their own coasts.”).

32 See, e.g., Douglas W. Kmiec, Acting Assistant Attorney General, Legal Issues Raised by the Proposed 

Presidential Proclamation to Extend the Territorial Sea, Oct. 4, 1988, 12 OPINIONS OF THE OFFICE OF LEGAL 

COUNSEL 238, 244 (1988) (“The primary example, of course, is the first claim of a three-mile territorial sea made on 

behalf of the United States by then-Secretary of State Jefferson in 1793. France, Great Britain, and Spain -- all of 

which held territory in North America -- were engaged in maritime hostilities off our Atlantic coast, an extension of 

wars ongoing in Europe. As part of an effort to undermine our policy of neutrality, France pressured us to state the 

extent of our territorial sea.”); United States v. California, 332 U.S. 19, 33 note 16 (1947) (“[S]hortly after we 

became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to 

protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent 

nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted 

throughout the world, although as late as 1876 there was still considerable doubt in England about its scope and 

even its existence.”).

33 DEPARTMENT OF DEFENSE MANUAL 2005.1-M, Maritime Claims Reference, 2 (Jun. 23, 2005) (“The maritime 

claims references in this Manual represent claims made by the coastal nations. Some of the claims are inconsistent 

with international law. The United States does not recognize those maritime claims that are not in conformity with 

customary international law, as reflected in the 1982 United Nations Law of the Sea Convention. Examples include 

excessive straight baseline claims, territorial sea claims in excess of 12 nautical miles (nm), and other claims that 

unlawfully impede freedom of navigation and overflight.”).

34 Consider LOS CONVENTION art. 49(1) (“The sovereignty of an archipelagic State extends to the waters enclosed 

by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of 

their depth and distance from the coast.”); LOS CONVENTION art. 47 (“An archipelagic State may draw straight 

archipelagic baselines joining the outermost posts of the outermost islands and drying reefs of the archipelago 

provided that within such baselines are included the main islands and an area in which the ratio of the area of the 

water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”).
883

geographic, economic, and political entity or that historically have been regarded as such.

35 An 

“archipelagic State” means a State constituted wholly by one or more archipelagos and may 

include other islands.36 The Philippines and Indonesia are examples of archipelagic States.

37

13.2.2.4 Innocent Passage of Foreign Vessels Through Territorial Seas and 

Archipelagic Waters. During peacetime, all ships enjoy a right of innocent passage through 

territorial seas and archipelagic waters.38 A Coastal State, however, has a right of protection, 

which includes the right to suspend temporarily in specified areas of its territorial sea the 

innocent passage of foreign ships if such suspension is essential for the protection of its 

security.39

During armed conflict, the right of innocent passage would not apply between belligerent 

States. During armed conflict, belligerent States may restrict the right of neutral vessels to 

conduct innocent passage through territorial seas and archipelagic waters belonging to a 

belligerent State, such as by establishing maritime zones.40 During armed conflict, neutral States 

may regulate, and even prohibit, belligerent warships and prizes from entering their territorial 

seas and archipelagic waters.41 

13.2.3 International Waters. International waters, which are not subject to the 

sovereignty of any State, include contiguous zones, exclusive economic zones (EEZs), and the

high seas. These waters, which are seaward of the territorial sea, are waters in which States have 

certain freedoms, such as freedom of navigation and overflight.

13.2.3.1 High Seas Freedoms. States may exercise certain freedoms on the high 

 35 Consider LOS CONVENTION art. 46(b) (“‘archipelago’ means a group of islands, including parts of islands, 

interconnecting water and other natural features which are so closely interrelated that [they] form an intrinsic 

geographic, economic, and political entity or which historically have been regarded as such.”).

36 Consider LOS CONVENTION art. 46(a) (“‘archipelagic State’ means a State constituted wholly by one or more 

archipelagos and may include other islands;”).

37 Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation 

of Part XI, 22, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“A State may enclose 

archipelagic waters within archipelagic baselines that satisfy the criteria specified in Article 47. Depending on how 

the archipelagic baseline system is established, the following 20 States could legitimately claim archipelagic waters: 

Antigua & Barbuda, The Bahamas, Cape Verde, Comoros, Fiji, Grenada, Indonesia, Jamaica, Kiribati (in part), 

Maldives, Marshall Islands (in part), Papua New Guinea, Philippines, Saint Vincent and the Grenadines, Sao Tome 

& Principe, Seychelles, Solomon Islands (five archipelagos), Tonga, Trinidad & Tobago, and Vanuatu.”).

38 Consider LOS CONVENTION art. 17 (“Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea.”); LOS CONVENTION art. 52 (“1. Subject to 

article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through 

archipelagic waters, in accordance with Part II, section 3.”).

39 Consider LOS CONVENTION art. 25(3) (“The coastal State may, without discrimination in form or in fact among 

foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if 

such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall 

take effect only after having been duly published.”).

40 Refer to § 13.9.4 (Use of Zones to Prevent Movement – Exclusion Zones).

41 Refer to § 15.7.2 (A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its Waters).
884

seas, such as freedom of navigation and freedom of overflight.42 For example, the high seas 

freedoms that warships may exercise include: task force maneuvering, flight operations, military 

exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.43 These 

rights and freedoms must be exercised with due regard for the interests of other States in their 

exercise of the freedom of the high seas and other applicable rights.44

Within a State’s EEZ, other States enjoy high seas freedoms of navigation and overflight, 

and other rights, but must exercise those rights with due regard for the rights and duties of the 

coastal State.45

13.2.3.2 Contiguous Zones. A contiguous zone is an area extending seaward from 

the territorial sea to a maximum distance of 24 nautical miles from the baseline, in which the 

coastal State may exercise the control necessary to prevent or punish infringement of its customs, 

fiscal, immigration, and sanitary laws and regulations that occurs within its territory or territorial 

sea.

46

 42 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 83-84 (“Freedom of the high seas is exercised 

under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, 

both for coastal and non coastal states: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay 

submarine cables and pipelines; (4) Freedom to fly over the high seas.”). Consider LOS CONVENTION art. 87(1) 

(“The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under 

the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for 

coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine 

cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted 

under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; 

(f) freedom of scientific research, subject to Parts VI and XIII.”).

43 2007 NWP 1-14M ¶2.6.3 (“All ships and aircraft, including warship and military aircraft, enjoy complete freedom 

of movement and operation on and over the high seas. For warships, this includes task force maneuvering, flight 

operations, military exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.”); 1997 

NWP 9 ¶2.4.3 (same); 1989 NWP 9 ¶2.4.3 (same).

44 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 84 (“These freedoms, and others which are 

recognized by the general principles of international law, shall be exercised by all States with reasonable regard to 

the interests of other States in their exercise of the freedom of the high seas.”). Consider LOS CONVENTION art. 

87(2) (“These freedoms shall be exercised by all States with due regard for the interests of other States in their 

exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect 

to activities in the Area.”).

45 Consider LOS CONVENTION art. 58 (“1. In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of 

navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses 

of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine 

cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other 

pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with 

this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic 

zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and 

regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of 

international law in so far as they are not incompatible with this Part.”).

46 Convention on the Territorial Sea and Contiguous Zone, art. 24, Apr. 29, 1958, 516 UNTS 205, 220 (“1. In a zone 

of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: (a) Prevent 

infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) 

Punish infringement of the above regulations committed within its territory or territorial sea.”). Consider LOS
885

The United States has established a contiguous zone extending 24 nautical miles from the 

baselines of the United States determined in accordance with international law, but in no case 

within the territorial sea of another nation.47

13.2.3.3 Exclusive Economic Zones (EEZs). An Exclusive Economic Zone (EEZ)

is a zone of limited, generally resource-related rights and jurisdiction adjacent to the territorial 

sea and may not extend beyond 200 nautical miles from the baseline.48 The United States has 

established an exclusive economic zone.49

Although a coastal State does not have sovereignty over its EEZ, it has certain, generally

economic rights over these areas that must be exercised with due regard for the rights and duties 

of other States, such as the high seas freedoms of other States.

50 

13.2.3.4 High Seas. International law regarding the high seas applies to all parts 

of the sea that are not included in the EEZ, territorial sea, internal waters, or archipelagic waters 

 CONVENTION art. 33 (“1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal 

State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary 

laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations 

committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles 

from the baselines from which the breadth of the territorial sea is measured.”).

47 William J. Clinton, Proclamation 7219: Contiguous Zone of the United States, Aug. 2, 1999, 64 FEDERAL 

REGISTER 48701 (Aug. 8, 1999) (“The contiguous zone of the United States extends to 24 nautical miles from the 

baselines of the United States determined in accordance with international law, but in no case within the territorial 

sea of another nation.”).

48 Consider LOS CONVENTION art. 55 (“The exclusive economic zone is an area beyond and adjacent to the 

territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of 

the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this 

Convention.”); LOS CONVENTION art. 57 (“The exclusive economic zone shall not extend beyond 200 nautical miles 

from the baselines from which the breadth of the territorial sea is measured.”).

49 Ronald Reagan, Proclamation 5030: Exclusive Economic Zone of the United States of America, Mar. 10, 1983, 

97 STAT. 1557 (“The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea, 

including zones contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations 

Trusteeship Agreement), and United States overseas territories and possessions. The Exclusive Economic Zone 

extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. 

In cases where the maritime boundary with a neighboring State remains to be determined, the boundary of the 

Exclusive Economic Zone shall be determined by the United States and other State concerned in accordance with 

equitable principles.”).

50 Consider LOS CONVENTION art. 56 (“1. In the exclusive economic zone, the coastal State has: (a) sovereign 

rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or 

non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other 

activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, 

currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) 

the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the 

protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. 

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the 

coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with 

the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be 

exercised in accordance with Part VI.”).
886

of an archipelagic State.51 No State may validly purport to subject any part of the high seas to its 

sovereignty.

52 States may exercise certain freedoms on the high seas, such as freedom of 

navigation and freedom of overflight.53

13.2.4 Chart Illustrating the Legal Boundaries of the Oceans and Airspace. This chart, 

reproduced from the 2007 Commander’s Handbook on the Law of Naval Operations, seeks to 

summarize the maximum permissible claims of States with respect to the boundaries of the 

oceans and airspace, as reflected in the LOS Convention.

54

 51 Convention on the High Seas, art. 1, Apr. 29, 1958, 450 UNTS 82 (“The term ‘high seas’ means all parts of the 

sea that are not included in the territorial sea or in the internal waters of a State.”). Consider LOS CONVENTION art. 

86 (“The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in 

the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This 

article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in 

accordance with article 58.”).

52 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82 (“The high seas being open to all nations, no 

State may validly purport to subject any part of them to its sovereignty.”). Consider LOS CONVENTION art. 89 (“No 

State may validly purport to subject any part of the high seas to its sovereignty.”).

53 Refer to § 13.2.3.1 (High Seas Freedoms).

54 2007 NWP 1-14M ¶1.3, Figure 1-1. See also Commentary—The 1982 United Nations Convention on the Law of 

the Sea and the Agreement on Implementation of Part XI, 4, Figure 1, MESSAGE FROM THE PRESIDENT 

TRANSMITTING LOS CONVENTION; JOINT PUBLICATION 3-32, Command and Control for Joint Maritime Operations, 

I-7, Figure I-1 (Aug. 7, 2013); JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, INTERNATIONAL AND 

OPERATIONAL LAW DEPARTMENT, OPERATIONAL LAW HANDBOOK 160 (2013).
887

13.3 OVERVIEW OF RULES FOR NAVAL ENGAGEMENTS

In general, the rules for conducting attacks, such as bombardments, by naval forces are 

the same as those for land or air forces.55

13.3.1 Areas of Naval Warfare. As a general rule, naval forces may attack military 

objectives wherever located outside neutral territory.56 In certain cases (e.g., involving 

belligerent use of neutral territory as a base of operations), hostilities may be conducted in 

neutral territory to redress violations of neutrality.57

13.3.2 Classification of Vessels. The law of land warfare has divided enemy nationals 

into different categories in order to facilitate the protection of the civilian population from 

hostilities.58 Similarly, the law of naval warfare has sought to classify enemy vessels to protect 

those that are civilian or non-combatant in character.

In general, all vessels of an enemy State may be understood to fall into one of three 

classes: (1) warships and naval and military auxiliaries; (2) merchant vessels; and (3) exempt 

vessels.

Warships and naval and military auxiliaries are generally liable to attack and capture.59 

Merchant vessels are generally liable to capture, but are liable to attack if they forfeit their 

protection.60 Exempt vessels are not liable to capture or attack, unless they forfeit their 

protection.61

13.3.3 Vessels Entitled to Conduct Attacks. During international armed conflict at sea, 

warships are the only vessels that are entitled to conduct attacks.

62

Other vessels, such as auxiliary vessels and merchant vessels, are not entitled to conduct 

attacks in offensive combat operations.63 All vessels, however, may defend themselves 

 55 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

56 Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of 

Neutrality).

57 Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent 

Violations of Neutrality).

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

59 Refer to § 13.4 (Enemy Warships).

60 Refer to § 13.5 (Enemy Merchant Vessels).

61 Refer to § 13.6 (Enemy Vessels Exempt From Capture or Destruction).

62 See 1955 NWIP 10-2 ¶500e (“At sea, only warships and military aircraft may exercise belligerent rights.”).

63 2013 GERMAN MANUAL ¶1020 (“The following vessels and persons may not perform acts of naval warfare: -

state ships other than warships, even when carrying out support services for the naval forces, - merchant ships, -

fishing vessels and other civilian ships, - prize crews of captured ships, - state aircraft other than military aircraft 

and - civilian aircraft. The crews of all ships and aircraft are, however, entitled to defend themselves against attacks 

by enemy armed forces.”); 1992 GERMAN MANUAL ¶1016 (“The following vessels and persons may not perform 
888

(including resisting attacks by enemy forces).64

13.3.3.1 Entitlement of Vessels to Conduct Attacks During Non-International 

Armed Conflict. The United States is not a Party to any treaties that would prohibit the use of 

warships and auxiliaries in non-international armed conflict, nor has the United States 

recognized such a prohibition in customary international law. Accordingly, State vessels other 

than warships may be used to conduct attacks against non-State armed groups during noninternational armed conflict.

65 For example, international law does not prohibit auxiliaries from 

conducting attacks in a non-international armed conflict. Similarly, a State may use its law 

enforcement authorities to address insurgent groups, and there would be no objection to using a 

law enforcement vessel as part of operations against insurgents.66

In some cases, the acts of hostility by insurgents on the high seas may be regarded as 

piracy.67

13.3.4 Shipwrecked Persons. Shipwrecked persons are hors de combat, and may not be 

made the object of attack.68 Shipwrecked persons include personnel involved in forced landings 

at sea by or from aircraft, but do not include, for example, combatant personnel engaged in 

attacks.

69

 acts of naval warfare: - state ships other than warships, even when carrying out support Services for the naval 

forces, - state aircraft other than military aircraft, - merchant ships, - fishing boats and other civil ships, - civil 

aircraft, and - prize crews of captured ships. The crews of all ships and aircraft are, however, entitled to defend 

themselves against attacks by enemy forces.”).

64 See Institute of International Law, Manual of the Laws of Naval War, art. 12 (1913) (“Apart from the conditions 

laid down in Articles 3 [regarding the conversion of public and private vessels into war-ships] and following, neither 

public nor private vessels, nor their personnel, may commit acts of hostility against the enemy. Both may, however, 

use force to defend themselves against the attack of an enemy vessel.”). Refer to § 4.16.1 (Merchant or Civil Crews 

- Conduct of Hostilities).

65 Wolff Heintschel von Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, 88 

U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 211, 219 (2012) (“Under the law of international armed 

conflict, only warships are entitled to exercise belligerent rights. This rule goes back to the prohibition of 

privateering under the 1856 Paris Declaration. Warships are those vessels that meet the criteria set forth in Articles 

2-5 of the 1907 Hague Convention VII, Article 8(2) of the 1958 High Seas Convention and Article 29 of the LOS 

Convention. Limitations on the exercise of belligerent rights are most important with regard to interference with

neutral navigation and aviation; thus, neutral vessels and aircraft must accede to such interference only if the 

measures are taken by warships. No such limitation applies to non-international armed conflicts vis-à-vis the 

parties. It follows from the object and purpose of the rule limiting the exercise of belligerent rights under the law of 

naval warfare—i.e., the transparent entitlement of the warship—that the non-State actor will obviously not have 

ships that meet the criteria for classification as a warship since one of the criteria is that it be a State vessel. The 

government forces may make use of any vessel or aircraft, including, for example, those used for law enforcement 

and customs enforcement, in the conduct of hostilities.”).

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

67 The Three Friends, 166 U.S. 1 (1897) (“Belligerency is recognized when a political struggle has attained a certain 

magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition 

may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates.”).

68 Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck).

69 Refer to § 7.3.1.2 (Shipwrecked).
889

As far as military exigencies permit, after each naval engagement, all possible measures 

should be taken without delay to search for and collect the wounded, sick, and shipwrecked, and 

to recover the dead.70

13.3.5 Surrender by Enemy Vessels. The general rules on the protection of persons hors 

de combat, including the rule prohibiting the attack of persons who have surrendered, also apply 

to enemy vessels.71 In particular, it is forbidden to make an enemy vessel the object of attack if 

it has genuinely, clearly, and unconditionally surrendered, in circumstances in which it is feasible 

to accept such surrender.72

Once an enemy vessel has clearly indicated a readiness to surrender, the attack must be

discontinued.73 Indicia of surrender by vessels may include:

• hauling down her flag;

• hoisting a white flag;

74

• surfacing (in the case of submarines);

75

• stopping engines and responding to the attacker’s signals;

76 or 

• taking to lifeboats.

 70 Refer to § 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the 

Wounded, Sick, Shipwrecked, and Dead).

71 Refer to § 5.9.3 (Persons Who Have Surrendered).

72 2007 NWP ¶8.6.1 (“It is forbidden, however, to target an enemy warship or military aircraft that in good faith 

unambiguously and effectively conveys a timely offer of surrender.”); 1955 NWIP ¶511c (“It is forbidden to refuse 

quarter to any enemy who has surrendered in good faith. In particular, it is forbidden either to continue to attack 

enemy warships and military aircraft which have clearly indicated a readiness to surrender or to fire upon the 

survivors of such vessels and aircraft who no longer have the means to defend themselves.”).

73 2007 NWP 1-14M ¶8.6.1 (“Once an enemy warship has clearly indicated a readiness to surrender, such as by 

hauling down her flag, by hoisting a white flag, by surfacing (in the case of submarines), by stopping engines and 

responding to the attacker’s signals, or by taking to lifeboats, the attack must be discontinued.”).

74 Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).

75 W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS

134 (1968) (“The duty to give quarter is, of course, the same in submarine warfare as it is in other naval warfare. 

There are undoubtedly unusual problems which occur concerning manifestations of surrender in submarine warfare. 

A submarine even when fully surfaced lies low in the water. There may be, consequently, particular difficulties in 

observing a submarine's manifestation of surrender. Where a submarine is forced to the surface following depth 

charging, it seems reasonable that the submarine's commander should be given an opportunity to surrender unless an 

unequivocal intention of fighting it out on the surface is manifested. The attempt of a surface ship to indicate 

surrender to a submerged submarine also raises problems. For example, it is clear that the submerged submarine at 

periscope depth has only limited visibility.”).

76 Trial of Helmuth von Ruchteschell, Outline of the Proceedings, IX U.N. LAW REPORTS 82 (British Military Court, 

Hamburg, May 5-21, 1947) (“The captain of the Davisian stopped his engines, hoisted an answering pennant and 

acknowledged the signal. In spite of this, the raider’s firing continued for 15 minutes, wounding 8 or 10 of the crew 

of the Davisian, whilst they were trying to abandon ship [by taking to lifeboats].”).
890

13.4 ENEMY WARSHIPS

Enemy warships and naval and military auxiliaries are subject to attack, destruction, or 

capture anywhere beyond neutral territory. 

13.4.1 Character of Warships. A warship is generally understood to be a ship belonging 

to the armed forces of a State bearing the external markings distinguishing the character and 

nationality of such ships, under the command of an officer duly commissioned by the 

government of that State and whose name appears in the appropriate service list of officers, and 

manned by a crew that is under regular armed forces discipline.77

Warships are generally understood to possess certain privileges and immunities from the 

jurisdiction of other States.

78

13.4.2 Attacks Against Enemy Warships. In general, enemy warships are military 

objectives.79 However, warships that have surrendered or that are exempt vessels may not be 

made the object of attack.80

13.4.3 Captured Enemy Warships – No Prize Procedure. Prize procedures are not used 

for captured enemy warships because their ownership vests immediately in the captor’s 

government by the fact of capture.81 As public movable property, warships are seizable as war 

booty.82 Similarly, prize procedures are not used for captured enemy military aircraft.83

 77 Convention on the High Seas, art. 8, Apr. 29, 1958, 450 UNTS 82, 86 (“1. Warships on the high seas have 

complete immunity from the jurisdiction of any State other than the flag State. 2. For the purposes of these articles, 

the term ‘warship’ means a ship belonging to the naval forces of a State and bearing the external marks 

distinguishing warships of its nationality, under the command of an officer duly commissioned by the government 

and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.”). 

Consider LOS CONVENTION art. 29 (“For the purposes of this Convention, ‘warship’ means a ship belonging to the 

armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of 

an officer duly commissioned by the government of the State and whose name appears in the appropriate service list 

or its equivalent, and manned by a crew which is under regular armed forces discipline.”).

78 See, e.g., The Schooner Exch. v. McFaddon, 11 U.S. 116, 144 (1812) (“But in all respects different is the situation 

of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct 

command of the sovereign; is employed by him in national objects. He has many and powerful motives for 

preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take 

place without affecting his power and his dignity. The implied license therefore under which such vessel enters a 

friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an 

exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality.”). 

Consider LOS CONVENTION art. 95 (“Warships on the high seas have complete immunity from the jurisdiction of 

any State other than the flag State.”).

79 Refer to § 5.6.4 (Objects Categorically Recognized as Military Objectives).

80 Refer to § 13.3.5 (Surrender by Enemy Vessels); § 13.6 (Enemy Vessels Exempt From Capture or Destruction).

81 1955 NWIP 10-2 ¶503a(2) (“Enemy warships and military aircraft may be captured outside neutral jurisdiction. 

Prize procedure is not used for such captured vessels and aircraft because their ownership immediately vests in the 

captor’s government by the fact of capture.”).

82 Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

83 Refer to § 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).
891

13.5 ENEMY MERCHANT VESSELS

13.5.1 Capture of Enemy Merchant Vessels. Enemy merchant vessels may be captured 

wherever located beyond neutral territory. Prior exercise of visit and search is not required, 

provided positive determination of enemy status can be made by other means.84

13.5.1.1 Captured Enemy Merchant Vessels – Notes on Terminology. A captured 

neutral or enemy merchant vessel is called a prize.

13.5.1.2 Use of Prize Procedures to Complete Transfer of Title. Prize procedures 

are usually used to complete the transfer of title of captured property, such as enemy merchant 

ships.

85

13.5.1.3 Destruction of Captured Enemy Merchant Vessels. When military 

circumstances preclude sending or taking in such vessel or aircraft for adjudication as an enemy 

prize, it may be destroyed after all possible measures are taken to provide for the safety of 

passengers and crew.86 Documents and papers relating to the prize should be safeguarded and, if 

practicable, the personal effects of passengers should be saved.87 Every case of destruction of a 

captured enemy prize should be reported promptly to higher command.88

The destruction of neutral prizes involves similar procedures, but a more serious 

responsibility.89

13.5.2 Attack of Enemy Merchant Vessels. Enemy merchant vessels may be made the 

 84 2007 NWP 1-14M ¶8.6.2.1 (“Enemy merchant vessels and civil aircraft may be captured wherever located beyond 

neutral territory. Prior exercise of visit and search is not required, provided positive determination of enemy status 

can be made by other means.”).

85 See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 482 (§192) (“It has already been stated above that 

the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through its 

adjudication that the vessel becomes finally appropriated.”); Oakes v. United States, 174 U.S. 778, 786-87 (1899) 

(“By the law of nations, recognized and administered in this country, when movable property in the hands of the 

enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as 

soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a 

judicial decree of condemnation is usually necessary to complete the title of the captors.”).

86 2007 NWP 1-14M ¶8.6.2.1 (“When military circumstances preclude sending or taking in such vessel or aircraft 

for adjudication as an enemy prize, it may be destroyed after all possible measures are taken to provide for the safety 

of passengers and crew.”); 1955 NWIP 10-2 ¶503b(2) (“Enemy merchant vessels and aircraft which have been 

captured may, in case of military necessity, be destroyed by the capturing officer when they cannot be sent or 

escorted in for adjudication. Should the necessity for the destruction of an enemy prize arise, it is the duty of the 

capturing officer to take all possible measures to provide for the safety of passengers and crew.”).

87 1955 NWIP 10-2 ¶503b(2) (“All documents and papers relating to an enemy prize should be saved. If practicable, 

the personal effects of passengers should be saved.”).

88 1955 NWIP 10-2 ¶503b(2) (“Every case of destruction of an enemy prize should be reported promptly to higher 

command.”).

89 Refer to § 15.15.3 (Destruction of Neutral Prizes).
892

object of attack, outside neutral territory, if they constitute a military objective.90

In particular, enemy merchant vessels may be attacked and destroyed by warships, either 

with or without prior warning, in any of the following circumstances:91

• persistently refusing to stop upon being duly summoned to do so;

• actively resisting visit and search or capture;

• sailing under convoy of enemy warships or enemy military aircraft;

• armed with systems or weapons beyond that required for self-defense against terrorist, 

piracy, or like threats;

• if incorporated into, or assisting, the enemy’s military intelligence system;

• if acting in any capacity as a naval or military auxiliary to an enemy’s armed forces; or

• if otherwise integrated into the enemy’s war-fighting/war-sustaining effort such that a 

belligerent warship’s compliance with the rules of the 1936 London Protocol would, 

under the circumstances of the specific encounter, subject the warship to imminent 

danger or would otherwise preclude mission accomplishment.

The 1936 London Protocol provides that “except in the case of persistent refusal to stop 

on being duly summoned, or of active resistance to visit or search, a warship, whether surface 

vessel or submarine, may not sink or render incapable of navigation a merchant vessel without 

having first placed passengers, crew and ship’s papers in a place of safety.”92 Merchant vessels 

 90 Refer to § 5.6 (Military Objectives).

91 2007 NWP 1-14M ¶8.6.2.2 (“Accordingly, enemy merchant vessels may be attacked and destroyed by surface 

warships, either with or without prior warning, in any of the following circumstances: 1. Persistently refusing to 

stop upon being duly summoned to do so 2. Actively resisting visit and search or capture 3. Sailing under convoy of 

enemy warships or enemy military aircraft 4. If armed with systems or weapons beyond that required for selfdefense against terrorist, piracy, or like threats 5. If incorporated into, or assisting in any way, the intelligence 

system of the enemy’s armed forces 6. If acting in any capacity as a naval or military auxiliary to an enemy’s armed 

forces 7. If integrated into the enemy’s war-fighting/war-sustaining effort and compliance with the rules of the 1936 

London Protocol would, under the circumstances of the specific encounter, subject the surface warship to imminent 

danger or would otherwise preclude mission accomplishment.”); 1955 NWIP 10-2 ¶503b(3) (“Destruction of Enemy 

Merchant Vessels Prior to Capture. Enemy merchant vessels may be attacked and destroyed, either with or without 

prior warning, in any of the following circumstances: 1. Actively resisting visit and search or capture. 2. Refusing 

to stop upon being duly summoned. 3. Sailing under convoy of enemy warships or enemy military aircraft. 4. If 

armed, and there is reason to believe that such armament has been used, or is intended for use, offensively against an 

enemy. 5. If incorporated into, or assisting in any way, the intelligence system of an enemy’s armed forces. 6. If 

acting in any capacity as a naval or military auxiliary to an enemy’s armed forces.”).

92 Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 

22, 1930, Nov. 6, 1936, 173 LNTS 353, 357. See Treaty for the Limitation and Reduction of Naval Armament, art. 

22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (“In particular, except in the case of persistent refusal to stop on being 

duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not 

sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship’s 

papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of 
893

in the sense of this rule, however, do not include merchant vessels that constitute military 

objectives.93

13.5.2.1 Attack of Civilian Passenger Vessels. If a civilian passenger vessel 

constitutes a military objective and thus is liable to attack, any attack must comply with other 

applicable rules related to attacks.94

In particular, attacks against civilian passenger vessels engaged in passenger service must 

comply with the requirement that the expected loss of life or injury to civilians, and damage to 

civilian objects incidental to the attack, must not be excessive in relation to the concrete and 

direct military advantage expected to be gained.95

13.5.3 Detention of Personnel From Enemy Merchant Vessels. Officers and crews of 

captured enemy merchant ships may be detained.96 If detained, such persons are POWs.97

Other civilian enemy nationals on board such captured ships as private passengers are 

subject to the discipline of the captor.98 If detained, such persons must, at a minimum, be 

afforded certain fundamental guarantees of humane treatment.99

Nationals of a neutral State on board captured enemy merchant vessels should not be 

detained unless they have participated in acts of hostility or resistance against the captor, or are 

 the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the 

presence of another vessel which is in a position to take them on board.”).

93 Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE HANDBOOK OF 

HUMANITARIAN LAW IN ARMED CONFLICTS 428-29 (¶1025) (1999) (“The rules laid down in that document formed 

part of the 1922 Washington Treaty and were reaffirmed by the 1930 London Conference. During that conference a 

committee of legal experts presented a report in which the matter was clarified as follows: ‘The Committee wish to 

place it on record that the expression ‘merchant vessel’, where it is employed in the declaration, is not to be 

understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to 

cause her to lose her right to the immunities of a merchant vessel.’ Whereas it remains unclear what is meant by 

‘participating in hostilities’ it is obvious that merchant vessels are not in all circumstances protected by the 1936 

London Protocol. This was confirmed by the judgment of the Nuremberg Tribunal. Hence, enemy merchant vessels 

that, by their conduct, qualify as legitimate military objectives are not protected by the 1936 London Protocol and 

may—as an exceptional measure—be attacked and sunk.”).

94 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

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

96 2007 NWP 1-14M ¶8.6.2.1 (“Officers and crews of captured enemy merchant ships and civilian aircraft may be 

detained.”); 1955 NWIP 10-2 ¶512 (“The officers and crews of captured enemy merchant vessels and aircraft may 

be made prisoners of war.”).

97 Refer to § 4.16.2 (Merchant or Civil Crews – Detention).

98 2007 NWP 1-14M ¶8.6.2.1 (“Other enemy nationals on board such captured ships and aircraft as private 

passengers are subject to the discipline of the captor.”); 1955 NWIP 10-2 ¶512 (“Other enemy nationals on board 

captured enemy merchant vessels and aircraft as private passengers are subject to the discipline of a captor.”).

99 Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).
894

otherwise in the service of the enemy.100

13.6 ENEMY VESSELS EXEMPT FROM CAPTURE OR DESTRUCTION

Certain classes of enemy vessels are exempt from capture or destruction, provided they 

are innocently and solely employed in the activities that enjoy exempted status. 

Exempt vessels may not be used for purposes outside their innocent role while taking 

advantage of their harmless appearance. Warships may not be disguised as exempt vessels.

101

13.6.1 Duties of Exempt Vessels. These specially protected vessels must not take part in 

hostilities or assist the enemy’s military effort in any manner. 

Such vessels and boats are subject to the regulations of a belligerent naval commander 

operating in the area.102 They must not hamper the movement of combatants, must submit to 

identification and inspection procedures, and may be ordered out of harm’s way. Refusal to 

provide immediate identification upon demand is ordinarily sufficient legal justification for 

capture or destruction. 

13.6.2 Classes of Exempt Vessels. Specifically exempt vessels include: (1) cartel 

vessels; (2) hospital ships; (3) vessels charged with religious, non-military scientific, or 

philanthropic missions; (4) vessels granted safe conduct; and (5) small fishing and trade 

vessels.103

13.6.2.1 Cartel Vessels. Vessels and aircraft designated for, and engaged in, the 

exchange of POWs are privileged from capture.104

 100 2007 NWP 1-14M ¶8.6.2.1 (“Nationals of a neutral nation on board captured enemy merchant vessels and 

civilian aircraft should not be detained unless they have participated in acts of hostility or resistance against the 

captor or are otherwise in the service of the enemy.”); 1955 NWIP 10-2 ¶512 (“The nationals of a neutral state on 

board captured enemy merchant vessels and aircraft as private passengers should not be made prisoners of war.”). 

Refer to § 15.6.2 (Forfeiture of Protections of Neutral Status by a Neutral Person).

101 Refer to § 13.13 (Deception by Naval Forces, Including the Use of Enemy or Neutral Flags).

102 Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

103 1955 NWIP 10-2 ¶503c (“The following enemy vessels and aircraft, when innocently employed, are exempt from 

destruction or capture: 1. Cartel vessels and aircraft, i.e., vessels and aircraft designated for and engaged in the 

exchange of prisoners. 2. Properly designated hospital ships, medical transports, and medical aircraft. 3. Vessels 

charged with religious, scientific, or philanthropic missions. 4. Vessels and aircraft guaranteed safe conduct by prior 

arrangement between the belligerents. 5. Vessels and aircraft exempt by proclamation, operation plan, order, or 

other directive. 6. Small costal (not deep-sea) fishing vessels and small boats engaged in local coastal trade and not 

taking part in hostilities. Such vessels and boats are subject to the regulations of a belligerent naval commander 

operating in the area.”).

104 See, e.g., The Brig “Betsey”, 49 Ct. Cl. 125, 132 (Ct. Cl. 1913) (“What is a cartel in warfare of the nations? An 

agreement between belligerents for the exchange of prisoners. What is a cartel ship except a vessel of belligerents 

duly commissioned for the carriage by sea of exchanged prisoners from enemy country to their own country or for 

the carriage of official communications to and from enemies?”); The Adula, 176 U.S. 361, 379-80 (1900) (“While 

the mission of the Adula was not an unfriendly one to this Government, she was not a cartel ship, privileged from 

capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only 
895

13.6.2.2 Hospital Ships That Meet the Requirements of the GWS-Sea. Hospital 

ships, including military hospital ships, commissioned civilian hospital ships, and authorized 

neutral hospital ships, that meet the requirements of the GWS-Sea are exempt from capture.105 

Hospital ships do not forfeit their exempt status if they are armed for self-defense purposes or if 

they possess or use communications equipment with encryption.

Hospital ships may be armed with defensive weapon systems, including when necessary 

certain crew-served weapons, as a prudent anti-terrorism/force protection (AT/FP) measure to 

defend against small boat attacks.106 The 1949 Geneva Conventions do not directly address 

weapons systems for hospital ships, but they do expressly provide for the arming of crew 

members with small arms for the maintenance of order and for the self-defense of the crew or the 

sick and wounded.107 The arming of the ship with crew-served weapons for self-defense of the 

ship is not prohibited and is consistent with the ship’s humanitarian purpose and the crew’s duty 

to safeguard the wounded and sick.

The GWS-Sea provides that hospital ships may not use or possess “secret codes” as 

means of communication; however, state practice has evolved to accept that modern 

communications systems (e.g., satellite communications and video teleconference systems) and 

navigational technology (e.g., global positioning systems) require encryption.108 Such systems 

must not be used for military purposes or in any way that is harmful to an adversary.109 

13.6.2.3 Vessels Charged With Religious, Nonmilitary Scientific, or Philanthropic 

Missions. Vessels charged with religious, nonmilitary scientific, or philanthropic missions are 

exempt from capture.

110 Vessels engaged in the collection of scientific data of potential military 

application, however, would not be included within this exemption.

13.6.2.4 Vessels Granted Safe Conduct. Vessels and aircraft guaranteed safe 

 

secondarily, if at all, for the purpose of humanity.”); Crawford v. The William Penn., 6 F. Cas. 778, 780-81 

(C.C.D.N.J. 1815) (“What is the character of a cartel vessel, and of the persons concerned in her navigation? The 

flag of truce which she carries, throws over her and them the mantle of peace. She is, pro hac vice, a neutral 

licensed vessel; and all persons concerned in her navigation, upon the particular service in which both belligerents 

have employed her, are neutral, in respect to both, and under the protection of both. She cannot carry on commerce 

under the protection of her flag, because this was not the business for which she was employed, and for which the 

immunities of that flag were granted to her. She is engaged in a special service, to carry prisoners from one place to 

another; and, whilst so engaged, she is under the protection of both belligerents, in relation to every act necessarily 

connected with that service.”).

105 Refer to § 7.12.1.1 (Military Hospital Ships); § 7.12.1.2 (Commissioned Civilian Hospital Ships); § 7.12.1.3

(Authorized Neutral Civilian Hospital Ships).

106 Refer to § 7.12.6.2 (Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vessels of Their 

Protection).

107 Refer to § 7.12.6.3 (Arming of Hospital Ships and Equipping Them With Defensive Devices).

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

109 Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.10.3.1 (Acts Harmful to the Enemy).

110 HAGUE XI art. 4 (“Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from 

capture.”).
896

conduct by prior arrangement between the belligerents are exempt from capture.

111

13.6.2.5 Small Coastal Fishing Vessels and Small Boats Engaged in Local 

Coastal Trade. Small coastal (not deep-sea) fishing vessels and small boats engaged in local 

coastal trade are exempt from capture.112

13.7 SUBMARINE WARFARE

13.7.1 General Principle – Same Rules Applicable to Both Submarine and Surface 

Warships. Submarine warships must comply with the same law of war rules that apply to 

surface warships.

113 For example, in their action with regard to merchant ships, submarines must 

conform to the law of war rules to which surface vessels are subject.114 In general, submarines 

must provide for the safety of passengers, crew, and ship’s papers before destruction of an

enemy merchant vessel.115 However, the same exceptions to this rule that permit surface ships to 

attack enemy merchant vessels that are military objectives also permit submarines to conduct 

such attacks.116

13.7.2 Different Application of Law of War Rules in the Context of Submarine Warfare. 

Although submarines must comply with the same law of war rules as surface ships, a law of war 

rule may apply differently in the context of submarine warfare because of the different 

circumstances of submarine warfare as compared to surface warfare.

For example, like surface warships, submarine warships also have an obligation to search 

 111 Refer to § 12.6.3 (Safe Conduct).

112 HAGUE XI art. 3 (“Vessels used exclusively for fishing along the coast or small boats employed in local trade are 

exempt from capture, as well as their appliances, rigging, tackle, and cargo. They cease to be exempt as soon as 

they take any part whatever in hostilities. The Contracting Powers agree not to take advantage of the harmless 

character of the said vessels in order to use them for military purposes while preserving their peaceful appearance.”); 

The Paquete Habana, 175 U.S. 677, 708 (1900) (“This review of the precedents and authorities on the subject 

appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the 

world, and independently of any express treaty or other public act, it is an established rule of international law, 

founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of 

belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and 

honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of 

war. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike 

purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a 

necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels 

employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but 

are salted or otherwise cured and made a regular article of commerce.”).

113 2007 NWP 1-14M ¶8.7 (“The law of armed conflict imposes essentially the same rules on submarines as apply to 

surface warships.”); 1997 NWP 9 ¶8.3 (same); 1989 NWP 9 ¶8.3 (same).

114 Treaty for the Limitation and Reduction of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881 (“In 

their action with regard to merchant ships, submarines must conform to the rules of International Law to which 

surface vessels are subject.”). Consider Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part 

IV of the Treaty of London of April 22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).

115 Refer to § 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels).

116 Refer to § 13.5.2 (Attack of Enemy Merchant Vessels).
897

for and collect the shipwrecked, wounded, and sick after an engagement.117 This obligation, 

however, is subject to certain practical limitations, and the practical limitations faced by 

submarines may be different than those faced by surface vessels.118 For example, although a 

surface warship might be able to take on board survivors after an engagement, a submarine may 

have limited passenger carrying capabilities. Thus, it may be necessary to rely on other 

measures (e.g., such as passing the location of possible survivors to a surface ship, aircraft, or 

shore facility capable of rendering assistance) to comply with the law of war obligation.

119

13.8 BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF NAVAL OPERATIONS

13.8.1 Belligerent Right to Establish Special Restrictions in the Immediate Area of Naval 

Operations. Within the immediate area or vicinity of naval operations, to ensure proper battle 

space management and self-defense objectives, a belligerent State may establish special 

restrictions upon the activities of neutral vessels and aircraft, and may prohibit altogether such 

vessels and aircraft from entering the area.120

The immediate area or vicinity of naval operations is that area within which hostilities are 

taking place, or belligerent State forces are actually operating.

121

 117 Refer to § 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the 

Wounded, Sick, Shipwrecked, and Dead).

118 Refer to § 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the 

Wounded, Sick, and Shipwrecked).

119 Affidavit subscribed by Chester W. Nimitz, Fleet Admiral, Chief of Naval Operations, U.S. Navy from Joseph L. 

Broderick, Lieutenant Commander, U.S. Naval Reserve, of the International Law Section, Office of the Judge 

Advocate General, Navy Department (11 May 1946), in XVII TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 379-80 (“13. Q: ‘Were, by order or on general principles, the U.S. submarines prohibited from carrying out 

rescue measures toward passengers and crews of ships sunk without warning in those cases where by doing so the 

safety of their own boat was endangered?’ ‘A: ‘On general principles, the U.S. submarines did not rescue enemy 

survivors if undue additional hazard to the submarine resulted or the submarine would thereby be prevented from 

accomplishing its further mission. U.S. submarines were limited in rescue measures by small passenger-carrying 

facilities combined with the known desperate and suicidal character of the enemy. Therefore, it was unsafe to pick 

up many survivors. Frequently survivors were given rubber boats and/or provisions. Almost invariably survivors 

did not come aboard the submarine voluntarily, and it was necessary to take them prisoner by force.’”).

120 2007 NWP 1-14M ¶7.8 (“Within the immediate area or vicinity of naval operations, to ensure proper battle space 

management and self-defense objectives, a belligerent may establish special restrictions upon the activities of neutral 

vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area.”); 1955 NWIP 

¶430b (“Within the immediate area or vicinity of naval operations, a belligerent may establish special restrictions 

(see, for example, paragraph 520a) upon the activities of neutral vessels and aircraft and may prohibit altogether 

such vessels and aircraft from entering the area.”); 2006 AUSTRALIAN MANUAL ¶6.16 (“Within the immediate area 

or vicinity of naval operations, a belligerent may establish special restrictions upon the activities of neutral vessels 

and aircraft and may prohibit altogether such vessels and aircraft from entering the area.”); 2004 UK MANUAL

¶13.80 ( “Nothing in paragraphs 13.65 to 13.79 [on blockades and security zones] should be deemed to derogate 

from the customary belligerent right to control neutral vessels and aircraft in the immediate vicinity of naval 

operations.”).

121 2007 NWP 1-14M ¶7.8 (“The immediate area or vicinity of naval operations is that area within which hostilities 

are taking place or belligerent forces are actually operating.”); 1997 NWP 9 ¶7.8 (same); 1989 NWP 9 ¶7.8 

(substantially similar); TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 300 (“It should be emphasized, though, 
898

Belligerent State control over neutral vessels and aircraft within the immediate area of 

naval operations is based upon a belligerent State’s right to ensure the security of its forces and 

its right to conduct hostilities without interference from neutrals.

122 

A belligerent State may not purport to deny access to neutral States, or to close an 

international strait to neutral shipping, pursuant to this authority unless another route of similar 

convenience remains open to neutral traffic.123

13.8.2 Belligerent Right to Control Communication of Neutral Merchant Vessels or 

Aircraft at Sea. A belligerent warship may exercise control over the communications of any 

neutral merchant vessel or civil aircraft whose presence in the immediate vicinity of naval 

operations might otherwise endanger or jeopardize those operations.124

A neutral merchant ship or civil aircraft within that area that fails to conform to a 

belligerent warship’s directions concerning communications may thereby assume enemy 

character and risk being fired upon or captured.125 Any transmission to an opposing belligerent 

State of information concerning military operations or military forces is inconsistent with the 

neutral State’s duties of abstention and impartiality, and renders the neutral State’s vessel or 

aircraft making such a communication liable to capture or destruction.126

 that the immediate area of naval operations refers to an area within which naval hostilities are taking place or within 

which belligerent forces are actually operating.”).

122 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 301 (“The claim to control neutral vessels and aircraft 

within the immediate vicinity of operating forces is essentially a limited and transient one and is based not only upon 

the right of a belligerent to insure the security of his forces but upon the right to attack and to defend himself without 

interference from neutrals.”).

123 2007 NWP 1-14M ¶7.8 (“A belligerent may not, however, purport to deny access to neutral nations, or to close 

an international strait to neutral shipping, pursuant to this authority unless another route of similar convenience 

remains open to neutral traffic.”); 1997 NWP 9 ¶7.8 (same); 1989 NWP 9 ¶7.8 (same). Compare § 13.10.2.5

(Limitations on the Scope of the Blockade).

124 2007 NWP 1-14M ¶7.8 (“The commanding officer of a belligerent warship may exercise control over the 

communication of any neutral merchant vessel or civil aircraft whose presence in the immediate area of naval 

operations might otherwise endanger or jeopardize those operations.”); 1955 NWIP 10-2 ¶520a (“Within the 

immediate vicinity of his forces, a belligerent commanding officer may exercise control over the communications of 

any neutral merchant vessel or aircraft whose presence might otherwise endanger the success of the operations.”); 

2006 AUSTRALIAN MANUAL ¶6.17 (“Within the immediate area or vicinity of naval operations, a commanding 

officer of a belligerent warship may exercise control over the communications of any neutral merchant vessel or 

aircraft whose presence might otherwise endanger the success of the belligerent operation.”).

125 2007 NWP 1-14M ¶7.8 (“A neutral merchant ship or civil aircraft within that area that fails to conform to a 

belligerent’s directions concerning communications may thereby assume enemy character and risk being fired upon 

or captured.”); 1955 NWIP 10-2 ¶430b (“Neutral vessels and aircraft which fail to comply with a belligerent’s 

orders expose themselves to the risk of being fired upon. Such vessels and aircraft are also liable to capture (see 

subparagraph 503d7).”).

126 2007 NWP 1-14M ¶7.8 (“Any transmission to an opposing belligerent of information concerning military 

operations or military forces is inconsistent with the neutral duties of abstention and impartiality and renders the 

neutral vessel or aircraft liable to capture or destruction.”). Consider Commission of Jurists to Consider and Report 

Upon the Revision of the Rules of Warfare, General Report, Part I: Rules for the Control of Radio in Time of War, 

art. 6, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (“1. The transmission 

by radio by a vessel or an aircraft, whether enemy or neutral, when on or over the high seas of military intelligence 
899

Legitimate distress communications should be permitted to the extent that the success of 

the operation is not prejudiced thereby.127 

13.9 MARITIME AND AIRSPACE ZONES: EXCLUSION, WAR, OPERATIONAL, WARNING, AND 

SAFETY

Belligerent States may establish various maritime and airspace zones during armed 

conflict. The legal rules that apply to the establishment and enforcement of a zone may depend 

on the function of the zone and, in particular, whether additional belligerent rights are asserted as 

a consequence of vessels entering the zone.

Neutral or non-belligerent States have established such zones.128

13.9.1 Authority to Establish Zones. The authority necessary to establish a zone may 

depend on the location of the zone and the belligerent rights that are asserted as a consequence of 

vessels entering the zone.

The establishment of a zone in a State’s waters may rely on its sovereignty over those 

waters.129 Similarly, the establishment of a zone in a State’s airspace may rely on its sovereignty 

over that airspace.130 The right of a belligerent State to establish a zone outside its territory may 

rely on the belligerent State’s: (1) right to interdict contraband; (2) right to control the 

immediate area of operations; or (3) right of blockade.

131

Exclusion zones may also be established in accordance with an appropriate resolution 

adopted by the U.N. Security Council. 

13.9.2 Use of Zones to Warn Vessels or Aircraft – War, Operational, Warning, and 

 for the immediate use of a belligerent is to be deemed a hostile act and will render the vessel or aircraft liable to be 

fired upon. 2. A neutral vessel or neutral aircraft which transmits when on or over the high seas information 

destined for a belligerent concerning military operations or military forces shall be liable to capture. The prize court 

may condemn the vessel or aircraft if it considers that the circumstances justify condemnation.”).

127 2007 NWP 1-14M ¶7.8 (“Legitimate distress communications should be permitted to the extent that the success 

of the operation is not prejudiced thereby.”); 1955 NWIP 10-2 ¶520a (“Legitimate distress communications by 

neutral vessels and aircraft should be permitted if they do not prejudice the success of such operations.”).

128 For example, The Nyon Arrangement Between the United Kingdom of Great Britain and Northern Ireland, 

Bulgaria, Egypt, France, Greece, Roumania, Turkey, the Union of Soviet Socialist Republics and Yugoslavia, 

Sept.14, 1937, 181 LNTS 135.

129 Refer to § 13.2.2 (National Waters). For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64

U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 156, 189-90 (1991) (“At this point it may be noted in 

passing that ‘Operation Market Time,’ which was enforced by the United States Navy during the Vietnamese War 

was legally valid since it was a law-enforcement operation limited to a distance of twelve miles from the low water 

mark of South Vietnam (it did not extend north beyond the DMZ) and so within the domestic competence of South 

Vietnam, which legislated to empower the activity. Since that operation was conducted entirely within the territorial 

sea and contiguous zone of South Vietnam, it does not come within the perspective of the present paper.”).

130 Refer to § 14.2.1.1 (National Airspace).

131 Refer to 15.12 (Neutral Commerce and Carriage of Contraband); § 13.8 (Belligerent Control of the Immediate 

Area of Naval Operations); § 13.10 (Blockade).
900

Safety Zones. A zone may be issued to advise vessels or aircraft to remain clear of an area of 

naval operations. Such a zone may also provide procedures to reduce the risk of neutral vessels 

being mistakenly attacked.132

Such zones have been used: (1) to identify a particularly dangerous operational area;

133

(2) to assist in the defense of a particular area;134 or (3) to assist in the defense of particular naval 

forces (i.e., a defensive bubble).

135

The establishment of such a zone does not relieve the proclaiming belligerent State of its 

obligation under the law of war to refrain from attacking vessels and aircraft that do not 

constitute military objectives. Thus, a vessel or aircraft that is otherwise protected does not 

forfeit its protection from being made the object of attack simply by entering a zone of the ocean 

 132 For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003), 

reprinted in 2007 NWP 1-14M, Appendix A (“2. ALL VESSELS SHOULD MAINTAIN A SAFE DISTANCE 

FROM U.S. FORCES SO THAT INTENTIONS ARE CLEAR AND UNDERSTOOD BY U.S. FORCES. 

VESSELS THAT ENTER THE MARITIME SAFETY ZONE WHICH ARE APPROACHING U.S. FORCES, OR 

VESSELS WHOSE INTENTIONS ARE UNCLEAR ARE SUBJECT TO BOARDING AND VISIT BY U.S. 

FORCES. ALL VESSELS APPROACHING U.S. FORCES ARE REQUESTED TO MAINTAIN RADIO 

CONTACT WITH U.S. FORCES ON BRIDGE-TO-BRIDGE CHANNEL 16. 3. U.S. FORCES WILL EXERCISE 

APPROPRIATE MEASURES IN SELF-DEFENSE IF WARRANTED BY THE CIRCUMSTANCES. VESSELS 

APPROACHING U.S. FORCES WILL HELP MAKE THEIR INTENTIONS CLEAR AND AVOID 

UNNECESSARY INITIATION OF SUCH DEFENSIVE MEASURES BY MAKING PRIOR CONTACT AS 

DESCRIBED ABOVE.”).

133 For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003), 

reprinted in 2007 NWP 1-14M, Appendix A (“U.S. FORCES IN THE EASTERN MEDITERRANEAN HAVE 

ESTABLISHED A MARITIME SAFETY ZONE AND ARE CONDUCTING COMBAT OPERATIONS IN 

INTERNATIONAL WATERS THAT POSE A HAZARD TO NAVIGATION. ALL VESSELS ARE ADVISED 

TO EXERCISE EXTREME CAUTION AND TO REMAIN CLEAR OF THE FOLLOWING DESIGNATED 

OPERATION AREA BOUND BY 32-28.0N 033-22.0E, 31-40.0N 033-22.0E, 31-55.0N 032-20.0E, 32-46.8N 032-

20.0E.”).

134 For example, Woodrow Wilson, Executive Order Establishing Defensive Sea Areas, No. 2584, Apr. 5, 1917, 

reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 13, 16 (1918) (“I, WOODROW WILSON, President of the 

United States of America, do order that defensive sea areas are hereby established, to be maintained until further 

notification, at the places and within the limits prescribed as follows, ... The responsibility of the United States of 

America for any damage inflicted by force of arms with the object of detaining any person or vessel proceeding in 

contravention to Regulations duly promulgated in accordance with this Executive order shall cease from this date.”).

135 For example, A.D. Parsons, Letter Dated 24 April 1982 from the Permanent Representative of the United 

Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security 

Council, U.N. Doc. S/14997 (“Further to Mr. Whyte’s letter dated 9 April 1982 (S/14963), I have the honour, on 

instructions from my Government, to inform you that the following communication was conveyed to the 

Government of Argentina on 23 April 1982: In announcing the establishment of a maritime exclusion zone around 

the Falkland Islands, Her Majesty’s Government made it clear that this measure was without prejudice to the right of 

the United Kingdom to take whatever additional measures may be needed in the exercise of its right of self-defence 

under Article 51 of the United Nations Charter. In this connection, Her Majesty’s Government now wishes to make 

clear that any approach on the part of Argentine warships, including submarines, naval auxiliaries, or military 

aircraft which could amount to a threat to interfere with the mission of the British forces in the South Atlantic, will 

encounter the appropriate response. All Argentine aircraft including civil aircraft engaging in surveillance of these 

British forces will be regarded as hostile and are liable to be dealt with accordingly.”).
901

on the high seas established by a belligerent State.

136

In some cases, however, the fact that a vessel or aircraft enters a zone without 

authorization may be probative in assessing whether it is entitled to protection (e.g., whether it is 

an enemy military vessel or aircraft, or whether it has acquired the character of enemy military 

vessels or aircraft).

137 For example, the notification of the zone in advance may mean that most 

neutral or protected vessels and aircraft have departed the area. Similarly, the entry into the zone 

of an unidentified vessel without authorization may be probative of whether the vessel 

constitutes a military objective. 

13.9.3 Use of Zones to Counter Enemy Logistics. Zones may be used to assist in the 

implementation of the belligerent’s strategy to counter the adversary’s logistics.138 For example, 

zones may be established to facilitate the interdiction of contraband.139 As a case in point, a 

zone may be established to warn neutral vessels and aircraft that they will be subject to visit and 

search if they attempt to enter the zone without authorization.

Zones may not be employed for the purpose of starving the civilian population.140 Such 

zones must not impose an unreasonable burden on neutral commerce in free goods.141

 136 John H. McNeil, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31 VIRGINIA JOURNAL 

OF INTERNATIONAL LAW 631, 635-36 (1991) (“Iraq replied to these Iranian declarations by proclaiming a series of 

escalating exclusion zones, beginning with a ‘prohibited war zone;’ Iraq declared that it would ‘attack all vessels’ 

appearing within these zones, and stated that ‘all tankers, regardless of nationality, docking at Kharg Island are 

targets for the Iraqi Air Force.” As noted earlier, Iraq launched the Tanker War in 1984 in an apparent bid to 

internationalize the war. During the first months of this new offensive, some seventy ships were hit, many of which 

were neutral-flag tankers bound to or from the massive Iranian oil terminal at Kharg Island. But international law 

has never legitimized attacks upon neutral merchant vessels simply because they ventured into a specified area of 

the high seas.”).

137 Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

138 For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64 U.S. NAVAL WAR COLLEGE 

INTERNATIONAL LAW STUDIES 156, 185-86 (1991) (“(a) The Exclusion Zone of the Skaggerak The Skaggerak is an 

arm of the North Sea on its eastern side and lies between Denmark and Norway. It is some 150 nautical miles in 

length and 85 miles in width. ... The argument vindicating the British proclamation of the Skaggerak as a maritime 

exclusion zone under emerging customary international law may be accepted, since the strategy for enforcing the 

exclusion of the adversary from the zone was an apparently successful one. It was a persisting logistical strategy 

enforced by both aircraft and submarines providing an adequate ratio of force to space. This proposition can be 

analyzed out into the following elements. (i) The zone was reasonable in area, and despite German surface naval 

power, the logistical strategy was persistently maintained and was made effective through submarine and aerial 

warfare; (ii) The object, while not primarily one of self-defense, was for the related purposes of: ... (b) encumbering 

Germany’s reinforcements and supplies destined for its oppressive occupation of Norway—a victim of Nazi 

aggression; (c) the target shipping had military objectives and purposes and could not be viewed as carrying supplies 

which had the object of benefitting the civilian population of Norway;”).

139 Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

140 Refer to § 5.20 (Starvation).

141 See 2007 NWP 1-14M ¶7.9 (“To the extent that such zones serve to warn neutral vessels and aircraft away from 

belligerent activities and thereby reduce their exposure to collateral damage and incidental injury (see paragraph 

8.3.1), and to the extent that they do not unreasonably interfere with legitimate neutral commerce, they are 

undoubtedly lawful.”).
902

13.9.4 Use of Zones to Prevent Movement – Exclusion Zones. Belligerents may 

establish exclusion zones that prohibit the entry of vessels or aircraft without authorization from 

that belligerent.

142 Such zones may suspend the right of innocent passage through non-neutral 

waters.143

The extent, location, and duration of the exclusion zone and the measures imposed should 

not exceed what is required by military necessity.144 

Belligerents establishing such zones must provide safe passage through the zone for 

neutral vessels and aircraft where the geographical extent of the zone significantly impedes free 

and safe access to the ports and coasts of a neutral State and, unless military requirements do not

permit, in other cases where normal navigation routes are affected.145

13.9.5 Procedures for Declaring a Zone. As a matter of practice, maritime and/or aerial 

warnings (e.g., HYDROLANT, HYDROPAC, Notice to Airmen (NOTAM)) would ordinarily be 

promulgated as part of the establishment of a maritime or airspace zone.

 142 For example, 2004 UK MANUAL ¶12.58 footnote 76 (“During the Falklands conflict 1982, a total exclusion zone 

of 200 nautical miles was established around the Islands. It applied, inter alia, to any aircraft, military or civil, 

operating in support of the illegal occupation by the Argentine forces, and any aircraft (military or civil) found 

within the zone without authority from the Ministry of Defence would be regarded as operating in support of the 

illegal occupation and thus hostile and liable to be attacked by the British forces.”).

143 For example, HYDROPAC 795/2004 (62) PERSIAN GULF (030850Z MAY 2004), reprinted in 2007 NWP 1-

14M, Appendix C (“8. ADDITIONALLY, EFFECTIVE IMMEDIATELY, EXCLUSION ZONES ARE 

ESTABLISHED AND THE RIGHT OF INNOCENT PASSAGE IS TEMPORARILY SUSPENDED IN 

ACCORDANCE WITH INTERNATIONAL LAW AROUND THE KAAOT AND ABOT OIL TERMINALS 

WITHIN IRAQI TERRITORIAL WATERS. THE EXCLUSION ZONES EXTEND 2000 METERS FROM THE 

OUTER EDGES OF THE TERMINAL STRUCTURES IN ALL DIRECTIONS. 9. ONLY TANKERS AND 

SUPPORT VESSELS AUTHORIZED BY TERMINAL OPERATORS OR COALITION MARITIME SECURITY 

FORCES ARE ALLOWED TO ENTER THE EXCLUSION ZONES. VESSELS ATTEMPTING TO ENTER THE 

ZONES WITHOUT AUTHORIZATION MAY BE SUBJECT TO DEFENSIVE MEASURES, INCLUDING 

WHEN NECESSARY, THE USE OF DEADLY FORCE. ALL REASONABLE EFFORTS WILL BE TAKEN TO 

WARN VESSELS AWAY BEFORE EMPLOYING DEADLY FORCE. HOWEVER, DEADLY FORCE WILL 

BE EMPLOYED WHEN NECESSARY TO PROTECT COALITION MARITIME SECURITY FORCES, 

LEGITIMATE SHIPPING PRESENT IN THE EXCLUSION ZONES AND THE OIL TERMINALS.”).

144 For example, Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE 

HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 467 (¶1049) (“On 28 April 1982 Great Britain 

proclaimed a ‘Total Exclusion Zone’ (TEZ) in the South Atlantic. Beside deterring the Argentine naval forces from 

leaving their ports, its main purpose was to facilitate the early identification of military objectives and to prevent 

vessels flying neutral flags from conveying information to Argentina. ... On one hand, the British TEZ covered an 

area of 200 nautical miles measured from the centre of the main island. On the other hand, the TEZ was situated far 

from any main shipping lanes. Moreover, its duration was comparatively short. It did not serve economic warfare 

purposes but was aimed at facilitating military operations, including identification. Vessels and aircraft flying flags 

of states not parties to the conflict suffered no damage whatsoever. For these reasons, only the former USSR 

officially protested against the British TEZ.”).

145 2007 NWP 1-14M ¶7.9 (“Belligerents creating such zones must provide safe passage through the zone for neutral 

vessels and aircraft where the geographical extent of the zone significantly impedes free and safe access to the ports 

and coasts of a neutral state and, unless military requirements do not permit, in other cases where normal navigation 

routes are affected.”).
903

13.10 BLOCKADE

A blockade is an operation by a belligerent State to prevent vessels and/or aircraft of all 

States, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal 

areas belonging to, occupied by, or under the control of an enemy belligerent State.146 

13.10.1 Purpose of Blockade and Belligerent Rights Associated With Blockade. The 

purpose of a blockade is to deprive the adversary of supplies needed to conduct hostilities.147

A blockade enables the blockading State to control traffic in the blockaded area. A

blockade also enables the blockading State to take measures on the high seas to deny supplies to 

a blockaded area.148 For example, a blockading State has the right to visit and search vessels on 

the high seas to enforce its blockade.

149

13.10.2 Criteria for Blockades. In order to be binding, a blockade must meet certain 

criteria.

13.10.2.1 Authority for the Establishment of a Blockade. A blockade must be 

established by proper legal authority. The establishment of a blockade has been accomplished 

by a declaration of the belligerent State, or by the commander of the blockading force acting on 

behalf of the belligerent State.

150

The U.N. Security Council is also expressly given the authority by the Charter of the 

United Nations to authorize blockades.151 A blockade of the ports or coasts of a State is 

generally regarded as a measure involving force against that State for the purposes of the Charter 

 146 2007 NWP 1-14M ¶7.7.1 (“Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, 

enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied 

by, or under the control of an enemy nation.”); 1997 NWP 9 ¶7.7.1 (same); 1989 NWP 9 ¶7.7.1 (same); 1955 NWIP 

10-2 ¶632a (“A blockade is a belligerent operation intended to prevent vessels of all States from entering or leaving 

specified coastal areas which are under the sovereignty, under the occupation, or under the control of an enemy.”).

147 ICRC AP COMMENTARY 654 (¶2095) (“It should be emphasized that the object of a blockade is to deprive the 

adversary of supplies needed to conduct hostilities, and not to starve civilians.”).

148 John Reese Stevenson, Legal Adviser, Department of State, Letter dated June 6, 1972, reprinted in Steven C. 

Nelson, Contemporary Practice of the United States Relating to International Law, 66 AJIL 836, 837 (1972) (“To 

have declared a blockade could have implied, under traditional international law, a whole range of actions which 

would have extended the area of hostilities and risked grave dangers of widening the conflict. The traditional law of 

blockade requires a formal declaration of the establishment of the blockade and notification of it to all states. A 

blockade must be ‘effective’ in preventing all ingress or egress—including commercial trade and activities—from or 

to the enemy's coast. The blockading state would have the right to stop vessels of any nation anywhere on the high 

seas, to inspect and search such vessels, to seize them if they are bound to or from the blockaded ports, and 

eventually to condemn them and their cargos in a prize court. Ships attempting to violate the blockade could be 

taken under fire should they fail to stop on order.”).

149 Refer to § 15.13.1 (Purposes of Visit and Search).

150 Consider DECLARATION OF LONDON art. 9 (1909) (“A declaration of a blockade is made either by the blockading 

Power or by the naval authorities acting in its name.”).

151 Refer to § 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the 

Charter of the United Nations).
904

of the United Nations.152

13.10.2.2 Notification of the Blockade. It is customary for the belligerent State 

establishing the blockade to notify all affected States of its imposition.153 The commander of the 

blockading forces will usually also notify local authorities in the blockaded area.154

Notification should include, as a minimum, the date the blockade is to begin, its 

geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be 

blockaded.155

The form of the notification is not material so long as it is effective, and a variety of 

methods may be used.

156

 152 See, e.g., Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONS 

OF THE OFFICE OF LEGAL COUNSEL 486, 490 (2013) (“The legality today of a blockade unilaterally imposed by one 

state upon another depends upon its compatibility with the language and principles of the Charter. Ordinarily it, like 

other measures involving force, is reserved to the United Nations or to regional organizations such as the OAS. If 

imposed unilaterally without prior approval it must be considered a reasonable measure under the circumstances, 

proportional to the threat posed, and limited to a legitimate purpose. It does not become more or less lawful on the 

basis of declaration of war or a failure to declare war.”); Definition of Aggression, arts. 1, 3, Annex to U.N.

GENERAL ASSEMBLY RESOLUTION 3314 (XXIX), Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 

14, 1974) (“Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political 

independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out 

in this Definition. ... Any of the following acts, regardless of a declaration of war, shall, subject to and in 

accordance with the provisions of article 2, qualify as an act of aggression: ... (c) The blockade of the ports or coasts 

of a State by the armed forces of another State.”).

153 2007 NWP 1-14M ¶7.7.2.2 (“It is customary for the belligerent nation establishing the blockade to notify all 

affected nations of its imposition.”); 1955 NWIP 10-2 ¶632b (“It is customary for the blockade to be notified in a 

suitable manner to the governments of all States.”). Consider 1909 DECLARATION OF LONDON art. 11 (“A 

declaration of blockade is notified– (1) to neutral Powers, by the blockading Power, by means of a communication 

addressed to the Governments direct, or to their representatives accredited to it.”).

154 2007 NWP 1-14M ¶7.7.2.2 (“The commander of the blockading forces will usually also notify local authorities in 

the blockaded area.”); 1955 NWIP 10-2 ¶632b (“The commander of the blockading force usually makes notification 

to local authorities in the blockaded area.”). Consider 1909 DECLARATION OF LONDON art. 11 (“A declaration of 

blockade is notified– ... (2) to the local authorities, by the officer commanding the blockading force. The local 

authorities will, in turn, inform the foreign consular officers at the port or on the coastline under blockade as soon as 

possible.”).

155 2007 NWP 1-14M ¶7.7.2.1 (“The declaration should include, as a minimum, the date the blockade is to begin, its 

geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be blockaded.”); 1955 

NWIP 10-2 ¶632b (“The declaration should include the date the blockade begins, the geographical limits of the 

blockade, and the period granted neutral vessels and aircraft to leave the blockaded area.”). Consider 1909 

DECLARATION OF LONDON art. 9 (“A declaration of blockade is made either by the blockading Power or by the naval 

authorities acting in its name. It specifies– (1) The date when the blockade begins; (2) The geographical limits of 

the coastline under blockade; (3) The period within which neutral vessels may come out.”).

156 For example, The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel 

Commission), Report: Part one, 162-63 (¶58) (Jan. 2010) (“In the case at hand, the State of Israel took the following

steps in order to give notice of the naval blockade: from the testimony of the Military Advocate-General, MajorGeneral Avichai Mendelblit, it can be seen that the Military Advocate-General’s Office asked the Ministry of 

Transport to transmit information regarding the imposition of the naval blockade by all methods at its disposal, in 

order to ensure that the notice would reach all vessels in the Mediterranean Sea. This was also done. The notice 

was also published on the Internet sites of the IDF, the Shipping Authority, the Military Advocate-General, and the 
905

The notification of the blockade may establish a presumption of knowledge of the 

blockade that is required in the offense of breach or attempted breach of a blockade.157

13.10.2.3 Effectiveness of the Blockade. In order to be binding, a blockade must 

be effective.

158 This requirement of effectiveness is intended to prevent “paper” blockades.159

The requirement of effectiveness means that the blockade must be maintained by forces 

that are sufficient to render ingress or egress of the blockaded area dangerous.160 The 

requirement of effectiveness does not preclude temporary absence of the blockading force, if 

such absence is due to stress of weather or to some other reason connected with the blockade 

(e.g., pursuit of a blockade runner).161 

The forces that are necessary to make a blockade effective depend on the specific military 

 Ministry of Transport, and, as noted above, via several international channels. The announcement was also 

transmitted twice a day via the emergency channel for maritime communication to all ships within a distance of up 

to 300 kilometers from the Israeli coast. In addition, notices were also sent to the flag States and the States that 

Israel knew intended to send ships to the area. These steps clearly satisfy the requirement of ‘notice.’”).

157 Refer to § 13.10.4.2 (Knowledge of the Existence of Blockade).

158 Consider 1909 DECLARATION OF LONDON art. 2 (“In accordance with the Declaration of Paris of 1856, a 

blockade, in order to be binding must be effective – that is to say, it must be maintained by a force sufficient really 

to prevent access to the enemy coastline.”); Declaration respecting maritime law signed by the Plenipotentiaries of 

Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, 

reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89 (1907) (“4. Blockades, in order to be binding, must be 

effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”).

159 The Peterhoff, 72 U.S. 28, 50 (1867) (“It must be premised that no paper or constructive blockade is allowed by 

international law. When such blockades have been attempted by other nations, the United States have ever protested 

against them and denied their validity. Their illegality is now confessed on all hands. It was solemnly proclaimed 

in the Declaration of Paris of 1856, to which most of the civilized nations of the world have since adhered; and this 

principle is nowhere more fully recognized than in our own country, though not a party to that declaration.”); The 

Olinde Rodrigues, 174 U.S. 510, 513-14 (1899) (“The fourth maxim of the Declaration of Paris (April 16, 1856) 

was: ‘Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to 

prevent access to the coast of the enemy.’ Manifestly this broad definition was not intended to be literally applied. 

The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were 

put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of 

what might be sufficient force was necessarily left to be determined according to the particular circumstances.”).

160 See 2007 NWP 1-14M ¶7.7.2.3 (“To be valid, a blockade must be effective—that is, it must be maintained by a 

surface, air, or subsurface force or other legitimate methods and means of warfare that is sufficient to render ingress 

or egress of the blockaded area dangerous.”); 1955 NWIP 10-2 ¶632d (“A blockade, in order to be binding, must be 

effective. This means that a blockade must be maintained by a force sufficient to render ingress and egress to or 

from the blockaded area dangerous.”); The Olinde Rodrigues, 174 U.S. 510, 515 (1899) (“Such is the settled 

doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions 

issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: ‘A blockade to be effective and binding 

must be maintained by a force sufficient to render ingress to or egress from the port dangerous.’”).

161 2007 NWP 1-14M ¶7.7.2.3 (“The requirement of effectiveness does not preclude temporary absence of the 

blockading force, if such absence is due to stress of weather or to some other reason connected with the blockade 

(e.g., pursuit of a blockade runner).”). Consider 1909 DECLARATION OF LONDON art. 4 (“A blockade is not regarded 

as raised if the blockading force is temporarily withdrawn on account of stress of weather.”).
906

circumstances.162 The blockade may be maintained by forces that are some distance from the 

shore.163

13.10.2.4 Impartial Application of the Blockade. A blockade must be applied 

impartially to the vessels and aircraft of all States.164 The requirement that a belligerent must 

apply a blockade impartially to the vessels and aircraft of all States is intended to prevent 

measures of discrimination by the blockading belligerent in favor of or against the vessels and 

aircraft of particular States, including its own or allied vessels and aircraft.165

13.10.2.5 Limitations on the Scope of the Blockade. A blockade must not bar 

access to, or departure from, neutral ports and coasts.166 

A blockade may not be used for the purpose of starving the civilian population, and the 

expected incidental harm to the civilian population may not be excessive in relation to the 

expected military advantage to be gained from employing the blockade.167

13.10.3 Special Entry and Exit Authorization. In certain cases, vessels or aircraft may 

enter or exit a blockaded area.

13.10.3.1 Neutral Warships and Military Aircraft. Although neutral warships and 

military aircraft enjoy no positive right of access to blockaded areas, the belligerent State 

imposing the blockade may authorize their entry and exit. Such special authorization may be 

made subject to such conditions as the blockading force considers necessary and expedient.168

 162 See The Olinde Rodrigues, 174 U.S. 510, 516-18 (1899) (“As we hold that an effective blockade is a blockade so 

effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the 

question of effectiveness is not controlled by the number of the blockading force. In other words, the position 

cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law. ... The 

question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is 

not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground. We 

are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the 

port, that is sufficient, since thereby the blockade is made practically effective.”).

163 2013 GERMAN MANUAL ¶1062 (“A blockade, in order to be binding, must be effective (25 Principle 4). It must 

be maintained by armed forces sufficient to prevent access to the blockaded coast. Long distance blockades are 

also permissible, i.e. the blockade and control of an enemy coast by armed forces at a greater distance from the 

blockaded coast as a result of military requirements.”); 2004 UK MANUAL ¶13.68 (“The force maintaining the 

blockade may be stationed at a distance determined by military requirements.”).

164 1955 NWIP 10-2 ¶632f (“A blockade must be applied equally (impartially) to the vessels and aircraft of all 

states.”). Consider 1909 DECLARATION OF LONDON art. 5 (“A blockade must be applied impartially to the ships of 

all nations.”).

165 1955 NWIP 10-2 ¶632f note 35 (“The requirement that a belligerent must apply a blockade impartially to the 

vessels and aircraft of all states is intended to prevent measures of discrimination by the blockading belligerent in 

favor of or against the vessels and aircraft of particular states, including its own or allied vessels and aircraft.”).

166 1955 NWIP 10-2 ¶632e (“A blockade must not bar access or departure from neutral ports or coasts.”). Consider

1909 DECLARATION OF LONDON art. 18 (“The blockading forces must not bar access to neutral ports or coasts.”).

167 Refer to § 5.20 (Starvation).

168 See 2007 NWP 1-14M ¶7.7.3 (“Although neutral warships and military aircraft enjoy no positive right of access 

to blockaded areas, the belligerent imposing the blockade may authorize their entry and exit. Such special 
907

13.10.3.2 Neutral Vessels and Aircraft in Evident Distress. Neutral vessels and 

aircraft in evident distress should be authorized entry into a blockaded area, and subsequently 

authorized to depart, under conditions prescribed by the officer in command of the blockading 

force or responsible for maintenance of the blockading instrumentality (e.g., mines).169 

13.10.3.3 Passage of Relief Consignments Under the GC. Similarly, neutral 

vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian 

population and the sick and wounded should be authorized to pass through the blockade cordon, 

subject to the right of the blockading force to prescribe the technical arrangements, including 

search, under which passage is permitted.

170

13.10.4 Breach and Attempted Breach of Blockade. Breach or attempted breach of a 

blockade subjects a neutral vessel or aircraft to capture.171

13.10.4.1 Acts of Breach or Attempted Breach of Blockade. Breach of blockade is 

the passage of a vessel or aircraft through a blockade without special entry or exit authorization 

from the blockading belligerent.172 

Attempted breach of a blockade occurs from the time a vessel or aircraft leaves a port or 

airfield with the intention of evading the blockade and, for vessels exiting the blockaded area, 

continues until the voyage is completed.173 A temporary anchorage in waters occupied by the 

 

authorization may be made subject to such conditions as the blockading force considers to be necessary and 

expedient.”); 1955 NWIP 10-2 ¶632h(1) (“Neutral warships and neutral military aircraft have no positive right of 

entry to a blockaded area. However, they may be allowed to enter or leave a blockaded area as a matter of courtesy. 

Permission to visit a blockaded area is subject to any conditions, such as the length of stay, that the senior officer of 

the blockading force may deem necessary and expedient.”). Consider 1909 DECLARATION OF LONDON art. 6 (“The 

commander of a blockading force may give permission to a warship to enter, and subsequently leave, a blockaded 

port.”).

169 See 2007 NWP 1-14M ¶7.7.3 (“Neutral vessels and aircraft in evident distress should be authorized entry into a 

blockaded area, and subsequently authorized to depart, under conditions prescribed by the officer in command of the 

blockading force or responsible for maintenance of the blockading instrumentality (e.g., mines).”); 1955 NWIP 10-2 

¶632h(2) (“Neutral vessels and aircraft in urgent distress may be permitted to enter a blockaded area, and 

subsequently to leave it, under conditions prescribed by the commander of the blockading force.”). Consider 1909 

DECLARATION OF LONDON art. 7 (“In circumstances of distress, acknowledged by an officer of the blockading force, 

a neutral vessel may enter a place under blockade and subsequently leave it, provided that she has neither discharged 

nor shipped any cargo there.”).

170 2007 NWP 1-14M ¶7.7.3 (“Similarly, neutral vessels and aircraft engaged in the carriage of qualifying relief 

supplies for the civilian population and the sick and wounded should be authorized to pass through the blockade 

cordon, subject to the right of the blockading force to prescribe the technical arrangements, including search, under 

which passage is permitted.”). Refer to § 5.19.3 (Passage of Relief Consignments).

171 Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

172 2007 NWP 1-14M ¶7.7.4 (“Breach of blockade is the passage of a vessel or aircraft through a blockade without 

special entry or exit authorization from the blockading belligerent.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 

¶7.7.4 (same); 1955 NWIP 10-2 ¶632g (“Breach of blockade is the passage of a vessel or aircraft through the 

blockade.”).

173 2007 NWP 1-14M ¶7.7.4 (“Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port 

or airfield with the intention of evading the blockade, and for vessels exiting the blockaded area, continues until the 

voyage is completed.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (substantially similar); 1955 NWIP 10-2 
908

blockading vessels does not justify capture, in the absence of other grounds.174 

A presumption arises that certain merchant vessels or aircraft are attempting to breach a

blockade where those vessels or aircraft are bound for a neutral port or airfield serving as a point 

of transit to the blockaded area.175

13.10.4.2 Knowledge of the Existence of Blockade. Knowledge of the existence 

of the blockade is essential to the offenses of breach of blockade and attempted breach of 

blockade; presumed knowledge is sufficient.

176

Knowledge may be presumed once a blockade has been declared and appropriate 

notification provided to affected governments.177 For example, a vessel in a blockaded port is 

presumed to have notice of the blockade as soon as it commences.178

A vessel sailing ignorantly (i.e., with neither presumptive nor actual knowledge) to a 

blockaded port is not liable to capture, although it may be turned away from the blockaded 

area.179

 ¶632g(2) (“Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or air take-off point 

with the intent of evading the blockade.”).

174 The Teresita, 72 U.S. 180, 182 (1867) (“We are of opinion that, under such circumstances, temporary anchorage 

in waters occupied by the blockading vessels, does not justify capture, in the absence of other grounds.”).

175 2007 NWP 1-14M ¶7.7.4 (“There is a presumption of attempted breach of blockade where vessels or aircraft are 

bound for a neutral port or airfield serving as a point of transit to the blockaded area.”); 1955 NWIP 10-2 ¶632g(1) 

(“There is a presumption of attempted breach of blockade where vessels and aircraft are bound to a neutral port or 

airfield serving as a point of transit to the blockaded area.”); The Peterhoff, 72 U.S. 28, 55 (1867) (“It is an 

undoubted general principle, recognized by this court in the case of The Bermuda, and in several other cases, that an 

ulterior destination to a blockaded port will infect the primary voyage to a neutral port with liability for intended 

violation of blockade.”). Compare § 15.12.2 (Requirement of Enemy Destination).

176 2007 NWP 1-14M ¶7.7.4 (“Knowledge of the existence of the blockade is essential to the offenses of breach of 

blockade and attempted breach of blockade.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (same); 1955 NWIP 

10-2 ¶632g (“Knowledge of the existence of a blockade is essential to the offenses of breach of blockade and 

attempted breach of blockade; presumed knowledge is sufficient.”). Consider 1909 DECLARATION OF LONDON art. 

14 (“The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or 

presumptive, of the blockade.”).

177 2007 NWP 1-14M ¶7.7.4 (“Knowledge may be presumed once a blockade has been declared and appropriate 

notification provided to affected governments.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (same). Consider

1909 DECLARATION OF LONDON art. 15 (“Failing proof to the contrary, knowledge of the blockade is presumed if 

the vessel left a neutral port subsequently to the notification of the blockade to the Power to which such port 

belongs, provided that such notification was made in sufficient time.”).

178 The Prize Cases, 67 U.S. 635, 677 (1863) (“A vessel being in a blockaded port is presumed to have notice of the 

blockade as soon as it commences. This is a settled rule in the law of nations.”).

179 Yeaton v. Fry, 9 U.S. 335, 342-43 (1809) (Marshall, C.J.) (“Hispaniola is excepted absolutely from the policy; 

but other ports are within the terms of the voyage insured, if they be not blockaded. It is their character, as 

blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought to 

justify the opinion, that it is the risk attending this character which produces the exception, and which is the risk 

excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This is 

defined by public law. Sailing from Tobago for Curracoa, knowing Curracoa to be blockaded, would have incurred 

this risk, but sailing for that port, without such knowledge, did not incur it.”).
909

13.11 NAVAL MINES

Naval mines are lawful weapons, i.e., they are not illegal per se.

180 However, specific 

rules apply to their use. These rules have developed largely to mitigate the risk these mines pose 

to neutral vessels.

181 Different rules apply to landmines.182 

13.11.1 Background on Naval Mines. Naval mines have been used for area denial, 

coastal and harbor defense, anti-surface and anti-submarine warfare, and blockade. 

Naval mines are sometimes classified as either armed or controlled mines, with 

controlled mines having no destructive capability until affirmatively activated by an arming 

order (thereby becoming armed mines).183 

13.11.2 Peacetime Mining. Naval mines may not be emplaced in internal waters, the 

territorial sea, or archipelagic waters of another State in peacetime without that State’s 

consent.184

 180 Refer to § 6.5 (Lawful Weapons).

181 For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES 

CONCERNING THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328-29 (1909) (“The 

Russo-Japanese War drew the attention of the world to the deadly results produced by floating mines. Though not 

expressly mentioned in Count Benckendorff’s Circular, the laying of torpedoes, etc. (pose de torpilles, etc.) was 

included among the subjects for consideration. Mines were employed in the Russo-Japanese War by both 

belligerents, and hundreds either broke adrift from their moorings or, not be anchored at all, floated into the high 

seas and caused serious loss of life to neutrals long after the conclusion of the war. In the course of the discussion of 

the British proposal in Committee, the Chinese delegate made the following declaration which brings out strongly 

the dangers to which neutral shipping is exposed by their employment: ‘At the same time, the Delegation [of China] 

desires to bring to the knowledge of the delegates certain facts which it ventures to hope will suggest the 

examination of this important proposition in a widely humanitarian sense. The Chinese Government is even to-day 

obliged to furnish vessels engaged in coastal navigation with special apparatus to raise and destroy floating mines 

which are found not only on the open sea but even in its territorial waters. In spite of the precautions which have 

been taken a very considerable number of coasting vessels, fishing boats, junks and sampans have been lost with all 

hands without the details of these disasters being known to the western world. It is calculated from five to six 

hundred of our countrymen engaged in their peaceful occupations have there met a cruel death in consequence of 

these dangerous engines of war.’”) (amendment in original).

182 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

183 2007 NWP 1-14M ¶9.2.1 (“For purposes of this publication, naval mines are classified as armed or controlled 

mines. Armed mines are either emplaced with all safety devices withdrawn, or are armed following emplacement, 

so as to detonate when preset parameters (if any) are satisfied. Controlled mines have no destructive capability until 

affirmatively activated by some form of arming order (whereupon they become armed mines).”); 1989 NWP 9 

¶9.2.1 (“For purposes of this publication, naval mines are classified as armed or controlled mines. Armed mines are 

either emplaced with all safety devices withdrawn, or are armed following emplacement, so as to detonate when 

preset parameters (if any) are satisfied. Controlled mines have no destructive capability until affirmatively activated 

by some form of controlled arming order (whereupon they become armed mines).”).

184 2007 NWP 1-14M ¶9.2.2 (“Naval mines may not be emplaced in internal waters, territorial seas, or archipelagic 

waters of another nation in peacetime without that nation’s consent.”). See also Military and Paramilitary Activities 

in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 I.C.J. 14, 111-12 (¶¶213-15) (“The 

legal rules in the light of which these acts of mining should be judged depend upon where they took place. The 

laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject 

to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is 
910

13.11.2.1 A State’s Archipelagic Waters and Territorial Sea. A State’s right to 

mine its archipelagic waters and territorial sea during peacetime is subject to the right of 

innocent passage of foreign vessels.

185

If armed mines are emplaced in a State’s own archipelagic waters or territorial sea, 

appropriate international notification of the existence and location of such mines is required.186 

Because the right of innocent passage may be suspended only temporarily,187 armed mines must 

be removed or rendered harmless as soon as the security threat that prompted their emplacement 

has terminated.188

Armed mines may not be emplaced in international straits or archipelagic sea lanes 

during peacetime.189

Emplacement of controlled mines in a State’s own archipelagic waters or territorial sea is 

not subject to notification or removal requirements.190

13.11.2.2 International Waters. Controlled mines may be emplaced in 

international waters (i.e., beyond the territorial sea of any State) if they do not unreasonably 

interfere with other lawful uses of the oceans. What constitutes an “unreasonable interference”

may involve a number of factors, including:

• the rationale for their emplacement (e.g., the self-defense requirements of the emplacing 

State);

• the extent of the area to be mined;

 therefore the sovereignty of the coastal State which is affected in such cases. ... It has already been made clear 

above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act;”).

185 Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

186 Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (“The obligations 

incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence 

of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger 

to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, 

which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary 

considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime 

communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the 

rights of other States.”).

187 Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

188 2007 NWP 1-14M ¶9.2.2 (“Because the right of innocent passage can be suspended only temporarily, armed 

mines must be removed or rendered harmless as soon as the security threat that prompted their emplacement has 

terminated.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2 (same).

189 2007 NWP 1-14M ¶9.2.2 (“Armed mines may not be emplaced in international straits or archipelagic sea lanes 

during peacetime.”); 1997 NWP 9 ¶9.2.2 (same).

190 2007 NWP 1-14M ¶9.2.2 (“Emplacement of controlled mines in a nation’s own archipelagic waters or territorial 

sea is not subject to such notification or removal requirements.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2 

(same).
911

• the hazard (if any) to other lawful ocean uses; and 

• the duration of their emplacement.191

Because controlled mines do not constitute a hazard to navigation, international notice of 

their emplacement is not required.192

Armed mines may not be emplaced in international waters prior to the outbreak of armed 

conflict, except under the most demanding requirements of individual or collective self-defense. 

Should armed mines be emplaced in international waters under such circumstances, prior 

notification of their location must be provided. A State emplacing armed mines in international 

waters during peacetime must maintain an on-scene presence in the area sufficient to ensure that 

appropriate warning is provided to ships approaching the danger area. All armed mines must be 

expeditiously removed or rendered harmless when the imminent danger that prompted their 

emplacement has passed.193

13.11.3 Naval Mining During Armed Conflict. Belligerent States may lawfully employ 

naval mines subject to certain restrictions.

Neutral States that lay automatic contact mines off their coasts must observe the same 

rules and take the same precautions as those that are imposed on belligerents.194 In addition, a 

neutral State must inform ship owners, by a notice issued in advance, where automatic contact 

mines have been laid. This notice must be communicated at once to the Governments through 

the diplomatic channel.195

13.11.3.1 General Obligation to Take Feasible Precautions When Using Naval 

Mines. The general obligation to take feasible precautions for the protection of civilians applies 

 191 2007 NWP 1-14M ¶9.2.2 (“The determination of what constitutes an ‘unreasonable interference’ involves a 

balancing of a number of factors, including the rationale for their emplacement (i.e., the self-defense requirements of 

the emplacing nation), the extent of the area to be mined, the hazard (if any) to other lawful ocean uses, and the 

duration of their emplacement.”).

192 2007 NWP 1-14M ¶9.2.2 (“Because controlled mines do not constitute a hazard to navigation, international 

notice of their emplacement is not required.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2 (same).

193 2007 NWP 1-14M ¶9.2.2 (“Armed mines may not be emplaced in international waters prior to the outbreak of 

armed conflict, except under the most demanding requirements of individual or collective self-defense. Should 

armed mines be emplaced in international waters under such circumstances, prior notification of their location must 

be provided. A nation emplacing armed mines in international waters during peacetime must maintain an on-scene 

presence in the area sufficient to ensure that appropriate warning is provided to ships approaching the danger area. 

All armed mines must be expeditiously removed or rendered harmless when the imminent danger that prompted 

their emplacement has passed.”).

194 HAGUE VIII art. 4 (“Neutral Powers which lay automatic contact mines off their coasts must observe the same 

rules and take the same precautions as are imposed on belligerents.”).

195 HAGUE VIII art. 4 (“The neutral Power must inform ship-owners, by a notice issued in advance, where automatic 

contact mines have been laid. This notice must be communicated at once to the Governments through the 

diplomatic channel.”).
912

when using naval mines.196 In particular, when anchored automatic contact mines are employed, 

every possible precaution must be taken for the security of peaceful shipping.197

13.11.3.2 International Notification When Using Armed Mines. International 

notification of the location of emplaced armed mines must be made as soon as military 

exigencies permit.198 Such notification may be conducted through official public 

announcements, communications to the United Nations, bilateral diplomatic notification, or 

notices to mariners.199

In particular, when anchored automatic contact mines are employed, belligerents 

undertake to do their utmost to render these mines harmless within a limited time and, should 

they cease to be under surveillance, to notify the danger zones as soon as military exigencies 

permit, by a notice addressed to ship owners, which must also be communicated to the 

Governments through the diplomatic channel.200

13.11.3.3 Surveillance of Minefields. Surveillance or monitoring of minefields 

may be an appropriate precaution to reduce the risk of harm to peaceful vessels by permitting 

warning to be given to peaceful vessels that unwittingly venture near the minefield.201

13.11.3.4 Recording of Minefield Locations. The location of minefields must be 

carefully recorded to ensure accurate notification and to facilitate subsequent removal and/or 

deactivation.202

13.11.3.5 Restrictions on Where Naval Mines May Be Placed. Mines may not be 

 196 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

197 HAGUE VIII art. 3 (“When anchored automatic contact mines are employed, every possible precaution must be 

taken for the security of peaceful shipping.”).

198 2007 NWP 1-14M ¶9.2.3 (“International notification of the location of emplaced mines must be made as soon as 

military exigencies permit.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (“International notification of the 

location of emplaced armed mines must be made as soon as military exigencies permit.”).

199 For example, HOWARD S. LEVIE, MINE WARFARE AT SEA 146-47 (1992) (“The mining was announced by 

President Nixon on radio and television on the evening of 8 May 1972. Appropriate notification was also given to 

all other nations concerned, both by a letter to the President of the United Nations Security Council, and by direct 

bilateral diplomatic notification, as well as by notices to mariners. That same day (9 May 1972, in Hanoi), mines 

were dropped by aircraft in Haiphong harbor (and in Cam Pha and Hon Gai harbors), three days in advance of the 

mines becoming armed, thus permitting the ships in the harbor three periods of daylight in which to leave if they so 

desired.”).

200 HAGUE VIII art. 3 (“The belligerents undertake to do their utmost to render these mines harmless within a limited 

time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies 

permit, by a notice addressed to ship owners, which must also be communicated to the Governments through the 

diplomatic channel.”).

201 Compare § 6.12.7 (Rules for Using Non-Remotely Delivered Anti-Personnel Mines Without Compliant SD/SDA 

Mechanisms).

202 2007 NWP 1-14M ¶9.2.3 (“The location of minefields must be carefully recorded to ensure accurate notification 

and to facilitate subsequent removal and/or deactivation.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).
913

emplaced by belligerents in neutral waters.203 

Naval mines may be employed to channelize neutral shipping, but not in a manner to 

deny transit passage of international straits or archipelagic sea lanes passage of archipelagic 

waters by such shipping.204

Mining of areas of indefinite extent in international waters is prohibited. Reasonably 

limited barred areas may be established by naval mines, provided neutral shipping retains an 

alternate route around or through such an area with reasonable assurance of safety.205

13.11.3.6 Prohibition Against Mining Off Enemy Coasts and Ports Solely to 

Intercept Commercial Shipping. Naval mines may not be emplaced off the coasts and ports of 

the enemy with the sole objective of intercepting commercial shipping.

206 Mining for some 

other purpose would not violate this rule.

207 For example, mines may otherwise be used in the 

strategic blockade of enemy ports, coasts, and waterways, even if commercial shipping is 

incidentally affected.208

13.11.3.7 Neutralization of Naval Mines. Anchored mines must become harmless 

as soon as they have broken their moorings.209 In particular, it is forbidden to lay anchored 

 203 2007 NWP 1-14M ¶9.2.3 (“Mines may not be emplaced by belligerents in neutral waters.”). Refer to § 15.7

(Neutral Waters).

204 2007 NWP 1-14M ¶9.2.3 (“Naval mines may be employed to channelize neutral shipping, but not in a manner to 

deny transit passage of international straits or archipelagic sea lanes passage of archipelagic waters by such 

shipping.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (“Naval mines may be employed to channelize neutral 

shipping, but not in a manner to impede the transit passage of international straits or archipelagic sea lanes passage 

of archipelagic waters by such shipping.”).

205 2007 NWP 1-14M ¶9.2.3 (“Mining of areas of indefinite extent in international waters is prohibited. Reasonably 

limited barred areas may be established by naval mines, provided neutral shipping retains an alternate route around 

or through such an area with reasonable assurance of safety.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 

(same).

206 HAGUE VIII art. 2 (“It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the 

sole object of intercepting commercial shipping.”); 2007 NWP 1-14M ¶9.2.3 (“Naval mines may not be emplaced 

off the coasts and ports of the enemy with the sole objective of intercepting commercial shipping, but may otherwise 

be employed in the strategic blockade of enemy ports, coasts, and waterways.”); 1997 NWP 9 ¶9.2.3 (same); 1989 

NWP 9 ¶9.2.3 (same).

207 WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 283 (2009) (“If there is some other 

purpose to the laying of the mines, their use in these localities is lawful. Thus, if the purpose was to intercept all 

shipping, both commercial and military, the laying of the weapons would not breach this provision.”).

208 For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, May 8, 1972, 1972 

PUBLIC PAPERS OF THE PRESIDENTS 583, 585 (“I therefore concluded that Hanoi must be denied the weapons and 

supplies it needs to continue the aggression. In full coordination with the Republic of Vietnam, I have ordered the 

following measures which are being implemented as I am speaking to you. All entrances to North Vietnamese ports 

will be mined to prevent access to these ports and North Vietnamese naval operations from these ports. ... Countries 

with ships presently in North Vietnamese ports have already been notified that their ships will have three daylight 

periods to leave in safety. After that time, the mines will become active and any ships attempting to leave or enter 

these ports will do so at their own risk.”).

209 2007 NWP ¶9.2.3 (“Anchored mines must become harmless as soon as they have broken their moorings.”); 1997 

NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).
914

automatic contact mines that do not become harmless as soon as they have broken loose from 

their moorings.210

Unanchored mines not otherwise affixed or imbedded on the ocean floor must become 

harmless within an hour after loss of control over them.

211 In particular, it is forbidden to lay 

unanchored (i.e., free-floating) automatic contact mines, except when they are so constructed as 

to become harmless one hour at most after the person who laid them ceases to control them.

212

13.11.4 Post-Conflict Naval Demining Obligations. The removal of naval mines at the 

end of the conflict may be the subject of specific agreements among States.

213 

At the close of a war to which Hague VIII is applicable, Parties to Hague VIII have an 

obligation to remove the naval mines that they had laid, each State removing its own mines.214 

As regards anchored automatic contact mines laid by one of the belligerents off the coast of the 

other, their position must be notified to the other party by the State that laid them, and each State 

must proceed with the least possible delay to remove the mines in its own waters.215

13.12 TORPEDOES

It is forbidden to use torpedoes that do not become harmless when they miss their 

mark.

216 Such torpedoes may become a hazard to innocent shipping, and therefore torpedoes 

must be designed to become harmless when they have missed their mark. 

For example, torpedoes have been designed to become harmless upon completion of their 

propulsion run, such as by sinking to the bottom.

13.12.1 Torpedoes – Notes on Terminology. In the 19th century, the term “torpedo” was 

 210 HAGUE VIII art. 1 (“It is forbidden ... 2. To lay anchored automatic contact mines which do not become harmless 

as soon as they have broken loose from their moorings;”).

211 2007 NWP ¶9.2.3 (“Unanchored mines not otherwise affixed or imbedded in the bottom must become harmless 

within an hour after loss of control over them.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).

212 HAGUE VIII art. 1 (“It is forbidden ... 1. To lay unanchored automatic contact mines, except when they are so 

constructed as to become harmless one hour at most after the person who laid them ceases to control them;”).

213 For example, Protocol to the Agreement on Ending the War and Restoring Peace in Vietnam Concerning the 

Removal, Permanent Deactivation, or Destruction of Mines in the Territorial Waters, Ports, Harbors, and Waterways 

of the Democratic Republic of Vietnam, Jan. 27, 1973, 24 U.S.T. 1, art. 1 (“The United States shall clear all the 

mines it has placed in the territorial waters, ports, harbors, and waterways of the Democratic Republic of Vietnam. 

This mine clearing operation shall be accomplished by rendering the mines harmless through removal, permanent 

deactivation, or destruction.”).

214 HAGUE VIII art. 5 (“At the close of the war, the Contracting Powers undertake to do their utmost to remove the 

mines which they had laid, each Power removing its own mines.”).

215 HAGUE VIII art. 5 (“As regards anchored automatic contact mines laid by one of the belligerents off the coast of 

the other, their position must be notified to the other party by the Power which laid them, and each Power must 

proceed with the least possible delay to remove the mines in its own waters.”).

216 HAGUE VIII art. 1 (“It is forbidden ... 3. To use torpedoes which do not become harmless when they have missed 

their mark.”).
915

used to refer to any explosive munition that operated by contact against the hull of a ship,

including relatively stationary munitions that, in modern parlance, would be called mines.217 

However, by the time of the 1907 Hague VIII Convention, the term “torpedo” was used in the 

modern sense to refer to munitions that propelled through the water.218

13.13 DECEPTION BY NAVAL FORCES, INCLUDING THE USE OF ENEMY OR NEUTRAL FLAGS

In general, the rules concerning good faith, ruses, and perfidy also apply to naval 

warfare.

219 For example, it would be prohibited for a belligerent warship to convey falsely the 

appearance of a hospital ship.220 On the other hand, a variety of deceptions are not prohibited,

including camouflage, deceptive lighting, disguised electronic signatures, and dummy ships,

among others.221

The rules concerning deception by belligerent warships, especially with respect to the 

flying of neutral flags or with respect to disguise as merchant vessels, may be considered more 

permissive than similar situations in land warfare.

222

13.13.1 Belligerent Warship’s Use of False Colors and Other Disguises. In particular, 

according to custom, it is permissible for a belligerent warship to use false colors and to disguise 

her outward appearance in other ways in order to deceive an enemy, provided that before going 

into action such warship shows her true colors.

223

 217 For example, TAMARA MOSER MELIA, DAMN THE TORPEDOES: A SHORT HISTORY OF U.S. NAVAL MINE 

COUNTERMEASURES, 1777-1991, 3 (1991) (“At high tide on the morning of 5 August Farragut entered the bay. 

Farragut’s officers had persuaded him to allow the sloop Brooklyn, hastily rigged with a rudimentary torpedo catcher 

on the bowsprit, to lead the advance in place of Farragut’s flagship, Hartford. Contrary to Farragut’s orders, 

monitor Tecumseh moved west of the red buoy where it struck and detonated one of the newly placed mines. As 

Tecumseh quickly went down, Brooklyn suddenly stopped and backed, stalling the fleet’s advance. High in 

Hartford’s rigging Farragut watched Tecumseh sink and Brooklyn hesitate. From Hartford’s poop deck Lieutenant 

Watson heard the admiral’s exchange with Brooklyn: ‘Farragut hailed again and all that could be distinguished of 

her reply was something about torpedoes. ‘Damn the torpedoes!’ he instantly shouted, ordering Hartford’s captain 

‘Full speed ahead, Drayton.’’”).

218 A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES CONCERNING 

THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328 (1909) (“The word ‘torpille’ 

until recently appears to have meant any sort of receptacle containing an explosive intended to operate against the 

hull of a ship by contact either on or below the water line. Thus, there were torpilles fizes, torpilles mouillees, 

torpilles mobiles, and finally torpilles automobiles. It would appear that latterly the word has come to mean only 

‘automobile torpedo,’ e.g. in the Convention now under consideration the word ‘mine’ is used when an automatic 

torpedo is not implied.”).

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

220 Refer to § 5.24.2 (Distinctive Emblems of the Geneva Conventions (e.g., Red Cross)); § 7.12.3 (Distinctive 

Marking and Other Identification of Hospital Ships and Coastal Rescue Craft).

221 Refer to § 5.25.2 (Examples of Ruses).

222 Refer to § 5.24.1 (Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State).

223 See, e.g., 2007 NWP 1-14M ¶12.3.1 (“Under the customary international law of naval warfare, it is permissible 

for a belligerent warship to fly false colors and disguise its outward appearance in other ways in order to deceive the 

enemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for a 

warship to go into action without first showing her true colors.”); 2007 NWP 1-14M ¶12.5.1 (“Naval surface and 
916

For example, a belligerent warship may fly enemy or neutral colors and display enemy or 

neutral markings in order to deceive the enemy into believing the vessel is of enemy or neutral 

nationality or is not a warship.224 Such deceptions may be used in order to facilitate the 

approach of enemy vessels or to escape enemy vessels.225

Warships, however, may not seek to claim falsely the status of vessels that are exempt 

from capture or destruction. These vessels include: (1) cartel vessels; (2) hospital ships; (3) 

vessels charged with religious, non-military scientific, or philanthropic missions; (4) vessels 

granted safe conduct; and (5) small coastal fishing vessels and small boats engaged in local 

coastal trade.226

 

subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must, 

however, display their true colors prior to an actual armed engagement.”); 1955 NWIP 10-2 ¶640a (“In particular, 

according to custom, it is permissible for a belligerent warship to use false colors and to disguise her outward 

appearance in other ways in order to deceive an enemy, provided that prior to going into action such warship shows 

her true colors.”).

224 For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 140 footnote 37 (“During World War II the 

Germans enjoyed a measurable degree of success through the skillful disguise they provided for their armed raiders. 

... The tactics of the armed raiders were to reveal their true identity only after having come within close enough 

range to overwhelm the victim (usually armed enemy merchant vessels) by surprise.— One of the most notable 

actions involving these armed raiders took place in November 1941 between the Australian cruiser Sydney and the 

German armed raider Kormoran. The disguised raider, when approached by the Sydney, identified herself as a 

Dutch merchant vessel. Before the Sydney could establish the truth or falsity of her claimed identity the Kormoran

cast off her disguise and opened fire at a distance of 2,000 yards. As a result of the action the Sydney was destroyed 

with complete loss of officers and crew.”); LAUTERPACT, II OPPENHEIM’S INTERNATIONAL LAW 510 (§211) (“On the 

other hand, the following is a perfectly legitimate ruse which is reported to have occurred during the World War: at 

the end of October 1914, the German cruiser Emden, hiding her identity by rigging up a dummy fourth funnel and 

flying the Japanese flag, passed the guardship of the harbor Penang in the Malay States, made no reply to its signals, 

came down at full speed on the Russian cruiser Zhemshug, and then, after lowering the Japanese flag and hoisting 

the German flag, opened fire and torpedoed her.”).

225 LAUTERPACT, II OPPENHEIM’S INTERNATIONAL LAW 509 (§211) (“As regards the use of a false flag, it is by most 

writers considered perfectly lawful for a man-of-war to use a neutral or enemy flag (1) when chasing an enemy 

vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action. On the other 

hand, it is universally agreed that, immediately before an attack, a vessel must fly her national flag.”).

226 Refer to § 13.6 (Enemy Vessels Exempt From Capture or Destruction).
917

XIV – Air and Space Warfare

Chapter Contents

14.1 Introduction

14.2 Legal Boundaries of Airspace

14.3 Aircraft Status

14.4 Status of Aircrew on Military Aircraft

14.5 Measures Short of Attack: Interception, Diversion, and Capture

14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities

14.7 Airspace Zones

14.8 Attacks Against Military Objectives in the Air

14.9 Air Attacks Against Military Objectives on the Ground

14.10 International Law And Warfare in Outer Space

14.1 INTRODUCTION

This Chapter addresses the international law applicable to U.S. air and space operations 

during international armed conflict. This Chapter also discusses the application to air operations 

of some of the law of war rules discussed elsewhere in this manual.

Air Force publications have provided discussion of other aspects of public international 

law relating to air operations, including discussion of rules applicable during peacetime.1

14.1.1 Application of the 1944 Chicago Convention With Respect to Military Aircraft 

and With Respect to States’ Rights During Armed Conflict. The 1944 Chicago Convention 

primarily addresses States’ obligations regarding international civil aviation.2 The 1944 Chicago 

Convention does not restrict State action during war.

3

 In addition, the 1944 Chicago Convention 

generally is not applicable to State aircraft.

4

 However, the 1944 Chicago Convention imposes

requirements with respect to entry by State aircraft into foreign airspace and with respect to the 

issue of due regard for the safety of navigation of civil aircraft.5

14.1.1.1 1944 Chicago Convention and Freedom of Action of States During 

Armed Conflict. According to Article 89 of the 1944 Chicago Convention, “[i]n case of war, the 

provisions of this Convention shall not affect the freedom of action of any of the contracting 

 1 See, e.g., Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law 

(3rd ed., 2014); 1976 AIR FORCE PAMPHLET 110-31.

2 1944 CHICAGO CONVENTION preamble (“THEREFORE, the undersigned governments having agreed on certain 

principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner 

and that international air transport services may be established on the basis of equality of opportunity and operated 

soundly and economically; Have accordingly concluded this Convention to that end.”).

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

4 Refer to § 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).

5 Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (Due 

Regard for the Safety of Navigation of Civil Aircraft).
918

States affected, whether as belligerents or as neutrals.”6

 Article 89 may be understood as an 

example, reflected in this case in the Convention, of the application of the general principle that 

the law of war, as a body of law specially adapted to the circumstances of armed conflict, is the 

controlling body of law with respect to armed conflict.7 Under Article 89, a State’s rights under 

the law of war (and the law of neutrality) would prevail in the event of conflict with obligations 

under the 1944 Chicago Convention.

The provisions of the 1944 Chicago Convention may be relevant during armed conflict

insofar as they articulate restrictions that continue to apply to civil aircraft. For example, neutral 

civil aircraft engaged in international navigation would still be required to seek permission from 

a foreign neutral State before carrying munitions of war or implements of war through that 

neutral State’s airspace.8

The 1944 Chicago Convention’s requirements with respect to entry by State aircraft into 

foreign airspace and with respect to the issue of due regard for the safety of navigation of civil 

aircraft are discussed below.9

14.1.1.2 1944 Chicago Convention and Military Aircraft or Other State Aircraft. 

The 1944 Chicago Convention provides generally that the Convention “shall be applicable only 

to civil aircraft, and shall not be applicable to state aircraft.”10 State aircraft include aircraft used 

in military service.

11 The United States has made statements interpreting this provision of the 

1944 Chicago Convention.

12 

 6 1944 CHICAGO CONVENTION art. 89 (“In case of war, the provisions of this Convention shall not affect the freedom 

of action of any of the contracting States affected, whether as belligerents or as neutrals.”).

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

8 See, e.g., 1944 CHICAGO CONVENTION art. 35(a) (“(a) No munitions of war or implements of war may be carried in 

or above the territory of a State in aircraft engaged in international navigation, except by permission of such State. 

Each State shall determine by regulations what constitutes munitions of war or implements of war for the purposes 

of this Article, giving due consideration, for the purposes of uniformity, to such recommendations as the 

International Civil Aviation Organization may from time to time make.”).

9 Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (Due 

Regard for the Safety of Navigation of Civil Aircraft).

10 1944 CHICAGO CONVENTION art. 3(a) (“This Convention shall be applicable only to civil aircraft, and shall not be 

applicable to state aircraft.”).

11 Refer to § 14.3.1 (State Versus Civil Aircraft).

12 See, e.g., Department of State Airgram CA-8085, Feb. 13, 1964, quoting U.S. Inter-Agency Group on 

International Aviation (IGIA) Doc. 88/1/1C, MS, Department of State, file POL 31 U.S., IX WHITEMAN’S DIGEST

430-31 (“The Chicago Convention expressly excludes state aircraft from its scope and thus from the scope of ICAO 

[International Civil Aviation Organization] responsibility. The United States intends that its state aircraft will 

follow the ICAO procedures set forth in Annex 2 [“Rules of the Air”] to the greatest extent practicable; however, the 

United States considers that state aircraft of any nation are subject to control and regulation exclusively by that 

nation (unless operating within airspace over which another nation has sovereignty). With respect to State aircraft, 

contracting States need not undertake any commitment, and the United States does not undertake any commitment, 

to other nations as to the rules and regulations which any specific state aircraft or class of state aircraft will follow, 

except when issuing regulations for their state aircraft, that ‘they will have due regard for the safety of navigation of 

civil aircraft’ (Article 3(d), Chicago Convention).”).
919

The 1944 Chicago Convention, however, imposes obligations with respect to entry into 

foreign airspace by State aircraft and an obligation with respect to State aircraft and the safety of 

navigation of civil aircraft.13

14.1.1.3 Requirement for State Consent Prior to Entry by Foreign State Aircraft. 

The 1944 Chicago Convention provides that State aircraft (which include military aircraft) are 

not permitted to enter the airspace of another State without that State’s consent.14 

During armed conflict, the requirement for a State’s consent to entry into its airspace 

would generally continue to apply with respect to neutral military aircraft seeking to enter the 

airspace of foreign States.

This requirement, however, clearly would not apply to belligerent military aircraft 

conducting operations in enemy airspace.

The requirement for a State’s consent to entry into its airspace may be characterized as 

applicable with respect to belligerent military aircraft and a neutral State’s airspace; however, 

even if belligerent military aircraft enter neutral airspace with that neutral State’s consent, such 

entry may involve violations of neutrality.

15

There are exceptions to the requirement for State consent to entry into its airspace by 

State aircraft in certain cases of violations of neutrality.16

There is an exception during peacetime to the requirement for a State’s consent to entry 

into its airspace by foreign State aircraft when such entry is due to distress and there is no 

reasonable safe alternative.17

14.1.1.4 Due Regard for the Safety of Navigation of Civil Aircraft. The 1944 

Chicago Convention also provides that “[t]he contracting States undertake, when issuing 

regulations for their state aircraft, that they will have due regard for the safety of navigation of 

 13 Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (Due 

Regard for the Safety of Navigation of Civil Aircraft).

14 1944 CHICAGO CONVENTION art. 3(c) (“No state aircraft of a contracting State shall fly over the territory of 

another State or land thereon without authorization by special agreement or otherwise, and in accordance with the 

terms thereof.”).

15 Refer to § 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).

16 Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent 

Violations of Neutrality).

17 U.S. Response to Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703, 

708 (“—Although we recognize that military aircraft normally require permission to enter the territorial airspace of 

another nation, international law recognizes a right of entry for foreign aircraft, state or civil, in circumstances such 

as these when such entry is due to distress and there is no reasonable safe alternative (Footnote 3 below). —

Notwithstanding the ordinary rules requiring consent, a peacetime right to enter in distress for military aircraft is 

consistent with established international practice. — Such a right is clearly inferable both from analogous situations 

in which such a right exists (e.g., for civil aircraft under Article 25 of the Chicago Convention) and from basic 

humanitarian considerations.”).
920

civil aircraft.”18 Assuming that an obligation to exercise due regard would be applicable during 

armed conflict, what regard would be due in any particular set of circumstances would depend on 

military necessity, and other principles and rules of the law of war, which are specially adapted 

to the circumstances of armed conflict. For example, the use of force against enemy civil aircraft 

that constitute military objectives and thus may be made the object of attack under the law of war 

would not be prohibited.19

As reflected in Article 89 of the 1944 Chicago Convention, the Convention does not 

restrict the freedom of action of States as belligerents or neutrals.

20 Nonetheless, as a practical 

matter, modern air warfare is often conducted in complex airspace, and U.S. forces have 

routinely and intensively coordinated flight operations with national civil aviation authorities. 

This coordination is important for a variety of purposes, including ensuring mission 

accomplishment, avoiding fratricide and mid-air collisions, and ensuring the safety of 

international civil aviation. DoD policy has required that, in the event of combat operations 

during armed conflict, aircraft commanders, consistent with military necessity, take measures to 

minimize hazards to civil air or surface traffic.21

Similarly, under the law of the sea, military operations must be conducted with due 

regard for the high seas freedom of overflight in international airspace.22

14.1.2 Past Attempts to Conclude Treaties About Air Warfare. Initial attempts to 

conclude agreements on the law of war governing means and methods in the air context were 

made during the 1899 and 1907 Hague Peace Conferences, before air power had become a 

significant factor in warfare. Extensive efforts were made in 1922-23 to adopt a code of laws 

specifically applicable only to air warfare; however, the proposed rules were not ratified by any 

State.

23 The United States has not ratified a treaty applicable solely to air operations during 

armed conflict, although the United States has ratified treaties that have included specific 

references to aspects of war in the air, such as protection for medical aircraft in the 1949 Geneva 

 18 1944 CHICAGO CONVENTION art. 3(d) (“The contracting States undertake, when issuing regulations for their state 

aircraft, that they will have due regard for the safety of navigation of civil aircraft.”).

19 Refer to § 14.8.3 (Attacks Against Civil Aircraft).

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

21 DOD INSTRUCTION 4540.01, Use of International Airspace by U.S. Military Aircraft and for Missile/Projectile 

Firings, ¶4.2.3 (Mar. 28, 2007) (“In the event of combat operations in time of war, armed conflict, national 

emergency, situations requiring self-defense, or similar military contingencies, aircraft commanders shall, consistent 

with military necessity, take measures to minimize hazards to civil air or surface traffic. Such actions shall be of no 

greater extent or duration than required by military necessity.”); DOD DIRECTIVE 4540.1, Use of Airspace by U.S. 

Military Aircraft and Firings Over the High Seas, ¶6b (Jan. 13, 1981) (“In the event of combat operations in time of 

war, armed conflict, national emergency, situations requiring self-defense, or similar military contingencies, 

departure from the operating procedures in this Directive may be required. In all such instances, however, all 

possible precautions shall be taken to minimize any hazard to the safety of other air and surface traffic and departure 

from procedures set forth in this Directive shall be of no greater extent or duration than is required to meet the 

contingency.”).

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

23 Refer to § 19.11 (1923 Hague Air and Radio Rules).
921

Conventions.24

14.2 LEGAL BOUNDARIES OF AIRSPACE

The legal classifications of airspace may be relevant to the application of the law of war 

and therefore may affect military operations during armed conflict by:

• determining whether airspace is neutral airspace;

25

• determining the authority that a belligerent State has with respect to neutral aircraft in an 

area; or

• determining the authority that a neutral State has with respect to belligerent aircraft in an 

area.

14.2.1 Lateral Boundaries of Airspace. The lateral boundaries of the airspace are 

determined by the status of the land or water directly beneath them. 

Airspace is often divided between national airspace (i.e., airspace over a State’s land 

territory, internal waters, territorial seas, and archipelagic waters), which is subject to the 

sovereignty of a State, and international airspace, which is not subject to the sovereignty of any 

State.26 In addition, special rules apply to international straits and archipelagic sea lanes.27

The division between national airspace and international airspace is similar to the 

division between national waters and international waters.

28 One notable distinction, however, 

is that aircraft do not enjoy the same right of innocent passage over territorial seas that ships 

enjoy through territorial seas.

29

14.2.1.1 National Airspace. Every State has complete and exclusive sovereignty 

over the airspace above its territory.

30 In other words, a State has sovereignty over the airspace 

that is above land or waters that are subject to its sovereignty.31 Thus, a State’s national airspace 

 24 Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

25 Refer to § 15.10 (Neutral Airspace).

26 Refer to § 14.2.1.1 (National Airspace); § 14.2.1.2 (International Airspace).

27 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea 

Lanes).

28 Refer to § 13.2.2 (National Waters); § 13.2.3 (International Waters).

29 Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

30 1944 CHICAGO CONVENTION art. 1 (“The contracting States recognize that every State has complete and exclusive 

sovereignty over the airspace above its territory.”). Cf. 49 U.S.C. § 40103 (a)(1) (“The United States Government 

has exclusive sovereignty of airspace of the United States.”).

31 See, e.g., 1944 CHICAGO CONVENTION art. 2 (“For the purposes of this Convention the territory of a State shall be 

deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or 

mandate of such State.”); Convention on the Territorial Sea and Contiguous Zone, art. 2, Apr. 29, 1958, 516 UNTS 

205, 208 (“The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and 

subsoil.”). Consider LOS CONVENTION art. 2(2) (“This sovereignty extends to the air space over the territorial sea 
922

includes:

• airspace over that State’s land territory, including its internal waters;

32

• airspace over that State’s territorial sea;

33 and

• airspace over that State’s archipelagic sea.34

14.2.1.2 International Airspace. International airspace may be understood as all 

airspace that is not subject to the sovereignty of any State, including:

35

• airspace over States’ contiguous zones;36

• airspace over States’ Exclusive Economic Zones;

37 and

• airspace over the high seas.

38

14.2.2 Vertical Boundary Between Airspace and Outer Space. A State’s sovereignty over 

its airspace does not extend to outer space, which is not subject to the sovereignty of any State.

39

It is generally accepted that orbiting objects are in outer space.40 The United States has 

 

as well as to its bed and subsoil.”); LOS CONVENTION art. 49(2) (“This sovereignty extends to the air space over the 

archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.”).

32 Refer to § 13.2.2.1 (Internal Waters).

33 Refer to § 13.2.2.2 (Territorial Seas).

34 Refer to § 13.2.2.3 (Archipelagic Waters).

35 See, e.g., DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) 

(“international airspace. All airspace seaward of coastal states’ national airspace, including airspace over 

contiguous zones, exclusive economic zones, and the high seas. International airspace is open to all aircraft of all 

nations. Military aircraft may operate in such areas free of interference or control by the coastal state.”).

36 Refer to § 13.2.3.2 (Contiguous Zones).

37 Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)).

38 Refer to § 13.2.3.4 (High Seas).

39 Refer to § 14.10.1 (Classification of Outer Space).

40 See, e.g., Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The 

Law, 85 (3rd ed., 2014) (“According to this approach, the upper limit to airspace is above the highest altitude at 

which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. The result is that 

anything in orbit or beyond can safely be regarded as being in outer space.”); 2007 NWP 1-14M ¶¶1.10, 2.11.1 

(“The upper limit of airspace subject to national jurisdiction has not been authoritatively defined by international 

law. International practice has established that airspace terminates at some point below the point at which artificial 

satellites can be placed in orbit without free-falling to earth. Outer space begins at that undefined point. ... 

Although there is no legally defined boundary between the upper limit of national airspace and the lower limit of 

outer space, international law recognizes freedom of transit by man-made space objects at earth orbiting altitude and 

beyond. A generally acceptable definition is that outer space begins at the undefined upper limit of the earth’s 

airspace and extends to infinity.”); 2006 AUSTRALIAN MANUAL ¶8-2 (“While views differ as to the precise vertical 

and horizontal extent of airspace, for practical purposes, it can be said that the upper limit to a state’s rights in 

airspace is above the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth 
923

expressed the view that there is no legal or practical need to delimit or otherwise define a 

specific boundary between airspace and outer space.41

14.2.3 Flight Information Regions. Flight Information Regions (FIRs) are areas of 

airspace allocated by the International Civil Aviation Organization (ICAO). Every portion of 

airspace belongs to a defined flight information region. Within each flight information region, a 

flight information service and an alerting service are provided by the national authorities 

responsible for air traffic control. These services are the most basic levels of air traffic service,

and they provide information to aviators necessary for the safe and efficient conduct of flights.42

A flight information region normally encompasses substantial areas of international 

airspace and does not necessarily reflect international or national airspace borders.43

 

satellite in orbit. The result is that anything in orbit or beyond can safely be regarded as in outer space.”); 2004 UK

MANUAL ¶12.13 (“Views differ as to the precise vertical and horizontal extent of airspace. For practical purposes, it 

can be said that the upper limit to a state’s rights in airspace is above the highest altitude of what an aircraft can fly 

and below the lowest possible perigee of an earth satellite in orbit. The result is that anything in orbit or beyond can 

safely be regarded as in outer space.”).

41 Kenneth Hodgkins, U.S. Advisor to the United Nations, Legal Subcommittee (LSC) of the United Nations 

Committee on the Peaceful Uses of Outer Space (COPUOS) 719th Meeting [unedited transcript] (Apr. 8, 2005) (“As 

we have stated on previous occasions, the United States is firmly of the view that there is no need to seek a legal 

definition or delimitation for outer space. The current framework has presented no practical difficulties and, indeed, 

activities in outer space are flourishing. Given this situation, an attempt to define or delimit outer space would be an 

unnecessary theoretical exercise that could potentially complicate existing activities and that might not be able to 

anticipate continuing technological developments. The current framework has served us well and we should 

continue to operate under this framework until there is a demonstrated need and a practical basis for developing a 

definition or delimitation.”); Stephen Mathias, U.S. Advisor to the United Nations, U.S. Statements on Specific 

Agenda Items before the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (2003) (“At this 

time, the United States remains convinced that there is no need to seek a legal definition of delimitation for outer 

space. Activities in outer space and in airspace are flourishing and have raised no practical need for a definition or

limitation between the spheres. In the absence of a real need, any attempt to develop a definition would be illadvised as there would be no experience to call upon in agreeing upon any particular definition or delimitation.”); 

U.S. Statement before the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer 

Space regarding the Definition and Delimitation of Outer Space and the Character and Utilization of the 

Geostationary Orbit, Apr. 4, 2001, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 721 (“Our 

position continues to be that defining or delimiting outer space is not necessary. No legal or practical problems have 

arisen in the absence of such a definition. On the contrary, the differing legal regimes applicable in respect of 

airspace and outer space have operated well in their respective spheres. The lack of a definition or delimitation of 

outer space has not impeded the development of activities in either sphere. ... It would be dangerous for the Legal 

Subcommittee to agree to an artificial line between air space and outer space, when it cannot predict the 

consequences of such a line.”).

42 Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight 

Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 635, 636 (“A Flight Information Region, or FIR, is simply an area over which a civil aviation 

authority has responsibility for provision of flight information services. FIRs are allocated to coastal states by the 

International Civil Aviation Organization (ICAO) to facilitate the safety of civil aviation. Some FIRs encompass 

both national and international airspace. Civil aviation authorities may confuse responsibility for and authority over 

civil aviation in a FIR for sovereignty over the area.”).

43 DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (“flight 

information region. An airspace of defined dimensions within which flight information service and alerting service 

are provided. A flight information region normally encompasses substantial areas of international airspace and does 
924

Under Article 3 of the 1944 Chicago Convention, flight information region rules do not 

apply to State aircraft, including military aircraft, and military aircraft are free to operate in 

international airspace without the consent of or notice to coastal State authorities.

44 Thus, for 

example, a flight information region could not limit the rights of belligerent military aircraft 

during armed conflict.

14.2.4 Air Defense Identification Zone (ADIZ). In general terms, an ADIZ is an area of 

airspace over land or water in which the ready identification, location, and control of aircraft 

may be required in the interests of national security.45 The United States has established 

ADIZs.46

14.2.4.1 Establishment of an ADIZ. The legal basis for a State to establish an

ADIZ is its right to establish conditions and procedures for entry into its national airspace.47 

 

not reflect international or national airspace borders. Responsibility for flight information region management is not 

the same as territorial authority; therefore, state aircraft are not to request aircraft diplomatic clearance to enter a 

flight information region if the aircraft will not enter national airspace. The International Civil Aviation 

Organization establishes flight information regions in accordance with the Convention on International Civil 

Aviation. Civil aviation authorities of designated nations administer them pursuant to International Civil Aviation 

Organization authority, rules, and procedures.”).

44 Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight 

Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 635-36 (“A coastal state may establish a FIR in international airspace consistent with the 

requirements of the 1944 Convention on International Civil Aviation (Chicago Convention), to which your country 

is a party; however, under Article 3 of that convention, FIR rules do not apply to state aircraft, including military 

aircraft. State aircraft, including military aircraft, operating in international airspace (whether within or outside a 

FIR) are free to operate without the consent of or notice to coastal state authorities and are not subject to the 

jurisdiction or control of the ATC authorities of those states. No notice to, clearance from, or approval of a coastal 

state is required to exercise such freedoms of navigation and overflight. The United States reaffirms its navigation 

and overflight rights in international airspace.”).

45 14 CODE OF FEDERAL REGULATIONS § 99.3 (“Air defense identification zone (ADIZ) means an area of airspace 

over land or water in which the ready identification, location, and control of all aircraft (except for Department of 

Defense and law enforcement aircraft) is required in the interest of national security.”).

46 See, e.g., Ian E. Rinehart & Bart Elias, China’s Air Defense Identification Zone (ADIZ), 2 (Congressional 

Research Service, Jan. 30, 2015) (“In 1948, the U.S. Air Force designated several offshore areas as ‘active defense 

areas’ or ‘defense zones.’ From these, the first ADIZs in the world were established in 1950, under an Executive 

order directing the Secretary of Commerce to exercise security control over aircraft. Various defense zones were 

redesignated as ADIZs (over Atlantic, Pacific, and Gulf of Mexico waters[)] the Alaska ADIZ, the Guam ADIZ, and 

the Hawaii ADIZ, are codified in Title 14, Part 99, of the Code of Federal Regulations, along with the procedural 

requirements for flights operating in these designated areas. They are predominantly located over water and 

typically do not extend to the shore, leaving a narrow strip of sovereign airspace parallel to the coastline that is not 

within the ADIZ.”); 1955 NWIP 10-2 ¶422c endnote 16 (“It is apparent that the potential threat to the security of 

states presented by aircraft is considerably greater than the potential threat presented by vessels. However, there has 

not yet emerged a recognized practice of ‘contiguous air space zones,’ analogous to contiguous zones established on 

the high seas (see paragraph 413d), enabling states to exercise certain legal controls over aircraft flying outside 

territorial air space. The present system of Air Defense Identification Zones (ADIZ) employed by the United States 

extends to the air space above the open sea, and is limited to the purpose of identifying aircraft.”).

47 See, e.g., 2007 NWP 1-14M ¶2.7.2.3 (“International law does not prohibit nations from establishing air defense 

identification zones (ADIZ) in the international airspace adjacent to their territorial airspace. The legal basis for 

ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory. Accordingly, 
925

The establishment of an ADIZ by a State does not constitute a claim to international 

airspace as its own. The ADIZ is merely a reference point for the initiation of identification 

procedures for aircraft on a course to enter national airspace.48

Because the establishment of an ADIZ by a State that extends to international airspace 

does not confer sovereignty over that airspace, the ADIZ, and its implementing regulations and 

operational practices, must respect the rights of other States to use international airspace.

The United States does not recognize the right of a State to apply its ADIZ laws and 

regulations to foreign aircraft, either civil aircraft or State aircraft, if those aircraft do not intend 

to enter the national airspace of that State.49

14.2.4.2 Failure to Comply With Identification Requirements. Failure by an 

aircraft to identify itself once it enters an ADIZ does not, of itself, entitle the declaring State to 

use force against that aircraft, although it may subject the aircraft to interception.

50 Depending 

on the circumstances, a persistent failure to comply with instructions may be evidence that the 

aircraft, in fact, poses a threat to the declaring State.51

Establishment of an ADIZ, like other warning zones, does not relieve the proclaiming 

State of its obligations under applicable international law, such as its obligation under the law of 

war to refrain from attacking aircraft that do not constitute lawful military objectives, or its 

obligation to refrain from attacks against civil aircraft under peacetime international law.52

 

an aircraft approaching national airspace can be required to identify itself while in international airspace as a 

condition of entry approval.”); 1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“Civil aircraft on a course to penetrate 

United States airspace are required to identify themselves upon entry into the [Air Defense Identification] zone. 

This requirement is based on the right of every state to establish conditions and procedures for entry into its 

airspace.”). See also 1944 CHICAGO CONVENTION art. 11 (“Subject to the provisions of this Convention, the laws 

and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged 

in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be 

applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by 

such aircraft upon entering or departing from or while within the territory of that State.”).

48 1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“An air defense identification zone does not constitute a claim of 

sovereignty over airspace above the high seas. Such a zone is merely a reference point for initiation of identification 

procedures for aircraft on a course to penetrate national airspace.”).

49 See, e.g., John Kerry, Secretary of State, Press Statement (Nov. 23, 2013) (“We don’t support efforts by any State 

to apply its ADIZ procedures to foreign aircraft not intending to enter its national airspace. The United States does 

not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace.”); U.S. Response to 

Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703, 707 (“The U.S. does 

not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter 

national airspace, and does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.”).

50 1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“State aircraft on a course to penetrate United States airspace may be 

requested to identify themselves, and failing voluntary identification may be identified by intercept aircraft or 

otherwise as appropriate.”).

51 Compare § 14.5.2.1 (Failure to Comply by Civil Aircraft).

52 Refer to § 13.9.2 (Use of Zones to Warn Vessels or Aircraft – War, Operational, Warning, and Safety Zones); 

§ 14.8.3.1 (Protection of Civil Aircraft in Peacetime).
926

14.3 AIRCRAFT STATUS

14.3.1 State Versus Civil Aircraft. The 1944 Chicago Convention distinguishes between 

State aircraft and civil aircraft.53 

Aircraft used in military, customs, and police services are deemed to be State aircraft for 

the purposes of the 1944 Chicago Convention.54 More generally, State aircraft may be 

understood to include other aircraft operated by a government for sovereign, non-commercial 

purposes.55 In U.S. practice, DoD contract aircraft have not qualified as State aircraft, unless 

specifically designated as such by the United States.56

The distinction between State aircraft and civil aircraft may be important for a variety of 

reasons. For example, the 1944 Chicago Convention generally does not apply to State aircraft.57 

In addition, enemy State aircraft are subject to seizure as war booty.58 As another example, 

neutral State aircraft are not subject to visit and search or diversion.

59 And, although not 

necessary for an aircraft to constitute a military objective, the status of an aircraft as State aircraft 

 53 1944 CHICAGO CONVENTION art. 3(a) (“This Convention shall be applicable only to civil aircraft, and shall not be 

applicable to state aircraft.”). Consider Commission of Jurists to Consider and Report Upon the Revision of the 

Rules of Warfare, General Report, Part II: Rules of Aërial Warfare, art. 2, Feb. 19, 1923, reprinted in 32 AJIL

SUPPLEMENT: OFFICIAL DOCUMENTS 12, 12 (1938) (“The following shall be deemed to be public aircraft: (a) 

Military aircraft. (b) Non-military aircraft exclusively employed in the public service. All other aircraft shall be 

deemed to be private aircraft.”).

54 1944 CHICAGO CONVENTION art. 3(b) (“Aircraft used in military, customs and police services shall be deemed to 

be state aircraft.”).

55 DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (“state aircraft. 

Aircraft, including U.S. military aircraft, operated by a government for sovereign, non-commercial purposes.”).

56 See, e.g., Secretary of State Cable 22631, USG Policy Regarding Status of DOD Commercial Contract Aircraft

(Mar. 10, 2010) (The U.S. Government “has consistently taken the position that Department of Defense (DoD) 

commercial contract aircraft and other USG contract aircraft are not state aircraft unless the particular aircraft is 

specifically designated as such by the USG. The normal practice of the USG is not to designate contract aircraft as 

state aircraft.”); 2007 NWP 1-14M ¶2.4.3 (“Auxiliary aircraft are State aircraft, other than military aircraft, that are 

owned by or under the exclusive control of the armed forces. Civilian owned and operated aircraft, the full capacity 

of which has been contracted by the DOD and used in the military service of the United States, qualify as ‘auxiliary 

aircraft’ if they are designated as ‘State aircraft’ by the United States. In those circumstances they too enjoy 

sovereign immunity from foreign search and inspection. As a matter of policy, however, the United States normally 

does not designate Air Mobility Command-charter aircraft as State aircraft.”); Department of the Army, Office of 

the Judge Advocate General, International and Operations Law: Payment of Fees Charged to State Aircraft, 21 

THE REPORTER 19, 20 (June 1994) (“The US government consistently has taken the position that Department of 

Defense contract aircraft do not qualify as state aircraft unless the particular aircraft is specifically designated as 

such by the US government. Although many SOFAs, base rights, and other agreements grant DoD contract aircraft 

the same rights of access, exit, and freedom from landing fees and similar charges enjoyed by US military aircraft, 

such agreements do not have the effect of declaring DoD contract aircraft to be military aircraft or any form of state 

aircraft.”).

57 Refer to § 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).

58 Refer to § 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).

59 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); 14.5.2 (Diversion 

of Aircraft).
927

may also be an important factor in determining that an aircraft constitutes a military objective.60

14.3.2 Nationality of Aircraft. State aircraft possess the nationality of the State that 

operates them. Civil aircraft possess the nationality of the State in which they are registered.

61

The nationality of an aircraft may be important in assessing whether it constitutes an 

enemy or neutral aircraft.62

14.3.3 Status of Military Aircraft. Military aircraft may be understood as aircraft that are 

designated as such by a State that operates them. The United States has not ratified a treaty that 

requires certain qualifications before an aircraft may be designated as military aircraft.

In general, military aircraft are operated by commissioned units of the armed forces of a 

State, bearing the military markings of that State, and commanded by a member of the armed 

forces of that State. 

In addition to combat aircraft such as fighters and bombers, other types of aircraft 

operated by the armed forces of a State may also be designated as military aircraft, such as 

transport, reconnaissance, and meteorological aircraft. Unmanned aircraft, i.e., aircraft that are 

remotely piloted or controlled, may also be designated as military aircraft.

14.3.3.1 Military Aircraft – Rights and Liabilities. Of all aircraft, only military 

aircraft are entitled to engage in attacks in armed conflict.

63 Likewise, during armed conflict, 

enemy military aircraft generally constitute military objectives and, thus, may be made the object 

of attack, whether in the air or on the ground.64 There may be exceptions to the general rule that 

enemy military aircraft are liable to being made the object of attack, such as in the case of enemy 

military medical aircraft or enemy military aircraft that have surrendered.65

 60 Refer to § 14.8.3 (Attacks Against Civil Aircraft); § 5.6 (Military Objectives).

61 1944 CHICAGO CONVENTION art. 17 (“Aircraft have the nationality of the State in which they are registered.”).

62 Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked 

Civil Aircraft).

63 See, e.g., 2013 GERMAN MANUAL ¶1103 (“Only military aircraft are entitled to exercise belligerent rights and use 

military force in fighting military objectives of an adversary (14 13, 16 para.1).”); 2006 AUSTRALIAN MANUAL ¶8-

14 (“[O]nly military aircraft can exercise the combat rights of a belligerent. Examples of such rights include 

attacking military objectives and overflying enemy territory.”); 2004 UK MANUAL ¶12.34 (“Only military aircraft 

may carry out attacks.”); 2001 CANADIAN MANUAL ¶704(3) (“Civil aircraft and state aircraft that are not military 

aircraft (for example, police or customs officials) may not engage in hostilities ... .”); 1976 AIR FORCE PAMPHLET

110-31 ¶2-6d (“Only military aircraft may exercise such rights of belligerents as attacking and destroying military 

objectives or transporting troops in the adversary’s national airspace or behind its lines.”). Consider Commission of 

Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Aërial 

Warfare, art. 16, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 19 (1938) (“No 

aircraft other than a belligerent military aircraft shall engage in hostilities in any form.”).

64 Refer to § 5.6.4.1 (Military Equipment and Bases).

65 Refer to § 7.14 (Military Medical Aircraft); § 14.8.2 (Protection of Persons Who Surrender or Who Are Otherwise 

Hors De Combat on Board Enemy Aircraft).
928

Belligerent military aircraft generally may not enter neutral airspace.66

As State aircraft, military aircraft, like warships, are customarily accorded certain 

privileges and immunities by friendly foreign States.67

14.3.3.2 Military Aircraft – Markings. Military aircraft are customarily marked to 

signify both their nationality and military character.

68 Markings may help distinguish friend 

from foe and help preclude misidentification of aircraft as neutral or as civil.

69 However, 

circumstances may exist where such markings are superfluous.70

A single marking may be used to signify both an aircraft’s nationality and its military 

character.71

 66 Refer to § 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).

67 DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), ¶4 (Dec. 28, 2009) (“b. Consistent with 

U.S. Government policy, DoD aircraft shall not be subject to air navigation, overflight, or similar fees for transit 

through the national airspace of another country or through Flight Information Regions in international airspace. 

This policy is based upon the unique status of state aircraft, including U.S. military aircraft, in international law as 

instruments of a sovereign, and is consistent with international custom and practice. ... c. DoD aircraft shall not be 

subject to search, seizure, and inspection (including customs, safety, and agriculture inspections) or any other 

exercise of jurisdiction by a foreign government over such aircraft, or the personnel, equipment, or cargo on board. 

DoD aircraft commanders shall not consent to the exercise of jurisdiction by foreign government authorities over 

U.S. military aircraft, except at the direction of the appropriate DoD Component headquarters.”). Consider

Convention Relating to the Regulation of Aerial Navigation, art. 32, Oct. 13, 1919, 11 LNTS 173, 195 (“No military 

aircraft of a contracting State shall fly over the territory of another contracting State nor land thereon without special 

authorisation. In case of such authorisation the military aircraft shall enjoy, in principle, in the absence of special 

stipulation, the privileges which are customarily accorded to foreign ships of war. A military aircraft which is 

forced to land or which is requested or summoned to land shall by reason thereof acquire no right to the privileges 

referred to in the above paragraph.”); John Cobb Cooper, A Study on the Legal Status of Aircraft, in IVAN A.

VLASIC, EXPLORATIONS IN AEROSPACE LAW 205, 243 (1968) (“It is felt that the rule stated in the Paris Convention 

that aircraft engaged in military services should, in the absence of stipulation to the contrary, be given the privileges 

of foreign warships when in national port is sound and may be considered as still part of international air law even 

though not restated in the Chicago Convention.”).

68 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 3, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 13 (1938) (“A military aircraft shall bear an external mark indicating its nationality and military 

character.”).

69 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 82 (“Again and again one finds the fighting airmen of 

1914-18 stating in their memoirs or diaries that they have been saved from attacking a friend or have been put on 

guard against a foe by seeing the distinguishing marks on the wings of the machines.”).

70 1976 AIR FORCE PAMPHLET 110-31 ¶7-4 (“Military aircraft, as entities of combat in aerial warfare, are also 

required to be marked with appropriate signs of their nationality and military character. However, circumstances 

may exist where such markings are superfluous and are not required. An example is when no other aircraft except 

those belonging to a single state are flown. Such markings serve to distinguish friend from foe and serve to preclude 

misidentification as neutral or civilian aircraft. Accordingly, military aircraft may not bear markings of the enemy 

or markings of neutral aircraft while engaging in combat. Combatant markings should be prominently affixed to the 

exterior aircraft surfaces and be recognizable at a reasonable distance from any direction.”).

71 For example, 2004 UK MANUAL ¶12.10.4 (“In most air forces, the same marking indicates both nationality and 

military character, for example, the Royal Air Force roundel.”).
929

14.3.3.3 Military Aircraft – Command and Crew. Military aircraft are 

commanded by members of the armed forces of that State.72 The crew, however, may include 

civilian members, and such personnel are expressly entitled to POW status under the GPW.

73

14.4 STATUS OF AIRCREW ON MILITARY AIRCRAFT

14.4.1 Military Aircrew. Aircrew who are members of the armed forces of a State have 

the rights, duties, and liabilities of combatants.74 For example, they are entitled to POW status if 

they fall into the power of the enemy during international armed conflict, and they have legal 

immunity from domestic law for acts done under military authority and in accordance with the 

law of war.

14.4.1.1 Wearing of Uniform by Military Aircrew. Military aircrew are required 

to distinguish themselves from the civilian population in the same manner as other combatants.75 

The wearing of flying clothing distinctive to the armed forces satisfies this requirement. In 

particular, military aircrew should wear military uniforms (including distinctive flying clothing) 

in case they become separated from the aircraft.76

14.4.2 Civilian Members of Military Aircrew and Other Persons Authorized to 

Accompany the Armed Forces. Civilian members of military aircrew fall into the category of 

persons authorized to accompany the armed forces.77 Other civilians who are present on military 

aircraft or who support the operations of military aircraft may also fall into the category of 

persons authorized to accompany the armed forces, provided they have received such

authorization.

As persons authorized to accompany the armed forces, civilian members of military 

aircrews are entitled to POW status if they fall into the power of the enemy during international 

armed conflict, and they have legal immunity from the enemy’s domestic law for providing 

authorized support services to the armed forces. Civilians who work in or on military objectives, 

such as military aircraft, assume a certain risk of harm from attacks against military objectives.78

14.4.3 Downed Aircrew. There are a number of law of war issues related to downed 

 72 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 18 (1938) (“A military aircraft shall be under the command of a person duly commissioned or 

enlisted in the military service of the state;”).

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

74 Refer to § 4.5 (Armed Forces of a State); § 4.4 (Rights, Duties, and Liabilities of Combatants).

75 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to 

Distinguish Themselves From the Civilian Population).

76 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 15, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 18 (1938) (“Members of the crew of a military aircraft shall wear a fixed distinctive emblem of 

such character as to be recognizable at a distance in case they become separated from their aircraft.”).

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

78 Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).
930

aircrew.

14.4.3.1 Protection of Aircrew While Parachuting From an Aircraft in Distress. 

In general, aircrew parachuting from an aircraft in distress are treated as though they are hors de 

combat, i.e., they must not be made the object of attack.79 Aircrew parachuting from an aircraft 

in distress who engage in hostile acts or attempt to evade capture, either while descending or 

after reaching the ground, forfeit any protection from being made the object of attack.80

14.4.3.2 Protection of Downed Aircrew at Sea. Downed aircrew at sea are 

generally to be regarded as shipwrecked, as the definition of shipwrecked includes forced 

landings at sea by or from aircraft.81 As shipwrecked persons, they must not be made the object 

of attack, and there are obligations to search for and collect them.82 

14.4.3.3 Rescue of Downed Aircrew. The rescue of downed aircrew to prevent 

their capture by the adversary is generally regarded as a combat activity that enemy military 

forces may legitimately oppose.83 Medical personnel, ships, or aircraft engaged in the rescue of 

downed aircrew must not hamper or interfere with the efforts of opposing military forces to 

capture downed aircrew or they will forfeit protection from being made the object of attack as a 

result.

84

The United States has understood the prohibition against the use of riot control agents as 

a method of warfare not to prohibit the use of riot control agents to rescue downed aircrew in 

certain circumstances.

85

14.4.3.4 Downed Aircrew – Evasion From, and Capture by, the Enemy. Downed 

aircrew may use enemy uniforms to evade capture by the enemy, but, in some cases, such use 

may risk liability to treatment as a spy.

86 Likewise, downed aircrew may use civilian clothes to 

evade capture by the enemy.87

If downed aircrew fall into the power of the enemy during international armed conflict, 

 79 Refer to § 5.9.5 (Persons Parachuting From an Aircraft in Distress).

80 Refer to § 5.9.5.1 (No Hostile Acts or Attempts to Evade Capture).

81 Refer to § 7.3.1.2 (Shipwrecked).

82 Refer to § 7.3.3 (Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked); § 7.4.1 (GWSSea Obligation Regarding the Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, 

and Dead).

83 2004 UK MANUAL ¶12.70.1 (“The use of, for example, military assets to rescue aircrew who have been ‘downed’ 

on territory under the control of the enemy is a combat activity. It is therefore legitimate for an enemy in such 

circumstances to attack the rescuers or by some other means to impede or prevent the rescue activity.”).

84 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties); § 7.12.2.3 (No Hampering the Movement of 

Combatants ); § 7.14.2.2 (Search, Rescue, or Other Recovery Excluded).

85 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

86 Refer to § 5.23.1.4 (Use of Enemy Uniforms to Evade Capture or Escape).

87 Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited). Compare § 9.25.2.2 (Only 

Disciplinary Punishments in Respect of an Act of Escape).
931

they are entitled to POW status.88 Downed aircrew remain entitled to POW status even if they 

unsuccessfully attempt to escape capture by enemy forces or if they attack enemy forces upon 

reaching the ground. As POWs, downed aircrew are entitled to protection from violence from 

the civilian population and others.

89

14.4.3.5 Downed Aircrew in Neutral Territory. Military aircrew forced to land in 

neutral territory due to navigational failure, combat damage, mechanical failure, or other 

emergencies are subject to internment by the neutral State for the duration of the conflict.90

14.5 MEASURES SHORT OF ATTACK: INTERCEPTION, DIVERSION, AND CAPTURE

14.5.1 Interception. During armed conflict, a party may choose to intercept an aircraft

through a variety of ways, including closing to visual range or to a distance where the target 

aircraft is within the range of weapons systems. Interception of civil aircraft that are not military 

objectives should be exercised with due regard for the safety of such aircraft.91

14.5.1.1 Purposes for Conducting Interception. Interception may have a variety 

of purposes, including, for example: 

• to assist in the obligation to distinguish between military objectives and civilian objects 

and the obligation to protect the civilian population,

92 such as by

o warning a civil aircraft to refrain from entering an area of active operations; or

o helping identify whether the aircraft constitutes a military objective;

• as part of the belligerent right of visit and search, including the belligerent right to 

enforce a blockade,93 such as by

o facilitating identification of an aircraft (e.g., enemy or neutral);

o forcing an aircraft to divert and land at a specific airfield for search or capture; or

• to be in a position to attack the aircraft.

14.5.1.2 Airspace Where Interception May Be Conducted. As a general rule, 

belligerent military aircraft may not intercept aircraft in neutral airspace.94

 88 Refer to § 9.3 (POW Status).

89 Refer to § 9.5.2.2 (Protection Against Violence by the Civilian Population or Others).

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

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

92 Refer to § 2.5 (Distinction).

93 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

94 Refer to § 15.10 (Neutral Airspace).
932

In addition, interception may not be conducted during passage through neutral 

international straits or neutral archipelagic sea lanes.95

14.5.2 Diversion of Aircraft. Diversion and search of civil aircraft may be conducted

outside neutral airspace as part of the belligerent right of visit and search (e.g., to help determine 

whether aircraft are liable to capture for carriage of contraband or for breach of blockade).

96

Interference with civil aircraft of neutral States must be justified by military necessity.

If, upon interception outside of neutral airspace, reasonable grounds exist for suspecting 

that the intercepted civil aircraft, its cargo, or its personnel are liable to capture,97 then it may be 

directed to proceed to a belligerent airfield that is both reasonably accessible and suitable for the 

type of aircraft involved for visit and search.

98 Should such an airfield not be available, the 

intercepted civil aircraft may be diverted from its declared destination.99

Certain aircraft are exempt from the belligerent right to divert aircraft for purposes of 

visit and search: (1) neutral military aircraft; and (2) neutral civil aircraft accompanied by 

neutral military aircraft of the same nationality.100

14.5.2.1 Failure to Comply by Civil Aircraft. An enemy civil aircraft that 

persistently fails to comply with military instructions becomes a military objective subject to 

attack.101

Failure to comply with military instructions from intercepting aircraft does not in itself 

render a neutral or non-belligerent civil aircraft a military objective. However, it may provide 

strong evidence that the civil aircraft is in fact being used for a military or hostile purpose.

14.5.3 Capture of Aircraft and Goods on Board Aircraft. Enemy civil aircraft and goods 

 95 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea 

Lanes).

96 Refer to § 15.13.4.3 (Visit and Search of Civil Aircraft by Military Aircraft).

97 Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

98 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 50, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 44 (1938) (“Belligerent military aircraft have the right to order public non-military and private 

aircraft to alight in or proceed for visit and search to a suitable locality reasonably accessible. Refusal, after 

warning, to obey such orders to alight or to proceed to such a locality for examination exposes an aircraft to the risk 

of being fired upon.”).

99 2007 NWP 1-14M ¶7.6.3 (“If, upon interception outside of neutral airspace, reasonable grounds exist for 

suspecting that the intercepted civilian aircraft is carrying contraband cargo or that, despite its neutral markings, it is, 

in fact, enemy, it may be directed to proceed for visit and search to a belligerent airfield that is both reasonably 

accessible and suitable for the type of aircraft involved. Should such an airfield not be available, the intercepted 

civilian aircraft may be diverted from its declared destination.”).

100 Refer to § 15.13.2 (Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search).

101 Refer to § 14.8.3.2 (Forfeiture of Protection From Being Made the Object of Attack During Armed Conflict).
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on board such aircraft may be captured outside neutral airspace.102 

Any enemy State aircraft (including military, law enforcement, and customs aircraft), as 

public movable property, is subject to capture as war booty with ownership passing immediately 

to the captor government.103 Similarly, prize procedure is not used for captured enemy 

warships.104

Neutral civil aircraft engaged in certain activity in violation of their neutral status are 

liable to capture.105 Even if not liable to capture, neutral civil aircraft are subject to visit and 

search.106

14.6 BELLIGERENT CONTROL OF AVIATION IN THE IMMEDIATE VICINITY OF HOSTILITIES

Belligerents may prohibit or establish special restrictions upon flight activities in the 

immediate vicinity of hostilities to prevent such activities from jeopardizing military operations. 

In some cases, this right may be distinct from a belligerent State’s right to establish airspace

zones during armed conflict.

107

As with the belligerent right to control the immediate area of naval operations, this right 

is based on a belligerent State’s right to ensure the security of its forces and its right to conduct 

hostilities without interference from neutrals.

108 However, belligerent control of aviation in the 

immediate vicinity of hostilities may be applicable in the national airspace of belligerents.109

 102 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 49, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 40 (1938) (“Private aircraft are liable to visit and search and to capture by belligerent military 

aircraft.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 52, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 45 (1938) (“Enemy private aircraft are liable to capture in all circumstances.”).

103 Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)). Consider Commission of Jurists to 

Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Aërial Warfare, 

art. 32, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 30 (1938) (“Enemy public 

aircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize 

proceedings.”); Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the 

HPCR Manual on International Law Applicable to Air and Missile Warfare, 275 (U.I.136(a)) (2010) (“Enemy 

military, law-enforcement and customs aircraft are booty of war. Prize procedures do not apply to captured enemy 

military aircraft and other State aircraft, inasmuch as their ownership immediately passes to the captor government 

by virtue of capture.”).

104 Refer to § 13.4.3 (Captured Enemy Warships – No Prize Procedure).

105 Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

106 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

107 Refer to § 14.7 (Airspace Zones).

108 Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

109 Refer to § 14.2.1.1 (National Airspace).
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14.7 AIRSPACE ZONES

During armed conflict, States may establish airspace zones and associated procedures 

intended to prohibit aircraft from entering or flying in designated areas, including areas in 

international airspace. Such zones may be established for a variety of purposes, including to 

decrease the risk of inadvertent attack of civil or neutral aircraft, to control the scope of the 

conflict, or to enhance the predictability and effectiveness of ongoing operations.

The legal rules that apply to the establishment and enforcement of a zone are discussed in 

connection with the establishment and enforcement of maritime zones.110

In some cases, such as with Air Defense Identification Zones, the zone may be 

established during peacetime.111

14.8 ATTACKS AGAINST MILITARY OBJECTIVES IN THE AIR

The general rules on conducting attacks also apply to attacks against military objectives 

in the air.112 In general, enemy military aircraft may be made the object of attack.

14.8.1 Medical Aircraft. Specific rules found in the 1949 Geneva Conventions address

the protection of aircraft that are engaged exclusively in specified medical functions.113

14.8.2 Protection of Persons Who Surrender or Who Are Otherwise Hors De Combat on 

Board Enemy Aircraft. The general rules on the protection of persons who are hors de combat

(such as those who have been incapacitated and those who have effectively surrendered) also 

apply to persons on board enemy aircraft.

114

Although the capture of enemy military aircraft and aircrew may be of significant 

intelligence value, there are often significant practical obstacles to identifying when persons on 

board an aircraft are hors de combat and to accepting their surrender. Despite these practical 

difficulties, if surrender is offered in good faith and circumstances do not preclude enforcement, 

then surrender must be respected.115 Persons who are conducting attacks against enemy military 

aircraft must assess in good faith whether surrender is offered in good faith and can feasibly be 

accepted based on the information that is available to them at the time.

116

14.8.2.1 Difficulty in Identifying Persons on Board Aircraft as Hors De Combat. 

As a practical matter, it may be quite difficult to establish that persons on board enemy aircraft 

 110 Refer to § 13.9 (Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and Safety).

111 Refer to § 14.2.4 (Air Defense Identification Zone (ADIZ)).

112 Refer to § 5.4.2 (Overview of Rules in Conducting Attacks).

113 Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

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

115 1976 AIR FORCE PAMPHLET 110-31 ¶4-2d (“If surrender is offered in good faith so that circumstances do not 

preclude enforcement, then surrender must be respected.”).

116 Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).
935

are hors de combat and may no longer be made the object of attack.

First, it is very difficult, if not impossible, to assess whether the enemy aircraft has 

actually been disabled and does not pose any threat. For example, aircraft may feign symptoms 

of distress to evade enemy attacks.

117 Moreover, even if an aircraft has been disabled in some 

respects, the aircraft may not have lost its means of combat, and weapons on board the aircraft 

may still pose a threat.

As a practical matter, it may also be difficult for the pilot of an attacking aircraft to know 

when an adversary is attempting to surrender or has surrendered. Broadcasting on the 

international GUARD frequency (aircraft emergency frequency), rocking the aircraft’s wings, 

lowering the landing gear, and other signals (such as the flashing of navigational lights) are 

sometimes cited as indications of a pilot or aircrew’s desire to surrender, but they are not 

recognized in law as signals of surrender. Consequently, absent an explicit message of offering 

surrender, an intention to surrender cannot be presumed from the conduct of the aircraft.

14.8.2.2 Feasibility of Accepting Surrender by Enemy Aircraft. In many 

circumstances, it may not be feasible to accept the surrender of enemy aircraft.118 For example,

it may not be possible to enforce surrender when the engagement takes place over enemy 

territory.119

14.8.3 Attacks Against Civil Aircraft. During armed conflict, civil aircraft are generally 

considered civilian objects, but may be made the object of attack, outside neutral territory, if they 

constitute a military objective.

14.8.3.1 Protection of Civil Aircraft in Peacetime. Under customary international 

law applicable during peacetime, States have an obligation to refrain from resorting to the use of 

weapons against civil aircraft in flight.120 However, this obligation does not modify in any way 

 117 Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).

118 1976 AIR FORCE PAMPHLET 110-31 ¶4-2d (“Surrenders in air combat are generally not offered. If surrender is 

offered, usually no way exists to enforce the surrender.”).

119 2004 UK MANUAL ¶12.64 (“Although it is forbidden to kill or wound an enemy who, having laid down his arms, 

or having no longer means of defence, has surrendered at discretion in air-to-air combat, surrender is usually 

impracticable and occurs very infrequently.”); 2004 UK MANUAL ¶12.64.1 (“In the special circumstances of air-toair combat the continuation of an attack after an indication by the opponent of a wish to surrender is not inconsistent 

with the rule in paragraph 12.64, as the enemy pilot who remains in his aircraft cannot be said to have ‘laid down his 

arms’ or to have ‘no longer a means of defence’. However, if the surrender is offered in good faith and in 

circumstances that do not prevent enforcement, for example, when the engagement has not taken place over enemy 

territory, it must be respected and accepted.”).

120 See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down 

Civil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 149-

50 (“[T]he United States argued that the Soviet Union had violated both Article 3(d) and customary international 

legal norms in shooting down KAL 007. ... We understand that the United States has not yet ratified Article 3 bis. 

There is, however, support for the view that the principle it announced is declaratory of customary international 

law.”); U.N. SECURITY COUNCIL RESOLUTION 1067, U.N. Doc. S/RES/1067 (1996) (“6. Condemns the use of 

weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rules 

of customary international law as codified in article 3 bis of the Chicago Convention, ... .”). Consider Protocol 

Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), May 10, 1984, 2122 
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the rights and obligations of States set forth in the Charter of the United Nations.121 Thus, a 

State’s use of force against civil aircraft in the exercise of the inherent right of self-defense 

would be permitted.

14.8.3.2 Forfeiture of Protection From Being Made the Object of Attack During 

Armed Conflict. Civil aircraft may be made the object of attack, outside neutral territory, if the 

aircraft constitutes a military objective.122 

In particular, civil aircraft forfeit any protection from being made the object of attack if 

they acquire the character of enemy military aircraft by:

• taking a direct part in the hostilities on the side of the enemy; or

• acting in any capacity as a naval or military auxiliary to the enemy’s armed forces.123

In addition, enemy civil aircraft forfeit protection from being made the object of 

attack:

124

• when persistently refusing to comply with directions from intercepting aircraft;

125

• when flying under convoy of enemy warships or military aircraft;

• when armed with systems or weapons beyond that required for self-defense against 

 

UNTS 346-47 (“The contracting States recognize that every State must refrain from resorting to the use of weapons 

against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft 

must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations 

of States set forth in the Charter of the United Nations.”).

121 Consider Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), 

May 10, 1984, 2122 UNTS 346-47 (“The contracting States recognize that every State must refrain from resorting to 

the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and 

the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the 

rights and obligations of States set forth in the Charter of the United Nations.”) (emphasis added). Compare

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

122 Refer to § 5.6 (Military Objectives).

123 Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

124 2007 NWP 1-14M ¶8.8 (“Enemy merchant vessels and civil aircraft may be attacked and destroyed by military 

aircraft only under the following circumstances: 1. When persistently refusing to comply with directions from the 

intercepting aircraft 2. When sailing under convoy of enemy warships or military aircraft 3. When armed with 

systems or weapons beyond that required for self-defense against terrorism, piracy, or like threats 4. When 

incorporated into or assisting in any way the enemy’s military intelligence system 5. When acting in any capacity as 

a naval or military auxiliary to an enemy’s armed forces 6. When otherwise integrated into the enemy’s war-fighting 

or war-sustaining effort.”); 1989 NWP 9 ¶8.4 (“Enemy merchant vessels and civil aircraft may be attacked and 

destroyed by military aircraft only under the following circumstances: 1. When refusing to comply with directions 

from the intercepting aircraft 2. When assisting in any way the enemy’s military intelligence system or acting in any 

capacity as auxiliaries to the enemy’s armed forces 3. When sailing under convoy of enemy warships, escorted by 

enemy military aircraft, or armed 4. When otherwise integrated into the enemy’s war-fighting or war-sustaining 

effort.”).

125 Refer to § 14.5.2.1 (Failure to Comply by Civil Aircraft).
937

terrorism, piracy, or like threats;

• when incorporated into or assisting the enemy’s military intelligence system;126 or

• when otherwise integrated into the enemy’s war-fighting or war-sustaining effort.

14.8.3.3 Attack of Civilian Passenger Aircraft. If a civilian passenger aircraft 

constitutes a military objective and thus is liable to attack, any attack must comply with other 

applicable rules related to attacks.127

In particular, attacks against civilian passenger aircraft engaged in passenger service must 

comply with the requirement that the expected loss of life or injury to civilians, and damage to 

civilian objects incidental to the attack, must not be excessive in relation to the concrete and 

direct military advantage expected to be gained.128

14.9 AIR ATTACKS AGAINST MILITARY OBJECTIVES ON THE GROUND

The general rules on conducting attacks also apply to air attacks against military 

objectives on the ground.129

14.9.1 Prohibition Against Bombardment of Undefended Cities, Towns, and Villages. 

The aerial bombardment of towns, villages, dwellings, or buildings that are undefended is 

prohibited.130 The phrase “by whatever means” was inserted in the Hague IV Regulations to 

clarify that bombing attacks by air were included in this rule.

131

An “undefended” city, town, or village in this sense is a term of art. For example, a city 

may only be declared “undefended” if it is open for immediate physical occupation by opposing 

military ground forces.

132

14.9.2 Selection of Weapons in Conducting Attacks From the Air Against Ground 

Military Objectives. It may be the case that commanders will have a variety of weapons with 

which to conduct a potential aerial bombardment. 

Certain weapons are prohibited per se, and it is specifically provided that feasible 

 126 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part I: Rules for the Control of Radio in Time of War, art. 6, Feb. 19, 1923, reprinted in 32 AJIL

SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (“1. The transmission by radio by a vessel or an aircraft, whether 

enemy or neutral, when on or over the high seas of military intelligence for the immediate use of a belligerent is to 

be deemed a hostile act and will render the vessel or aircraft liable to be fired upon.”).

127 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

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

129 Refer to § 5.4.2 (Overview of Rules in Conducting Attacks).

130 Refer to § 5.15 (Undefended Cities, Towns, and Villages).

131 Refer to § 5.15.2 (“By Whatever Means”).

132 Refer to § 5.15.3 (Declaration of a City as “Undefended”).
938

precautions be taken in connection with certain weapons.133 It must be emphasized, however, 

that the selection of the appropriate weapon for conducting an aerial bombardment remains 

primarily a military judgment rather than a legal one. In particular, there is no law of war 

requirement to use precision-guided weapons when non-precision-guided weapons may be used 

in compliance with the law of war.134 

Commanders have a general obligation to take feasible precautions in planning and 

conducting attacks in order to reduce the risk of harm to the civilian population.135 The selection 

of weapons may be among the available precautions that a commander could take in order to 

reduce the risk of harm to the civilian population.

14.9.3 Protection of Enemy Ground Forces Who Are Hors de Combat. When aircrew or 

aircraft operators assess that an enemy combatant has been placed hors de combat, they must 

refrain from making such persons the object of attack.136 

In order to place a person hors de combat, the person’s surrender must be (1) genuine; (2) 

clear and unconditional; and (3) under circumstances where it is feasible for the opposing party 

to accept the surrender.137

In many cases, it would not be feasible for a party that is conducting air operations to 

accept the surrender of an enemy person. In some cases, however, it may be appropriate, in 

order to facilitate such surrender, to communicate steps for enemy units to take to communicate 

clearly their intention to surrender.138

14.9.3.1 Difficulty in Identifying Persons Placed Hors De Combat. The 

identification by aircraft of an enemy combatant on the ground placed hors de combat may pose 

a particular challenge. It may be difficult for aircrew or aircraft operators to determine whether 

an enemy combatant is dead, injured, merely taking cover, or feigning injury or surrender to 

 133 Refer to § 6.4 (Prohibited Weapons); § 5.2.3.4 (Requirements to Take Precautions Regarding Specific Weapons).

134 Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

135 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).

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

137 Refer to § 5.9.3 (Persons Who Have Surrendered).

138 Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 561, 

566-67 (2003) (“In August 2002, I met with Commander Kenneth O’Rourke, the Chief of Operational Law at 

CENTCOM, and Lieutenant Commander Gregory Bart, the Special Operations Command Central (‘SOCCENT’) 

Staff Judge Advocate to develop legally supportable concepts that would achieve the commander’s intent to either 

have Iraqi units assist Coalition forces or indicate a desire not to fight and remain in place, preferably in their 

barracks. ... Consequently, we sketched an outline for an operational plan to encourage units to capitulate. 

Coalition forces would contact Iraqi units through various means including leaflet drops, radio broadcasts, and 

surrogates who would inform the commander of his opportunity to surrender with honor and preserve his unit. Iraqi 

units would receive these messages shortly before the air campaign started to give them time to perform the required 

actions, but not so much time that they would be subject to regime reprisals. If the unit performed certain 

observable actions, such as forming their vehicles in a square, then Special Forces would approach the unit and offer

articles of capitulation for the surrender of the unit.”).
939

avoid attack.139 On the other hand, it may be difficult for enemy combatants on the ground to 

communicate clearly to aircraft that they wish genuinely to surrender unconditionally or that they 

have been incapacitated.

Aircrew or aircraft operators must assess in good faith whether persons have been placed 

hors de combat based on the information that is available to them at the time.140

14.9.3.2 Feasibility of Air Units to Accept the Surrender of Ground Forces. For a 

communication of surrender to place a person hors de combat, the person must make the 

surrender under circumstances where it is feasible for the opposing party to accept the 

surrender.141 For example, it must be possible for the opposing party to take that person into 

custody.142

In many cases, it would not be feasible for the aircraft to land and take the person into 

custody or for nearby ground forces to take the person into custody.143 

 139 See SPAIGHT, AIR POWER AND WAR RIGHTS 132 (“In the second world war also there were one or two instances 

in which ground forces showed the white flag to aircraft. ... Other circumstances are conceivable in which there 

could be no assurance that the display of a white flag was not a ruse to enable the enemy troops to escape after the 

immediate danger was past. In such circumstances it could he [sic] held that the airmen were under no obligation to 

discontinue their attack.”).

140 Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

141 Refer to § 5.9.3.3 (Under Circumstances in Which It Is Feasible to Accept).

142 For example, FINAL REPORT ON THE PERSIAN GULF WAR 381 (“During this attack, the two companies of 3/1 

Attack Helicopter Battalion encountered minimal resistance in the form of T-55 tanks and BMPs, which they 

destroyed. The surprising aspect of this operation was that it was the first of many instances where hundreds of Iraqi 

soldiers ran out of their bunkers and attempted to surrender after seeing Army helicopters in their midst. Without 

the means to hold them, the aeroscout pilots played ‘cowboys’ to the ‘herd’ of Iraqi soldiers, hovering them into a 

tight circle until the lead ground elements of the Division's 1st Brigade arrived and secured them.”); FINAL REPORT 

ON THE PERSIAN GULF WAR 212 (“In addition to direct support of NGFS missions, UAVs also were used to gather 

intelligence on Faylaka Island when national sensors were not available and weather prevented aircraft 

reconnaissance. Over Faylaka Island, USS Wisconsin’s UAV recorded hundreds of Iraqi soldiers waving white flags 

– the first-ever surrender of enemy troops to an unmanned aircraft. After the cease-fire, UAVs monitored the 

coastline and outlying islands in reconnaissance support of occupying Coalition forces. Because UAVs were under 

direct tactical control of combat forces, they could respond quickly in dynamic situations. On one occasion, USS 

Wisconsin’s UAV located two Iraqi patrol boats, which were sunk by aircraft directed to investigate.”).

143 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (“3. 

Facts: An armed soldier sees you and throws his hands up to surrender. Response: Take the soldier prisoner, and 

treat as an EPW. (Note: aircraft are not in the position to accept surrender, in the foregoing scenario, a 101st ABD 

aircraft could fire upon the enemy soldier).”); SPAIGHT, AIR POWER AND WAR RIGHTS 131-32 (“Usually it is 

impossible for attacking airmen to take ground troops prisoners, and such a situation as that described by Lieut.-Col. 

Tennant as arising in Iraq in February, 1917, is probably more typical and normal than the cases quoted above. 

Lieut.-Col. Tennant describes how in the Turkish retreat towards Azizieh, after the forcing by General Maude’s 

army of the Shumran Bend in the Tigris on 23 February, 1917, ‘many of the waggons had hoisted the white flag,’ 

while some of the flying Turks ‘waved in token of surrender,’ when the British aeroplanes attacked them with 

machine-guns. ‘Flying along about 10 feet from the road I mowed down seven with one burst of machine-gun fire.’ 

In such circumstances it is impossible to recognise the white flag. To try to do so would be to sacrifice the 

advantage of the destruction of a routed and demoralised foe.”).
940

14.10 INTERNATIONAL LAW AND WARFARE IN OUTER SPACE

14.10.1 Classification of Outer Space. Outer space is governed by a separate legal 

regime than that for airspace.144

Outer space may be viewed as analogous to the high seas in certain respects.

145 For 

example, no State may claim sovereignty over outer space.146 In addition, the space systems of 

all nations have rights of passage through space without interference.147

14.10.2 Application of International Law to Activities in Space.

14.10.2.1 Treaties Specifically Addressing Space Activities. The United States is 

a Party to certain treaties that address space activities. The Treaty on Principles Governing the 

Activities of States in the Exploration and Use of Outer Space, including the Moon and Other 

Celestial Bodies (Outer Space Treaty), imposes restrictions on certain military operations in 

outer space (i.e., it does not exempt military spacecraft or military space activities from its 

purview).

148 The Outer Space Treaty provides for State responsibility for the activities of nongovernmental entities in outer space, including the moon and other celestial bodies.

149

Other treaties that specifically address space activities include:

• Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of 

 144 Refer to § 14.2.2 (Vertical Boundary Between Airspace and Outer Space).

145 Arthur J. Goldberg, U.S. Ambassador to the United Nations, Treaty on Outer Space: Hearings Before the 

Committee on Foreign Relations, U.S. Senate, 90th Congress, First Session, 63 (Mar. 13, 1967) (“This is an attempt, 

once we leave airspace, and get to outer space, however you define the limits, this is an attempt to create in outer 

space the closest analogy and that is the high seas.”).

146 OUTER SPACE TREATY art. II (“Outer space, including the moon and other celestial bodies, is not subject to 

national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”).

147 See, e.g., OUTER SPACE TREATY art. I (“Outer space, including the moon and other celestial bodies, shall be free 

for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance 

with international law, and there shall be free access to all areas of celestial bodies.”); National Space Policy of the 

United States of America, 3 (Jun. 28, 2010) (“The United States considers the space systems of all nations to have 

the rights of passage through, and conduct of operations in, space without interference. Purposeful interference with 

space systems, including supporting infrastructure, will be considered an infringement of a nation’s rights.”); 

Presidential Directive/NSC-37, National Space Policy, ¶1.d (May 11, 1978) (“The space systems of any nation are 

national property and have the right of passage through and operations in space without interference. Purposeful 

interference with operational space systems shall be viewed as an infringement upon sovereign rights.”).

148 Refer to § 14.10.3 (Outer Space Treaty Restrictions on Military Activities).

149 OUTER SPACE TREATY art. VI (“States Parties to the Treaty shall bear international responsibility for national 

activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by 

governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in 

conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer 

space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the 

appropriate State Party to the Treaty.”).
941

Objects Launched into Outer Space;150

• Convention on International Liability for Damage Caused by Space Objects;151 and 

• Convention on Registration of Objects Launched into Outer Space.152

Certain provisions of these treaties may not be applicable as between belligerents during 

international armed conflict.153

14.10.2.2 Application of General International Law to Activities and Use of Outer 

Space. The Outer Space Treaty reaffirms the duty of States Parties to comply with existing 

international law in carrying out activities in outer space. Article III of the Outer Space Treaty 

provides that “States Parties to the Treaty shall carry on activities in the exploration and use of 

outer space, including the moon and other celestial bodies, in accordance with international law, 

including the Charter of the United Nations, in the interest of maintaining international peace and 

security and promoting international cooperation and understanding.”154

Although existing international law, such as the Charter of the United Nations, generally 

applies to States Parties’ activities in outer space, international law that prescribes certain 

conditions for national claims of sovereignty does not apply to outer space because outer space is 

not subject to national appropriation.

155

 150 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into 

Outer Space, Apr. 22, 1968, 672 UNTS 119.

151 Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 UNTS 187.

152 Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 1023 UNTS 15.

153 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 494 (2002) (“During an international armed conflict between the two nations concerned, however, the 

law of armed conflict would apply unless it was trumped by the principle of noninterference with space systems. 

Resolution of this issue depends largely on whether the four space treaties will be considered to apply during an 

armed conflict. None of them has any specific provision that indicates whether the parties intended that the 

agreement apply in wartime. There appears to be a strong argument that the principle of noninterference established 

by these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such high 

military value that there is a strong military imperative for the adversary to be free to interfere with them, even to the 

extent of destroying the satellites in the system. As indicated in the discussion of treaty law in the introduction to 

this paper, the outcome of this debate may depend on the circumstances in which it first arises in practice.”).

154 OUTER SPACE TREATY art. III. See also Staff Report prepared for the use of the Committee on Aeronautical and 

Space Sciences, United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and 

Use of Outer Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar. 

1967) (“This article makes clear that those nations which ratify the treaty will observe international law—and this 

includes the Charter of the United Nations—in order to promote international cooperation and peace. Thus that 

body of law, which has developed on the Earth in order to bring about harmonious relations between nations and 

settle disputes without resort to violence, would become applicable to outer space, the Moon, and other celestial 

bodies.”).

155 Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate, 

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the 

Moon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar. 1967) (“An exception would be 
942

Certain treaties apply only in certain geographical locations (such as a State’s own 

territory), and thus might not create obligations applicable to a State’s activities in outer space. 

However, law of war treaties and the customary law of war are understood to regulate the 

conduct of hostilities, regardless of where they are conducted, which would include the conduct 

of hostilities in outer space. In this way, the application of the law of war to activities in outer 

space is the same as its application to activities in other environments, such as the land, sea, air, 

or cyber domains.

14.10.3 Outer Space Treaty Restrictions on Military Activities. The Outer Space Treaty 

imposes restrictions on certain military operations in outer space. 

Other treaties may also impose restrictions on military activities in outer space. For 

example, the Treaty Banning Nuclear Testing in the Atmosphere, Oceans, and Outer Space 

(Limited Test Ban Treaty) prohibits nuclear weapon test explosions in outer space.

156

14.10.3.1 Restriction on Nuclear Weapons and Other Kinds of Weapons of Mass 

Destruction in Outer Space. Article IV of the Outer Space Treaty provides that “States Parties to 

the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons 

or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or 

station such weapons in outer space in any other manner.”157

The prohibition on placing weapons of mass destruction “in orbit around the earth” refers 

only to their placement in full orbit around the Earth; thus, the Outer Space Treaty does not ban

the use of nuclear or other weapons of mass destruction that go into a fractional orbit or engage 

in suborbital flight.

158 For example, intercontinental ballistic missiles (ICBMs) will travel a 

portion of their trajectory in outer space; but because ICBMs would enter outer space only 

temporarily, their entry into outer space with nuclear warheads would not violate this 

prohibition.

159 By contrast, some arms control treaties have prohibited the production, testing, or 

 

international law which provides certain conditions for national claims of sovereignty, this exception having been 

set forth in Article II.”); OUTER SPACE TREATY art. II (“Outer space, including the moon and other celestial bodies, 

is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other 

means.”).

156 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, art. 1, Aug. 5, 1963, 

480 UNTS 43, 45 (“Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any 

nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in 

the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas;”).

157 OUTER SPACE TREATY art. IV (“States Parties to the Treaty undertake not to place in orbit around the Earth any 

objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on 

celestial bodies, or station such weapons in outer space in any other manner.”).

158 See I NANDASIRI JASENTULIYANA & ROY S. LEE, MANUAL ON SPACE LAW 13-14 (1979) (“The phrase ‘orbit 

around the earth’ in the first paragraph of this Article means that an object must be placed in a full orbit around the 

earth before it comes within the prohibition of the Treaty. Therefore an object in a fractional orbit or suborbital 

flight is not intended to be covered. This was the clear intention of the drafters of this Article.”).

159 Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate, 

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the 

Moon and Other Celestial Bodies: Analysis and Background Data, 26 (Mar. 1967) (“The treaty does not change the 

earthly situation with regard to ICBM’s, but seeks to achieve on celestial bodies a form of demilitarization which is 

deemed feasible from military and political viewpoints.”).
943

deployment of systems, including missiles, that place nuclear weapons or other weapons of mass 

destruction into either full earth orbit or a fraction of an earth orbit.160 

In addition, this rule in Article IV of the Outer Space Treaty does not establish any 

prohibitions with respect to weapons that are not weapons of mass destruction (e.g., anti-satellite 

laser weapons or other conventional weapons).

161

14.10.3.2 Restrictions on Military Activities on the Moon and Other Celestial 

Bodies. Article IV of the Outer Space Treaty places certain prohibitions on military activities on 

the moon and other celestial bodies: (1) the establishment of military bases, installations, and 

fortifications; and (2) the testing of any type of weapons; and (3) the conduct of military 

maneuvers.162

These activities are prohibited only on the moon and other celestial bodies, not in outer 

space itself. 

Article IV also recognizes the unimpeded right to: (1) the use of military personnel for

scientific research or other peaceful purposes on outer space missions; and (2) the use of any 

equipment or facility necessary for the peaceful exploration of the moon and other celestial 

bodies.163

14.10.4 General Use of Outer Space for Peaceful Purposes. The United States has 

expressed the view that outer space should be used only for peaceful purposes.164 This view is 

 160 For example, Treaty Between the United States of America and the Union of Soviet Socialist Republics on the 

Reduction and Limitation of Strategic Offensive Arms, Jul. 31, 1991, U.S.-USSR, Article V(18)(c), S. TREATY DOC.

NO. 102-20, which expired December 5, 2009.

161 David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons, 

30 MICHIGAN JOURNAL OF INTERNATIONAL LAW 1187, 1198 (2009) (“This provision does not impede the stationing 

of non-nuclear weapons (including conventional ASAT weapons) in space, nor does it affect a nuclear weapon that 

makes only a temporary transit of outer space, as when propelled by an intercontinental ballistic missile (ICBM) 

toward its target, rather than being ‘stationed’ in space.”).

162 OUTER SPACE TREATY art. IV (“The moon and other celestial bodies shall be used by all States Parties to the 

Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the 

testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.”).

163 OUTER SPACE TREATY art. IV (“The use of military personnel for scientific research or for any other peaceful 

purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the 

moon and other celestial bodies shall also not be prohibited.”).

164 See, e.g., National Space Policy of the United States of America 3 (Jun. 28, 2010) (“All nations have the right to 

explore and use space for peaceful purposes, and for the benefit of all humanity, in accordance with international 

law. Consistent with this principle, ‘peaceful purposes’ allows for space to be used for national and homeland 

security activities.”); Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th 

Sess., 1289th Mtg., U.N. Doc. A/C.1/PV.1289 (1962) (“It is the view of the United States that outer space should be 

used only for peaceful – that is non-aggressive and beneficial – purposes. The question of military activities in 

space cannot be divorced from the question of military activities on Earth. To banish these activities in both 

environments we must continue our efforts for general and complete disarmament with adequate safeguards. Until 

this is achieved, the test of any space activities must not be whether it is military or non-military, but whether or not 

it is consistent with the United Nations Charter and other obligations of law.”).
944

consistent with the Preamble to the Outer Space Treaty.165

The United States has interpreted use of outer space for “peaceful purposes” to mean 

“non-aggressive and beneficial” purposes consistent with the Charter of the United Nations and 

other international law.

166 This interpretation of “peaceful purposes” is similar to the 

interpretation given to the reservation of the high seas for “peaceful purposes” in the LOS 

Convention.

167 

For example, observation or information-gathering from satellites in space is not an act of 

aggression under the Charter of the United Nations and, thus, would be a use of space for 

peaceful purposes.168 Similarly, lawful military activities in self-defense (e.g., missile early 

warning, use of weapon systems) would be consistent with the use of space for peaceful 

purposes, but aggressive activities that violate the Charter of the United Nations would not be 

permissible.

169

Article IV of the Outer Space Treaty provides that “[t]he moon and other celestial bodies 

shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”170 Article IV 

 165 OUTER SPACE TREATY preamble (“Recognizing the common interest of all mankind in the progress of the 

exploration and use of outer space for peaceful purposes,”).

166 Senator Albert Gore, Sr., Treaty on Outer Space: Hearings Before the Committee on Foreign Relations, U.S. 

Senate, 90th Congress, First Session, 59 (Mar. 13, 1967) (“We interpret peaceful purposes as being non-aggressive 

and beneficial.”). See also Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, 

United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer 

Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 11 (Mar. 1967) (“In 

Russian, the word for ‘military’ essentially means warlike rather than pertaining to the armed services of a country; 

in the United States, ‘peaceful’ is not regarded as the opposite of ‘military’—we think of ‘peaceful’ as ‘not 

aggressive.’”); CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 22 (1982) (“The 

expression ‘peaceful purposes’ is a legal term of art. At the beginning of the Space age several views were 

advanced as to its meaning, with one view being that military activities in the space environment could not be and 

were not peaceful. The opposing position, which today has gained general acceptance, is that nonaggressive 

military uses are peaceful. Thus, ‘peaceful’ has come to mean general space activity that is beneficial to and in the 

interests of all countries.”).

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

168 See Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th Sess., 1289th 

Mtg., U.N. Doc. A/C.1/PV.1289 13 (1962) (“[A]ny nation may use space satellites for such purposes as observation 

and information-gathering. Observation from space is consistent with international law, just as is observation from 

the high seas.”); Report by the Committee on Satellite Reconnaissance Policy, attached to Jul. 2, 1962 memorandum 

from Secretary Rusk to President Kennedy, excerpted in XXV FOREIGN RELATIONS OF THE UNITED STATES (1961-

1963), 951-59 (2001) (“(b) It is well established that areas subject to the jurisdiction of a state may be observed from 

points outside that jurisdiction, e.g., from a ship on the high seas. Observation from outer space, which is not 

subject to territorial claims, also cannot be considered to constitute a violation of international law.”).

169 CARL Q. CHRISTOL, THE INTERNATIONAL LAW OF OUTER SPACE 114 (1966) (“It may be concluded that both 

ballistic missiles, directly, and satellites, indirectly, have military utility. This does not automatically exclude them 

from the category of peaceful uses, since defensive and deterrent capabilities serve the cause of peace. It is only 

when such devices are intentionally used for aggressive purposes that they lose their peaceful status.”).

170 OUTER SPACE TREATY art. IV (“The moon and other celestial bodies shall be used by all States Parties to the 

Treaty exclusively for peaceful purposes.”).
945

specifies restrictions on military operations on the moon and other celestial bodies.171

14.10.5 Outer Space Treaty Provisions on Cooperation, Mutual Assistance, and

Potentially Harmful Interference. Article IX of the Outer Space Treaty provides that in the 

exploration and use of outer space, States Parties shall be guided by the principle of cooperation 

and mutual assistance and shall conduct all their activities in outer space with due regard to the 

corresponding interests of all other States Parties.172 For example, States should conduct their 

activities in space with due regard for the rights of other States to have their space systems pass 

through, and conduct operations in, space without interference.

Article IX of the Outer Space Treaty also requires States Parties to undertake 

“appropriate international consultations” before proceeding with any activity or experiment 

planned by it or its nationals in outer space if that State Party has reason to believe that its 

activity or experiment would cause potentially harmful interference with the activities of other 

States Parties in the peaceful exploration and use of outer space.

173 Conversely, a State Party 

that has reason to believe that an activity or experiment planned by another State Party in outer 

space would cause potentially harmful interference with its activities in the peaceful exploration 

and use of outer space may request consultation concerning the activity or experiment.174 

 171 Refer to § 14.10.3.2 (Restrictions on Military Activities on the Moon and Other Celestial Bodies).

172 OUTER SPACE TREATY art. IX (“In the exploration and use of outer space, including the moon and other celestial 

bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall 

conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the 

corresponding interests of all other States Parties to the Treaty.”).

173 OUTER SPACE TREATY art. IX (“If a State Party to the Treaty has reason to believe that an activity or experiment 

planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially 

harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, 

including the moon and other celestial bodies, it shall undertake appropriate international consultations before 

proceeding with any such activity or experiment.”).

174 OUTER SPACE TREATY art. IX (“A State Party to the Treaty which has reason to believe that an activity or 

experiment planned by another State Party in outer space, including the moon and other celestial bodies, would 

cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including 

the moon and other celestial bodies, may request consultation concerning the activity or experiment.”).
946

XV – The Law of Neutrality

Chapter Contents

15.1 Introduction

15.2 Application of the Law of Neutrality

15.3 Overview of the Neutrality Law’s Framework of Reciprocal Rights and 

Duties

15.4 Remedies for Violations of Neutrality Law

15.5 Prohibition on the Use of Neutral Territory as a Base of Operations

15.6 Neutral Persons

15.7 Neutral Waters

15.8 Passage of Belligerent Vessels and Aircraft Through International Straits and 

Archipelagic Sea Lanes

15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal 

Waters

15.10 Neutral Airspace

15.11 Belligerent Right of Angary

15.12 Neutral Commerce and Carriage of Contraband

15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil 

Aircraft

15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and 

Neutral-Marked Civil Aircraft

15.15 Capture of Neutral Vessels and Aircraft

15.16 Belligerent Forces Taking Refuge in Neutral Territory

15.17 POWs or Internees Brought to, or Received by, a Neutral State

15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral 

Territory

15.1 INTRODUCTION

This Chapter addresses the law of neutrality.

Issues of neutrality law can raise questions of national policy regarding an armed 

conflict.1

 In U.S. practice, such national policies would be developed through the National 

Security Council (NSC) process by the Department of State and other departments and agencies 

represented on the National Security Council.2

Some of the rules described in this Chapter were formulated long ago. Moreover, treaties

concerning the law of neutrality might, by their terms, apply only to a limited set of international 

 1 Refer to § 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed 

Conflict).

2 See, e.g., Barack Obama, Presidential Policy Directive – 1, Organization of the National Security Council System, 

Feb. 13, 2009.
947

armed conflicts, and the rules prescribed in those treaties might not reflect customary 

international law.

3

 In addition, it may be important to consider the implications of more recent 

treaties that might be applicable to a specific legal issue. In particular, the Charter of the United 

Nations may, in certain respects, be understood to be consistent with, and, in other respects, to 

modify, rules reflected in the law of neutrality.

4

15.1.1 Matters Addressed by the Law of Neutrality. The law of neutrality prescribes the 

legal relationship between belligerent States and neutral States. The law of neutrality regulates 

relations between: (1) belligerent States, vessels, aircraft, and persons; and (2) neutral States, 

vessels, aircraft, and persons. Under the law of neutrality, these categories of belligerents and 

neutrals have corresponding rights, duties, and liabilities. Special rules have been developed to 

address situations on land, at sea, and in the air.

Certain rules found in the law of neutrality have also been applied in other contexts that 

are closely analogous, such as a State’s duties to prevent a non-State armed group’s use of its 

territory for hostile expeditions against another State.

5

15.1.2 Classification of States as Belligerent, Neutral, or Non-Belligerent. 

15.1.2.1 Belligerent State. Belligerent State refers to a State that is engaged in an 

international armed conflict, whether or not a formal declaration of war has been made.

6

15.1.2.2 Neutral State. Neutral State refers to a State that is not taking part in the 

armed conflict.7 In some cases, States formally state their neutral status in relation to an armed 

conflict.8

15.1.2.3 Non-Belligerent State. The term “non-belligerent” or “non-belligerent 

State” has been used to refer to a State that is not participating in the armed conflict. The term 

“non-belligerent Power” is used in the 1949 Geneva Conventions.9

 

In addition, the term “non-belligerent” has been used to refer to States that sought to 

refrain from active participation in hostilities, but that did not adhere to the duties of strict 

impartiality to which neutrals have traditionally been required to adhere.

10 Such departure from 

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

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

5 Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).

6 Refer to § 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

7 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION preamble (“Considering that neutrality is the juridical 

situation of states which do not take part in the hostilities, and that it creates rights and imposes obligations of 

impartiality, which should be regulated;”).

8 Refer to § 15.2.1.4 (Proclamations of Neutrality and Other Notifications of Neutral Status).

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

10 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 192 (“Thus one of the marked developments of the second 

World War was the emergence of so-called ‘nonbelligerency,’ a term used to indicate the position of states that 

refrained from active participation in hostilities while at the same time abandoning the duties heretofore imposed 
948

the traditional duties of impartiality has, at times, been controversial.11

15.1.3 Purpose of the Law of Neutrality. The law of neutrality seeks to preserve friendly 

relations between belligerent and neutral States by permitting States to avoid taking sides in an 

armed conflict.

12 The law of neutrality also seeks to prevent additional States from being drawn 

into an armed conflict by establishing a clear distinction between belligerent and neutral States.13 

In particular, the law of neutrality seeks to minimize the effects of armed conflict on States that 

are not party to the conflict, including by lessening the effect of war on neutral commerce.

15.1.4 Application of Treaties on Neutrality and Customary International Law. The 

treaties that address neutrality may be limited in their application as a matter of treaty law, but 

provisions of these treaties may reflect customary international law.

For example, many of the treaties that address the law of neutrality were concluded 

before World War II, and have not been universally ratified by States.14 Moreover, certain

treaties only apply between the Parties to the treaty and, in some cases, only if all the belligerent 

States are also Parties to the treaty.15 The principles reflected in those treaties, however, may 

still be applicable insofar as they reflect customary international law, even if they do not apply as 

a matter of treaty law.16 However, if the factual circumstances of the current context are quite 

different from those underlying the formulation of the original treaty rule, it may be incorrect to 

assume that the particular treaty rule reflects (or should reflect) a rule of customary international 

law applicable to the current factual circumstances.

15.1.5 Domestic Neutrality Laws. States may have domestic legislation relating to the 

 

upon non-participants.”); id. at 198 (“It has already been observed that to the extent that this term has not been used 

merely as a synonym for the usual position occupied by non-participants it has served to indicate varying degrees of 

departure from the duties traditionally consequent upon a status of non-participation in war.”).

11 Refer to § 15.2.2 (Qualified Neutrality).

12 Carl Salans, Deputy Legal Adviser, Department of State, comment to R.R. Baxter, The Legal Consequences of the 

Unlawful Use of Force under the Charter, 62 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT 

ITS ANNUAL MEETING 68, 76 (1968) (“When armed conflict occurs, the purpose of international law ought to be to 

limit the scope of the conflict. This is also a purpose of the Charter. The law of neutrality serves that purpose. 

Small states, like Cambodia, would find themselves quickly engulfed in conflict if they had to act on a determination 

that one side or the other in hostilities was acting unlawfully. And nuclear states run another kind of risk if they 

have to take sides in every conflict.”).

13 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED 

CONFLICTS 486 (¶1101) (1999) (“By establishing a clear distinction between neutral states and states parties to the 

conflict, international law prevents more states from being drawn into the conflict.”).

14 See, e.g., 1928 PAN AMERICAN NEUTRALITY CONVENTION; HAGUE V; HAGUE XIII.

15 See, e.g., HAGUE V art. 20 (“The provisions of the present Convention do not apply except between Contracting 

Powers and then only if all the belligerents are parties to the Convention.”); HAGUE XIII art. 28 (“The provisions of 

the present Convention do not apply except to the contracting Powers, and then only if all the belligerents are parties 

to the Convention.”). Consider Declaration respecting maritime law signed by the Plenipotentiaries of Great 

Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, 

reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89, 90 (1907) (“The present Declaration is not and shall 

not be binding, except between those Powers who have acceded, or shall accede to it.”).

16 Refer to § 1.8.1 (Relationship Between Treaties and Customary International Law).
949

law of neutrality. 

In some cases, these statutes implement a State’s obligations under the law of neutrality, 

such as its obligations as a neutral to prevent the arming of belligerent warships in neutral 

ports.17 These statutes may also serve to implement a State’s international obligations outside 

the context of international armed conflict, such as its peacetime obligations to prevent its 

territory from being used as a base of operations for hostile expeditions against friendly States.

18

Domestic statutes may also implement the rights of States under the law of neutrality, 

such as the right of belligerents to conduct captures.19

Domestic neutrality statutes may also help implement a State’s national policy with 

respect to neutrality. The law of neutrality permits neutral States a degree of policy discretion 

with respect to an armed conflict.20 Some neutrality treaties recognize such domestic 

legislation.21 Such legislation, however, must be applied impartially among belligerents.

22 In 

addition, a State may have an obligation to notify other States of its domestic neutrality 

 17 For example, 18 U.S.C. § 961 (“Whoever, within the United States, increases or augments the force of any ship of 

war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, 

cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or 

belonging to the subjects or citizens of any such prince or state, or of any colony, district, or people, the same being 

at war with any foreign prince or state, or of any colony, district, or people, with whom the United States is at peace, 

by adding to the number of guns of such vessel, or by changing those on board of her for guns of a larger caliber, or 

by adding thereto any equipment solely applicable to war, shall be fined under this title or imprisoned not more than 

one year, or both.”).

18 For example, 18 U.S.C. § 960 (“Whoever, within the United States, knowingly begins or sets on foot or provides 

or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to 

be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, 

or people with whom the United States is at peace, shall be fined under this title or imprisoned for not more than 

three years, or both.”). Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).

19 For example, 10 U.S.C. § 7651 (“(a) This chapter applies to all captures of vessels as prize during war by 

authority of the United States or adopted and ratified by the President. However, this chapter does not affect the 

right of the Army or the Air Force, while engaged in hostilities, to capture wherever found and without prize 

procedures--(1) enemy property; or (2) neutral property used or transported in violation of the obligations of neutrals 

under international law.”).

20 Cordell Hull, Secretary of State, Statement at Department of State Press Conference, Sept. 21, 1939, 1 

DEPARTMENT OF STATE BULLETIN 280 (Sept. 23, 1939) (“I think that you will find from a careful analysis of the 

underlying principles of the law of neutrality that this Nation, or any neutral nation, has a right during a war to 

change its national policies whenever experience shows the necessity for such change for the protection of its 

interests and safety. I do not mean to be understood as saying that such action may be taken at the behest or in the 

interests of one of the contending belligerents, it being understood, of course, that any measures taken shall apply 

impartially to all belligerents.”).

21 For example, 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (“When, according to the 

domestic law of the neutral state, the ship may not receive fuel until twenty-four hours after its arrival in port, the 

period of its stay may be extended an equal length of time.”).

22 HAGUE XIII preamble (“Seeing that it is desirable that the Powers should issue detailed enactments to regulate the 

results of the attitude of neutrality when adopted by them; Seeing that it is, for neutral Powers, an admitted duty to 

apply these rules impartially to the several belligerents;”).
950

statutes.23

15.2 APPLICATION OF THE LAW OF NEUTRALITY

The application of the law of neutrality may depend on a State’s national policy towards 

an armed conflict. A State’s obligations under jus ad bellum, including its obligations under the 

Charter of the United Nations, may alter significantly its rights and duties under the law of 

neutrality.

15.2.1 Armed Conflict and the Application of the Law of Neutrality. 

15.2.1.1 Application of the Law of Neutrality and the National Policies of States 

Towards an Armed Conflict. Whether the law of neutrality governs a State’s relations with 

belligerents in an armed conflict may depend on that State’s national policy towards that armed 

conflict.24 For example, if an armed conflict occurs, a State may choose to join the armed 

conflict, in which case it would no longer be neutral and the law of war rather than the law of 

neutrality would govern its relations with opposing belligerents.25 Similarly, if two States 

conduct hostilities against one another, but refuse to recognize a state of armed conflict, third 

States may reject this position and invoke the law of neutrality to protect their rights in relation 

to the armed conflict.26 In addition, outside States that recognize the belligerency of a rebel 

faction in a civil war may choose to apply the law of neutrality in their relations with the rebel 

faction and with the government.27

15.2.1.2 Application of Certain Duties of Neutral States Only in Certain 

International Armed Conflicts. The duties of neutral States to refrain from certain types of 

support to belligerent States do not apply to all armed conflicts to which jus in bello rules apply; 

 23 HAGUE XIII art. 27 (“The Contracting Powers shall communicate to each other in due course all Laws, 

Proclamations, and other enactments regulating in their respective countries the status of belligerent warships in 

their ports and waters, by means of a communication addressed to the Government of the Netherlands, and 

forwarded immediately by that Government to the other Contracting Powers.”).

24 Compare § 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules).

25 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED 

CONFLICTS 489 (¶1104) (1999) (“Traditional international law left to each state the sovereign decision of whether, at 

the outbreak of a conflict between other states, it would participate or remain neutral. ... The distinction between 

participation and neutrality is a political, not military, decision. Where the law of neutrality requires decisions to be 

taken by military command, the government concerned must give political guidance and clarify the position which it 

takes in relation to a particular conflict.”).

26 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 199-200 (“Unlike the law governing the mutual behavior of 

combatants, a large part of which may be considered operative in any international armed conflict, the rules 

regulating the behavior of neutrals and belligerents remain strictly dependent for their operation upon the existence 

of a state of war. It may be, however, that states engaged in armed conflict are unwilling to issue a declaration of 

war or even to acknowledge the existence of a state of war. In such situations it would appear that the decision as to 

whether or not to recognize the existence of a state of war, and thereby to bring into force the law of neutrality, must 

rest principally with third states. The attitude of the parties engaged in armed conflict need not prove decisive for 

third states, the latter being at liberty either to accept the position of the contestants (i.e., the position that war does 

not exist) or to reject this position and to invoke the law of neutrality.”).

27 Refer to § 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).
951

rather, such duties are only triggered in armed conflicts of a certain duration and intensity.28 

However, belligerent States have fundamental duties to respect the sovereignty of neutral States

in all international armed conflicts.29

15.2.1.3 Application of Certain Rules in the Law of Neutrality Outside the Context 

of International Armed Conflict. Certain parts of the law of neutrality may be viewed as 

applicable outside the context of international armed conflict because certain duties that the law 

of neutrality imposes are also found in international law applicable in peacetime. For example, 

under the Charter of the United Nations, States must respect the sovereignty of other States.30 

Thus, States have duties of non-intervention and neutrality in relation to a non-international 

armed conflict against a friendly State.

31 

15.2.1.4 Proclamations of Neutrality and Other Notifications of Neutral Status. A

formal declaration by nonparticipating States of their intention to adopt a neutral status generally 

would not be required for a State to retain its neutral status.

32 However, in light of the 

importance of national policy in determining whether the law of neutrality is applicable, States 

traditionally issued proclamations of neutrality in order to make known their neutral status in 

relation to a conflict.

33 These proclamations of neutrality would state the determination of the 

 28 See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED 

CONFLICTS 490-91 (¶1106) (1999) (“The law of neutrality leads to considerable modifications in the relationships 

between the neutral and the belligerent states, for instance as to the admissibility of exports, the sojurn of warships 

of the parties to the conflict in neutral waters, and the control of neutral trade. These fundamental changes are not 

triggered by every armed incident, but require an armed conflict of a certain duration and intensity. Thus, the 

threshold of application of the law of neutrality is probably higher than that for the rules of the law of war relating to 

the conduct of hostilities and the treatment of prisoners, which are applicable also in conflicts of less intensity.”).

29 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. (¶¶88-89) (“The Court will 

now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings 

brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed 

Conflict, the position was put as follows by one State: ‘The principle of neutrality, in its classic sense, was aimed at 

preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. 

Thus: ‘the territory of neutral powers is inviolable’; ‘belligerents are bound to respect the sovereign rights of neutral 

powers ...’ ‘neutral states have equal interest in having their rights respected by belligerents ...’. It is clear, 

however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the 

transborder damage caused to a neutral State by the use of a weapon in a belligerent State.’ The principle so 

circumscribed is presented as an established part of the customary international law. The Court finds that as in the 

case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the 

principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian 

principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all 

international armed conflict, whatever type of weapons might be used.”) (citations omitted) (amendments in 

original).

30 Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

31 Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).

32 Compare § 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

33 For example, Franklin D. Roosevelt, Proclamation: Proclaiming the Neutrality of the United States in the War 

Between Germany and France; Poland; and The United Kingdom, India, Australia and New Zealand, Sept. 5, 1939, 

54 STAT. 2629 (“AND I do hereby give notice that all nationals of the United States and others who may claim the 

protection of this government, who may misconduct themselves in the premises, will do so at their peril, and that 

they can in no wise obtain any protection from the government of the United States against the consequences of their 

misconduct.”); Woodrow Wilson, Proclamation, Aug. 18, 1914, 38 STAT. 2015 (“Whereas the United States is in 
952

State to observe the duties of neutrality and warn its nationals of the penalties they would incur 

for joining or assisting a belligerent State.34

Although the practice of issuing formal proclamations of neutrality has declined, States 

have continued to make public statements of neutrality to indicate their national policy and legal 

status in relation to an armed conflict.35 States may also communicate their neutral status 

through diplomatic channels or use other means they deem appropriate.

15.2.2 Qualified Neutrality. The United States has taken the position that certain duties 

of neutral States may be inapplicable under the doctrine of qualified neutrality.

The law of neutrality has traditionally required neutral States to observe a strict 

impartiality between parties to a conflict, regardless of which State was viewed as the aggressor 

 

fact aware of the existence of a state of war between Belgium and Germany; And Whereas the United States is on 

terms of friendship and amity with the contending powers, and with the persons inhabiting their several 

dominions;”); George Washington, Proclamation of Neutrality, Apr. 22, 1793, reprinted in 32 THE WRITINGS OF 

GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745-1799, 430-31 (1939) (“Whereas it appears 

that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, on the one 

part, and France on the other; and the duty and interest of the United States require, that they should with sincerity 

and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers: I have therefore 

thought fit by these presents, to declare the disposition of the United States to observe the conduct aforesaid towards 

those powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts and 

proceedings whatsoever, which may in any manner tend to contravene such disposition. And I do hereby also make 

known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture 

under the law of nations, by committing, aiding or abetting hostilities against any of the said powers, or by carrying 

to any of them, those articles which are deemed contraband by the modern usage of nations, will not receive the 

protection of the United States against such punishment or forfeiture; and further that I have given instructions to 

those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the 

cognizance of the Courts of the United States, violate the law of nations, with respect to the powers at war, or any of 

them.”).

34 1956 FM 27-10 (Change No. 1 1976) ¶514 (“When war occurs, neutral States usually issue proclamations of 

neutrality, in which they state their determination to observe the duties of neutrality and warn their nationals of the 

penalties they incur for joining or assisting a belligerent.”).

35 For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (“Iran and Jordan each issued proclamations of 

neutrality during the Persian Gulf crisis and, as described, refrained from active participation in the war.”); Ronald 

Reagan, Written Responses to Questions Submitted by Al-Qabas of Kuwait, May 12, 1987, 1987-I PUBLIC PAPERS 

OF THE PRESIDENTS 529 (“The United States is neutral in the Iran-Iraq war.”); Jimmy Carter, Situation in Iraq and 

Iran: Remarks Concerning the Conflict, Sept. 24, 1980, 1980-81-II PUBLIC PAPERS OF THE PRESIDENTS 1921, 1922

(“Let me repeat that we have not been and we will not become involved in the conflict between Iran and Iraq.”); 

Royal Government of Laos, Statement of Jul. 9, 1962, reprinted in Burma, Cambodia Canada, People’s Republic of 

China, Democratic Republic of Viet-Nam, etc., Declaration on the Neutrality of Laos, Jul. 23, 1962, 456 UNTS 301, 

302-03 (“The Royal Government of Laos, Being resolved to follow the path of peace and neutrality in conformity 

with the interests and aspirations of the Laotian people, as well as the principles of the Joint Communiqué of Zurich 

dated June 22, 1961, and of the Geneva Agreements of 1954, in order to build a peaceful, neutral, independent, 

democratic, unified and prosperous Laos, Solemnly declares that: ... (4) It will not enter into any military alliance or 

into any agreement, whether military or otherwise, which is inconsistent with the neutrality of the Kingdom of Laos; 

it will not allow the establishment of any foreign military base on Laotian territory, nor allow any country to use 

Laotian territory for military purposes or for the purposes of interference in the internal affairs of other countries, 

nor recognise the protection of any alliance or military coalition, including SEATO;”).
953

in the armed conflict.36 However, after treaties outlawed war as a matter of national policy, it 

was argued that neutral States could discriminate in favor of States that were victims of wars of 

aggression.

37 Thus, before its entry into World War II, the United States adopted a position of 

“qualified neutrality” in which neutral States had the right to support belligerent States that had 

been the victim of flagrant and illegal wars of aggression.38 This position was controversial.39

15.2.3 The Law of Neutrality Under the Charter of the United Nations. The Charter of 

the United Nations may, in certain respects, be understood to be consistent with, and, in other 

respects, to modify, rules reflected in the law of neutrality.

15.2.3.1 Consistency Between the Rules in the Law of Neutrality and the Charter 

of the United Nations. In certain cases, the rules on the use of force prescribed in the Charter of 

the United Nations would be understood to be consistent with rules in the law of neutrality.40 

 36 Refer to § 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward 

Contending Parties).

37 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 221 (§61) (“Similarly, it is open to neutral States as a matter 

of legal right to give effect to their moral obligation to discriminate against the aggressor and to deny him, in their 

discretion, the right to exact from neutrals a full measure of impartiality. In some cases neutral States may, having 

regard to their own safety and the desire not to be involved in the war, continue to accord impartial treatment to the 

aggressor. But they need not do so wherever they feel in the position actively to assert the principle, as did the 

United States and other States before entering the Second World War, that the historic foundation of neutrality as an 

attitude of absolute impartiality has disappeared with the renunciation and the abolition of war as an instrument of 

national policy. With regard to States bound by the obligations of the Charter of the United Nations that legal 

faculty and that moral obligation assume the clear complexion of a legal duty.”).

38 Address of Robert H. Jackson, Attorney General of the United States, Inter-American Bar Association, Havana, 

Cuba, March 27, 1941, 35 AJIL 348, 353-54 (1941) (“Present aggressive wars are civil wars against the 

international community. Accordingly, as responsible members of that community, we can treat victims of 

aggression in the same way we treat legitimate governments when there is civil strife and a state of insurgency—that 

is to say, we are permitted to give to defending governments all the aid we choose. In the light of the flagrancy of 

current aggressions, which are apparent on their face, and which all right thinking people recognize for what they 

are, the United States and other states are entitled to assert a right of discriminatory action by reason of the fact that, 

since 1928 so far as it is concerned, the place of war and with it the place of neutrality in the international legal 

system have no longer been the same as they were prior to that date.”).

39 See, e.g., Edwin Borchard, War, Neutrality and Non-Belligerency, 35 AJIL 618 (1941) (“At Havana on March 27, 

1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was 

now obliged to render to England (and presumably others) all aid ‘short of war,’ while ‘at the same time it is the 

declared determination of the government to avoid entry into the war as a belligerent.’ Apparently convinced that 

United States military aid to one belligerent alone cannot be justified by the traditional international law, the 

Attorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality of 

the past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now 

been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest ‘Articles of Interpretation’ 

of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way of 

life for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The 

‘new international law’ is thus found in the vague and illusory monuments to the myth called ‘collective security,’ 

which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General that 

many international lawyers do not share his views on international law or how international law is created, or follow 

his unique construction of documents.”).

40 See, e.g., BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 673 (1994) (“For the purpose 

of responding to an ‘armed attack’, the state acting in self-defence is allowed to trespass on foreign territory, even 
954

For example, a neutral State’s acts of participation in a war of aggression against another 

member of the United Nations would likely violate not only its duties under the law of 

neutrality,41 but also the Charter’s prohibition on the unlawful use of force.42

In the past, the law of neutrality was often viewed as not regulating a State’s decision as 

to whether to adopt a position of neutrality or hostility towards another State.43 Thus, under this 

view, the requirements of the law of neutrality could have been avoided by neutral States if they 

decided to enter the war or by belligerent States if they chose to declare war on a neutral.44 The 

Charter of the United Nations clarifies that such decisions to resort to force may not be made 

without a proper legal basis.45 Thus, insofar as provisions of the Charter are coincident with 

certain rules in the law of neutrality, such requirements of the Charter may not be evaded in the 

way that arguably certain requirements of the law of neutrality previously could have been 

evaded.

15.2.3.2 Modification of Rules in the Law of Neutrality. The Charter of the 

United Nations and decisions by the U.N. Security Council may, in certain circumstances, 

 

when the attack cannot be attributed to the state from whose territory it is proceeding. It does not follow from the 

fact that the right of self-defence pursuant to Art. 51 is restricted to the case of an ‘armed attack’ that defensive 

measures may only affect the ‘attacker’. Thus it is compatible with Art. 51 and the laws of neutrality when a 

warring state fights hostile armed forces undertaking an attack from neutral territory on the territory of the neutral 

state, provided that the state concerned is either unwilling or unable to curb the ongoing violation of its neutrality.”).

41 Refer to § 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward 

Contending Parties).

42 Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

43 See Editorial Comment: The Hague Conventions and the Neutrality of Belgium and Luxemburg, 9 AJIL 959 

(1915) (“[Articles of the Hague V] do not, however, guarantee neutrality, nor do they prevent a state from declaring 

war against a state wishing to remain neutral, which thus becomes a belligerent and loses the benefit of the 

convention. If the Hague conventions were violated by Germany in this matter it would appear to be a violation of 

the spirit, not of the letter, and indeed it is difficult to maintain that there was a violation even of the spirit, because 

international law in its present development apparently allows nations to go to war whenever they please, and the 

Hague conventions do not modify or abridge this provision of the law of nations.”).

44 See John Delatre Falconbridge, The Right of a Belligerent to Make War Upon a Neutral, 4 TRANSACTIONS OF THE 

GROTIUS SOCIETY 204, 209-11 (1918) (“The fifth [Hague] convention [of 1907] does not relate to the question of 

the right to convert the relation of belligerent and neutral into that of belligerent and belligerent, but simply defines 

the rights and obligations incidental to the former relation. ... The fundamental proposition which has been left 

untouched by The Hague Conventions is that by the existing rules of international law one State may declare war 

against another State without any justifiable casus belli, and it commits no breach of law in so doing if it complies 

with the requirements relating to the declaration of war. Its action may be immoral, but it is not illegal unless there 

is a treaty forbidding such action (as there was in the case of Belgium).”).

45 See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED 

CONFLICTS 489 (¶1104) (1999) (“Traditional international law left to each state the sovereign decision of whether, at 

the outbreak of a conflict between other states, it would participate or remain neutral. ... At the outbreak of a 

conflict between two other states, a state is still free to participate or to remain neutral. Modern international law, 

however, limits the freedom of decision as to which side on which a state may become involved. Support granted to 

an aggressor is illegal, participation on the side of the victim of aggression, being collective self-defence, is 

permissible.”).
955

qualify rights and obligations under the law of neutrality.46

For example, under the Charter of the United Nations, States may have obligations to 

support military operations that have been authorized by the U.N. Security Council.47 In such 

circumstances, the obligations under the Charter would prevail over the obligations under the law 

of neutrality.48 For example, a State that is not participating in the conflict that received in its 

territory military forces operating pursuant to a U.N. Security Council resolution might be 

required to return them, rather than to intern them under the law of neutrality.

49 Moreover, U.N. 

Security Council resolutions may obligate States to take measures that would not be required by 

neutrality law. For example, the U.N. Security Council may require States to impose restrictions 

on private conduct within their jurisdiction, such as to prevent private individuals from selling 

weapons to certain States or non-State armed groups.

50

15.2.4 Neutrality Under Regional and Collective Self-Defense Arrangements. Regional 

and collective self-defense agreements may affect States’ rights to maintain a neutral status 

because the States may be required to provide assistance or take military action in collective selfdefense until the U.N. Security Council has taken measures necessary to maintain international 

peace and security.51 The obligations by a State under such an agreement may prevail over the 

 46 1956 FM 27-10 (Change No. 1 1976) ¶513 (“Although these provisions of the Charter have not made it 

impossible for a State to remain neutral, the obligations which the Charter imposes have to a certain extent qualified 

the rights of States in this respect.”).

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

48 For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (“Neutrality in the Persian Gulf War was controlled 

in part by the 1907 Hague V Convention; but traditional concepts of neutral rights and duties are substantially 

modified when, as in this case, the United Nations authorizes collective action against an aggressor nation. It was 

the US position during the Persian Gulf crisis that, regardless of assertions of neutrality, all nations were obligated to 

avoid hindrance of Coalition operations undertaken pursuant to, or in conjunction with, UNSC decisions, and to 

provide whatever assistance possible. By virtue of UNSC Resolution 678 (29 November), members were requested 

‘to provide appropriate support for the actions undertaken’ by nations pursuant to its authorization of use of all 

necessary means to uphold and implement prior resolutions. The language of UNSC Resolution 678 is consistent 

with Articles 2(5), 2(6), 25, and 49 of the UN Charter.”).

49 FINAL REPORT ON THE PERSIAN GULF WAR 628 (“Although the situation never arose, the United States advised 

Iran that, in light of UNSC Resolution 678, Iran would be obligated to return downed Coalition aircraft and aircrew, 

rather than intern them. This illustrates the modified nature of neutrality in these circumstances. It also was the US 

position that entry into Iranian (or Jordanian) airspace to rescue downed aviators would be consistent with its 

international obligations as a belligerent, particularly in light of Resolution 678.”).

50 For example, U.N. SECURITY COUNCIL RESOLUTION 1970, U.N. Doc. S/RES/1970, ¶9 (Feb. 26, 2011) (“Decides 

that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or 

transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag 

vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles 

and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, 

financial or other assistance, related to military activities or the provision, maintenance or use of any arms and 

related materiel, including the provision of armed mercenary personnel whether or not originating in their 

territories,”); U.N. SECURITY COUNCIL RESOLUTION 713, U.N. Doc S/RES/713 ¶6 (Sept. 25, 1991) (“Decides, under 

Chapter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace and 

stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and 

military equipment to Yugoslavia until the Council decides otherwise following consultation between the SecretaryGeneral and the Government of Yugoslavia;”).

51 Refer to § 1.11.5.5 (Right of Collective Self-Defense).
956

State’s right under the customary law of neutrality to be impartial among the belligerents and to 

abstain from the armed conflict.

15.3 OVERVIEW OF THE NEUTRALITY LAW’S FRAMEWORK OF RECIPROCAL RIGHTS AND DUTIES

The law of neutrality establishes a framework of reciprocal rights and duties for neutrals 

and belligerents.

15.3.1 Neutral Rights. Belligerent States are bound to respect the sovereign rights of 

neutral States (e.g., the inviolability of a neutral State’s territory).

52 The exercise by a neutral 

State of its rights under the law of neutrality may not be considered an unfriendly act by either of 

the belligerents.53

15.3.1.1 Inviolability of Neutral Territory - Prohibition on Unauthorized Entry. 

The territory of neutral States is inviolable.

54 The inviolability of neutral territory prohibits any 

unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over 

such areas by armed forces or instrumentalities of war.55

15.3.1.2 Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other 

Violations of Neutrality. The inviolability of neutral territory also requires belligerent forces to 

refrain from committing hostile acts or other acts that, if knowingly permitted by a neutral State,

would constitute a violation of neutrality in neutral territory (including neutral lands, neutral 

waters, and neutral airspace).56 For example, belligerent warships may not exercise the 

belligerent right of visit and search, and may not capture vessels in neutral waters.57

However, belligerent forces may use force in self-defense or as part of self-help 

enforcement actions against enemy forces that have committed violations of neutrality when the 

 52 HAGUE XIII art. 1 (“Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in 

neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a 

violation of neutrality.”); 1956 FM 27-10 (Change No. 1 1976) ¶512 (“It is the duty of belligerents to respect the 

territory and rights of neutral States.”).

53 HAGUE XIII art. 26 (“The exercise by a neutral Power of the rights laid down in the present convention can under 

no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles 

relating thereto.”).

54 HAGUE V art. 1 (“The territory of neutral Powers is inviolable.”).

55 1956 FM 27-10 (Change No. 1 1976) ¶515 (“b. Application of Rule. The foregoing rule prohibits any 

unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops 

or instrumentalities of war.”).

56 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 3 (“Belligerent states are obligated to refrain from 

performing acts of war in neutral waters or other acts which may constitute on the part of the State that tolerates 

them, a violation of neutrality.”); HAGUE XIII art. 1 (“Belligerents are bound to respect the sovereign rights of 

neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly 

permitted by any Power, constitute a violation of neutrality.”).

57 Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search); § 15.15 (Capture of 

Neutral Vessels and Aircraft).
957

neutral State is unwilling or unable to address such violations.

58

15.3.2 Neutral Duties -- Abstention From Participation in Hostilities and Impartial 

Conduct Toward Contending Parties. The principal duties of a neutral State are to abstain from 

any participation in the conflict and to be impartial in conduct towards contending parties.59 

Certain other duties may be viewed as a consequence of these principal duties, but 

different publicists have categorized these duties differently. For example, the duty of a neutral

State to refrain from supporting one side in the conflict may be viewed as a function of its duty 

to abstain from participation in hostilities.

60 On the other hand, the duty of a neutral State to 

refrain from supporting one side in the conflict may also be viewed as a result of its duty of 

impartiality.61

The duties of a neutral State may also be classified in terms of: (1) abstention 

(obligations to refrain from taking certain actions); (2) prevention (obligations to take certain 

actions); and (3) acquiescence (obligations to accept certain actions by belligerents).62

15.3.2.1 Duty to Refrain From Providing War-Related Goods and Services to 

Belligerents. Neutral States have an obligation to refrain from providing war-related goods and 

services to belligerents.63 A neutral State is prohibited from supplying a belligerent State in any 

manner, either directly or indirectly, with warships, ammunition, or war material of any kind.64 

 58 Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent 

Violations of Neutrality).

59 The Three Friends, 166 U.S. 1, 52 (1897) (“Neutrality, strictly speaking, consists in abstinence from any 

participation in a public, private or civil war, and in impartiality of conduct toward both parties, ... .”).

60 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED 

CONFLICTS 485 (¶1101) (1999) (“The duty of non-participation means, above all, that the state must abstain from 

supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to 

allow one party to the conflict to use the resources of the neutral state against the will of the opponent. Therefore, 

the defence of neutrality is part of the duty of non-participation.”).

61 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 654 (§294) (“Since neutrality is an attitude of impartiality, it 

excludes such assistance and succor to one of the belligerents as is detrimental to the other, and, further, such 

injuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For 

neutrals must prevent belligerents from making use of their neutral territories, and of their resources, for military and 

naval purposes during the war.”).

62 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (“The duties of a neutral state may also be 

classified—and frequently are so classified—as duties of abstention, prevention and acquiesence [sic] (or toleration). 

Duties of abstention refer to acts the neutral state itself must refrain from performing; duties of prevention refer to 

acts the commission of which within its jurisdiction the neutral is obligated to prevent; and, finally, duties of 

acquiescence have reference to neutral obligations to permit belligerent measures of repression against neutral 

subjects found rendering certain acts of assistance to an enemy.”).

63 Philander C. Knox, Attorney General, Neutrality—Military Supplies—Horses, Apr. 4, 1902, 24 OPINIONS OF THE 

ATTORNEY GENERAL 15, 18 (1903) (“One of the rules of international law which seems to be now fully agreed upon 

is that a neutral nation shall not give aid to one of the belligerents in the carrying on of the war.”).

64 HAGUE XIII art. 6 (“The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, 

of war-ships, ammunition, or war material of any kind whatever, is forbidden.”).
958

The neutral State is also prohibited from providing money or loans to a belligerent State.65

A neutral State also has a duty to refrain from placing its various governmental agencies 

at the disposal of a belligerent in such a way as to aid it directly or indirectly in the prosecution 

of the war.66

Although a neutral State may not supply war-related goods and services to belligerents, a 

neutral State is not called upon to prevent the export or transport, on behalf of one or other of the 

belligerents, of arms, munitions, or anything that can be of use to an armed force.67 Commercial 

transactions between belligerent States and neutral corporations, companies, citizens, or persons 

resident in a neutral State are not prohibited.68 A belligerent State may purchase from such 

corporations, companies, citizens, or persons supplies, munitions, or anything that may be of use 

to an armed force, which can be exported or transported without involving the neutral State.69 

The supply of services and goods to a belligerent State, however, must not convert neutral 

territory into a base of operations.70

If a neutral State prohibits the export or transport of arms, munitions, or anything that can 

be of use to an armed force, every measure of restriction or prohibition taken by a neutral State 

in regard to the provision of such supplies or munitions must be impartially applied by it to all 

 65 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 16 (“The neutral state is forbidden: a) To deliver to the 

belligerent, directly or indirectly, or for any reason whatever, ships of war, munitions or any other war material; b) 

To grant it loans, or to open credits for it during the duration of war. Credits that a neutral state may give to 

facilitate the sale or exportation of its food products and raw materials are not included in this prohibition.”).

66 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 208 (“As Hyde has observed, ‘the duty to abstain from 

giving aid is a broad one and covers a vast field of governmental activities;’ for in addition to the prohibition against 

supplying belligerents with war materials of any kind the neutral is obligated, in general, ‘to abstain from placing its 

various governmental agencies at the disposal of a belligerent in such a way as to aid it directly or indirectly in the 

prosecution of the war.’ Thus in naval warfare, the public vessels of a neutral state must refrain from rendering 

services of any kind to belligerent naval units at sea.”).

67 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 22 (“Neutral states are not obligated to prevent 

the export or transit at the expense of any one of the belligerents of arms, munitions and in general of anything 

which may be useful to their military forces.”); HAGUE V art. 7 (“A neutral Power is not called upon to prevent the 

export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of 

anything which can be of use to an army or a fleet.”); HAGUE XIII art. 7 (“A neutral Power is not bound to prevent 

the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could 

be of use to an army or fleet.”).

68 1956 FM 27-10 (Change No. 1 1976) ¶527 (“Commercial transactions with belligerents by neutral corporations, 

companies, citizens, or persons resident in neutral territory are not prohibited.”); 1928 PAN AMERICAN MARITIME 

NEUTRALITY CONVENTION art. 15 (“Of the acts of assistance coming from the neutral states, and the acts of 

commerce on the part of individuals, only the first are contrary to neutrality.”).

69 1956 FM 27-10 (Change No. 1 1976) ¶527 (“A belligerent may purchase from such persons supplies, munitions, 

or anything that may be of use to an army or fleet, which can be exported or transported without involving the 

neutral State.”).

70 Refer to § 15.5.1 (Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a Belligerent From 

Neutral Territory).
959

belligerent States.71

15.3.2.2 Duty to Prevent Violations of Neutrality Within Its Jurisdiction. A 

neutral State has certain obligations to prevent violations of its neutrality within its territory. A 

neutral State has an obligation to prevent violations of its neutrality committed by belligerent 

forces.72 A neutral State also has an obligation to prevent violations of its neutrality committed 

by persons within its jurisdiction.73

15.3.2.3 Public Expressions of Sympathy Are Not Violations of Neutrality. Public 

expressions of sympathy for one belligerent or disapproval of another belligerent are not 

violations of duties of neutrality.74

15.3.2.4 Authorized Humanitarian Assistance Is Not a Violation of Neutrality. 

Humanitarian assistance given in accordance with international law is also not a violation of 

duties of neutrality.

75 For example, a neutral State’s performing of the role of the Protecting 

Power in accordance with the 1949 Geneva Conventions is not regarded as unneutral conduct.76

15.3.3 Correlative or Reciprocal Nature of Rights and Duties Under the Law of 

Neutrality. The rights and duties of belligerents and neutrals under the law of neutrality may be 

 71 HAGUE V art. 9 (“Every measure of restriction or prohibition taken by a neutral Power in regard to the matters 

referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.”).

72 HAGUE XIII art. 25 (“A neutral Power is bound to exercise such surveillance as the means at its disposal allow to 

prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.”); 

HAGUE V art. 5 (“A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its 

territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed 

on its own territory.”).

73 See, e.g., Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V 

General Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN

326, 327 (Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals,

there exist certain standards recognized by the American Republics applicable in these circumstances and that in 

accordance with them they: ... (b) Shall prevent, in accordance with their internal legislations, the inhabitants of their 

territories from engaging in activities capable of affecting the neutral status of the American Republics.”); Treaty 

between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral Government is 

bound – ... Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its 

jurisdiction, to prevent any violation of the foregoing obligations and duties.”).

74 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 655 (§294) (“The required attitude of impartiality is not 

incompatible with sympathy with one belligerent, and disapproval of the other, so long as these feelings do not find 

expression in actions violating impartiality. Thus, not only public opinion and the press of a neutral State, but also 

its Government, may show their sympathy to one party or another without violating neutrality.”).

75 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 655 (§294) (“Moreover, acts of humanity on the part of 

neutrals and their subjects, such as the sending to military hospitals of doctors, medicine, provisions, dressing 

material, and the like, and the sending of clothes and money to prisoners of war, can never be construed as acts of 

partiality, even if these comforts are provided for the wounded and the prisoners of one belligerent only.”).

76 LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 269 (2nd ed., 2000) (“Frequently, as has been 

seen in the discussion concerning protecting powers, a neutral power is appointed to represent the interests of one 

belligerent in the territory of the adverse party or for some of its nationals to be appointed to the Fact Finding 

Commission called for in Protocol I in relation to the investigation of alleged breaches of the law of armed conflict. 

In neither case can a belligerent suggest that such action is in breach of the obligations of neutrality.”).
960

understood as correlative or reciprocal.

The duties of neutrals often correspond to rights of belligerents, and rights of neutrals 

often correspond to the duties of belligerents.77 For example, the duty of a neutral to abstain 

from hostilities is also a right of a belligerent not to have its adversary aided in hostilities by the 

neutral State. The right of a neutral State to have its territory be inviolable is also a duty of 

belligerent States to avoid conducting hostilities in neutral territory. 

Similarly, the ability of a neutral to assert its rights may depend on whether it has 

fulfilled its corresponding neutral duties.78 For example, the right of a neutral State to have its 

territory be inviolable may not be asserted to the extent it has failed in its duty to ensure that its 

territory is not used as a base of operations by a belligerent. 

In light of the correlative nature of the rights and duties of belligerents and neutrals under 

the law of neutrality, a single rule in the law of neutrality may reflect multiple rights and duties 

of both belligerents and neutrals. For example, hostile acts are not to be committed on neutral 

territory. This rule involves the right of the neutral State for its territory to be inviolable, and 

involves a duty on the part of the neutral State to prevent such acts. This rule also reflects a duty 

of the belligerent State to refrain from such acts, and a right of the belligerent State not to have 

such acts conducted by an opposing belligerent.

15.4 REMEDIES FOR VIOLATIONS OF NEUTRALITY LAW

15.4.1 Distinction Between Violations of Neutral Duties and the End of Neutral Status. 

Violations of neutrality by belligerent or neutral States should be distinguished from the end of a 

State’s neutral status. Rather, whether violations of neutrality result in the end of the neutral 

status of a State may depend on the national policies of that State and the belligerent States.79

Acts that are incompatible with the relationship between the neutral State and a 

belligerent State under the law of neutrality need not end the neutral State’s neutrality and bring 

that State into the conflict as a belligerent. For example, despite Vichy France’s violations of its 

neutral duties during World War II and despite the Allied invasion of French North Africa, 

 77 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (“It is also helpful to observe that the duties 

of a neutral correspond to the rights of a belligerent, and that the rights of a neutral correspond to the duties of a 

belligerent. The neutral’s duty to observe a strict impartiality corresponds to the belligerent’s right to demand 

impartiality on the part of the neutral. At the same time, the neutral has a right to demand that the belligerent will 

act toward it in such a manner as to respect its position of impartiality, and there is no question but that the 

belligerent is under a duty to do so.”).

78 G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 305 (28.1) (1908) (“The rights and duties of neutrality 

are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State fail 

to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The 

rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties 

of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral 

duties, they are liable to the punishment of being treated in their persons or property as public enemies of the 

offended belligerent.”).

79 Refer to § 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed 

Conflict).
961

diplomatic relations persisted between the United States and France during World War II.80

15.4.2 Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to 

Prevent Violations of Neutrality. Should the neutral State be unable, or fail for any reason, to 

prevent violations of its neutrality by the forces of one belligerent entering or passing through its 

territory (including its lands, waters, and airspace), the other belligerent State may be justified in 

attacking the enemy forces on the neutral State’s territory.81 This view has been reflected in the 

military manuals of other States.82 For example, consistent with the jus ad bellum requirements 

for self-defense, belligerent forces may act in self-defense when attacked or threatened with 

attack from enemy forces unlawfully present in neutral territory,

83 including by taking

appropriate action to counter the use of neutral territory as a base of enemy operations when the 

 80 DWIGHT D. EISENHOWER, CRUSADE IN EUROPE 86-88 (1997) (“Vichy France was a neutral country and during the 

entire period of the war the United States had maintained diplomatic connection with the French Government. 

Never, in all its history, had the United States been a party to an unprovoked attack upon a neutral country and even 

though Vichy was avowedly collaborating with Hitler, there is no doubt that American political leaders regarded the 

projected operation, from this viewpoint, with considerable distaste. ... The Allied invasion of Africa was a most 

peculiar venture of armed forces in the field of international politics; we were invading a neutral country to create a 

friend.”).

81 1956 FM 27-10 (Change No. 1 1976) ¶520 (“Should the neutral State be unable, or fail for any reason, to prevent 

violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other 

belligerent State may be justified in attacking the enemy forces on this territory.”).

82 2004 UK MANUAL ¶1.43a (“Neutral states must refrain from allowing their territory to be used by belligerent 

states for the purposes of military operations. If a neutral state is unable or unwilling to prevent the use of its 

territory for the purposes of such military operations, a belligerent state may become entitled to use force in selfdefence against enemy forces operating from the territory of that neutral state. Whether or not they are so entitled 

will depend on the ordinary rules of the jus ad bellum.”); 2006 AUSTRALIAN MANUAL ¶11.8 (“As a general rule of 

international law, all acts of hostility in neutral territory, including neutral land, neutral waters and neutral airspace 

are prohibited. A neutral state has a duty to prevent the use of its territory as a sanctuary or a base of operations by 

the belligerent forces of any side. If the neutral state is unable or unwilling to enforce effectively its right of 

inviolability, an aggrieved belligerent may resort to acts of hostility in neutral territory against enemy forces, 

including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorised to 

act in self-defence when attacked or threatened with attack while in neutral territory or when attacked or threatened 

from neutral territory”); 2001 CANADIAN MANUAL ¶1304(3) (“A neutral state is permitted to resist any attempted 

violation of its borders by force and such resistance does not make the neutral a party to the conflict. If enemy 

forces enter neutral such territory and the neutral state is unwilling or unable to intern or expel them, the opposing 

party is entitled to attack them there, or to demand compensation from the neutral for this breach of neutrality.”); 

2002 GERMAN COMMANDER’S HANDBOOK: LEGAL BASES FOR THE OPERATIONS OF NAVAL FORCES ¶232 (“On the 

one hand, the parties to the conflict are obliged to respect the inviolability of neural [sic] territory, neutral 

internal waters, neutral territorial seas and the neutral airspace above these areas. Within and above these areas 

all hostilities, that is the use of armed force and of other measures of maritime war (including measures based on the 

law of prize) are prohibited. There is one exception to this principle which applies to measures of self-defence, 

that is the event that one of the parties to the conflict is attacked or endangered to be attacked in these areas. On the 

other hand, a neutral state is obliged to prevent the parties to the conflict from misusing these areas as sanctuary or 

base of operations. If it is unwilling or unable to do so, the other party to the conflict is entitled to take all 

measures necessary to terminate the misuse of neutral territory or neutral waters.”).

83 2007 NWP 1-14M ¶7.3 (“If the neutral nation is unable or unwilling to enforce effectively its right of 

inviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities 

of enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents are 

also authorized to act in self-defense when attacked or threatened with attack while in neutral territory or when 

attacked or threatened from neutral territory.”).
962

neutral State is unwilling or unable to prevent such violations.84

15.4.3 Neutral State’s Use of Force to Defend Its Neutrality. A neutral State may also 

engage in self-help to prevent violations of neutrality on its territory. Such self-help is also an 

obligation of the neutral State.85

The fact that a neutral State resists, even by force, attempts to violate its neutrality cannot 

be regarded as a hostile act.86 For example, a State whose territory is adjacent to a theater of war 

normally mobilizes a portion of its forces to prevent the forces of either belligerent from entering 

its territory, to intern such persons as may be permitted to enter, and generally to carry out its 

duties of neutrality.87 Such military operations are not regarded as hostile acts against the 

belligerent State.

15.4.4 Redress of Certain Violations of Neutrality. In addition to the obligations to 

prevent violations of neutrality, a State may also have obligations to redress violations of 

neutrality that have been committed.

For example, violations of the law of neutrality may result in liability for payment of 

damages in certain cases.88 As a case in point, if harm is caused in a neutral State by the 

 84 For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, Apr. 30, 1970, 1970 

PUBLIC PAPERS OF THE PRESIDENTS 405, 406-08 (“American policy since then has been to scrupulously respect the 

neutrality of the Cambodian people. ... North Vietnam, however, has not respected that neutrality. For the past 5 

years—as indicated on this map that you see here—North Vietnam has occupied military sanctuaries all along the 

Cambodian frontier with South Vietnam. Some of these extend up to 20 miles into Cambodia. The sanctuaries are 

in red and, as you note, they are on both sides of the border. They are used for hit and run attacks on American and 

South Vietnamese forces in South Vietnam. These Communist occupied territories contain major base camps, 

training sites, logistics facilities, weapons and ammunition factories, airstrips, and prisoner-of-war compounds. ... 

[T]his is the decision I have made. In cooperation with the armed forces of South Vietnam, attacks are being 

launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border. ... This is not an 

invasion of Cambodia. The areas in which these attacks will be launched are completely occupied and controlled by 

North Vietnamese forces. Our purpose is not to occupy the areas. Once enemy forces are driven out of these 

sanctuaries and once their military supplies are destroyed, we will withdraw.”); SPAIGHT, AIR POWER AND WAR 

RIGHTS 434 (“Justifiable entry of neutral jurisdiction.—The international law of neutrality is based on the 

principle that neutral States exclude both belligerent parties from entry into or passage through their territory. If that 

condition is not fulfilled, to advantage of one party and the detriment of the other, the latter is entitled, after protest, 

to take the action necessary to protect his interests. He is entitled to follow his enemy into neutral jurisdiction and to 

attack him there. It was for this reasons that Japan was able to justify her action in 1904 in cutting out the Russian 

cruiser Reshitelni from the Chinese harbor of Chifu when it became apparent that China was unable or unwilling to 

disarm the vessel in accordance with the requirements of international law. It was on the same principle that the 

British intervention in Syria in 1941 was justifiable. The Vichy authorities there were allowing German aircraft to 

use the Syrian airfields, and such use was particularly damaging to British interests at that time, in view of the revolt 

in Iraq.”).

85 Refer to § 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its Jurisdiction).

86 HAGUE V art. 10 (“The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be 

regarded as a hostile act.”).

87 1956 FM 27-10 (Change No. 1 1976) ¶519 (“In order to protect its neutrality, a State whose territory is adjacent to 

a theater of war normally mobilizes a portion of its forces to prevent troops of either belligerent from entering its 

territory, to intern such as may be permitted to enter, and generally to carry out its duties of neutrality.”).

88 Refer to § 18.16 (Compensation for Violations of the Law of War).
963

unauthorized entry of belligerent forces, the offending State may be required, according to the 

circumstances, to respond in damages.89

Similarly, when a ship has been captured in the territorial waters of a neutral State, the 

neutral State must employ, if the prize is still within its jurisdiction, the means at its disposal to 

release the prize with its officers and crew, and to intern the prize crew.90 If the prize is no 

longer in the jurisdiction of the neutral power, the captor State, on the demand of the neutral 

State, must liberate the prize with its officers and crew.91 The neutral State has a duty to make 

this demand.92

15.5 PROHIBITION ON THE USE OF NEUTRAL TERRITORY AS A BASE OF OPERATIONS

Neutral territory (including neutral lands, waters, and airspace) may not be used as a base 

of operations against belligerent forces.93 For example, belligerent States are forbidden to use a 

neutral State’s ports and waters as a base of naval operations against their adversaries,

94 and a 

neutral State has a corresponding obligation to prevent such use.

95

 89 1956 FM 27-10 (Change No. 1 1976) ¶515 (“If harm is caused in a neutral State by the unauthorized entry of a 

belligerent, the offending State may be required, according to the circumstances, to respond in damages.”).

90 HAGUE XIII art. 3 (“When a ship has been captured in the territorial waters of a neutral Power, this Power must 

employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and 

crew, and to intern the prize crew.”).

91 HAGUE XIII art. 3 (“If the prize is not in the jurisdiction of the neutral power, the captor Government, on the 

demand of that Power, must liberate the prize with its officers and crew.”).

92 William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (“And whereas the 

Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present 

concurring therein) did advise and consent to the adherence by the United States to the said Convention with the 

reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said 

Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship 

captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of the 

United States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate, 

did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;”).

93 Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General 

Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 

(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist 

certain standards recognized by the American Republics applicable in these circumstances and that in accordance 

with them they: (a) Shall prevent their respective terrestrial, maritime and aerial territories from being utilized as 

bases of belligerent operations.”); 1955 NWIP 10-2 ¶442 (“Belligerents are forbidden to use neutral territory, 

territorial sea, or air space as a base for hostile operations.”).

94 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 4 (“Under the terms of the preceding article, a 

belligerent state is forbidden: a) To make use of neutral waters as a base of naval operations against the enemy, or 

to renew or augment military supplies or the armament of its ships, or to complete the equipment of the latter;”); 

HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations against 

their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of 

communicating with the belligerent forces on land or sea.”).

95 See, e.g., Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral 

Government is bound – Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the 

base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or 
964

The prohibition against the use of neutral territory as a base of operations extends to any

hostile expeditions against a belligerent State, and thus includes such expeditions by non-State 

actors.96 For example, a neutral State has an obligation to prevent the arming of any vessel 

within its jurisdiction that is intended to engage in hostile operations against a State with which it 

is at peace and to prevent the departure from its jurisdiction of any vessel intended to engage in 

hostile operations that has been adapted entirely or partly within such jurisdiction for use in 

war.97

The prohibition on the use of neutral territory as a base of operations includes 

prohibitions against (1) outfitting hostile expeditions with supplies and services; (2) recruiting 

forces in neutral territory; (3) establishing military communications facilities in neutral territory; 

and (4) moving belligerent forces or convoys of military supplies on land.

15.5.1 Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a 

Belligerent From Neutral Territory. It is forbidden to permit the use of the neutral State’s 

territory for the fitting out of hostile expeditions.98 As a case in point, a belligerent State’s 

warships may not make use of a neutral State’s ports, roadsteads, and territorial waters to 

replenish or increase their supplies of war materials or their armaments, or for completing their 

crews.99

15.5.2 Prohibition Against Recruiting and Forming Corps of Combatants. Units of 

combatants may not be formed nor may recruiting agencies be established on the territory of a 

neutral State to assist a belligerent State.100 This means that the establishment of recruiting 

agencies, the enlistment of personnel, the formation and organization of hostile expeditions on a 

neutral State’s territory, and the passage across its frontiers of organized bodies of personnel 

 

arms, or the recruitment of men.”). Refer to § 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its 

Jurisdiction).

96 Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed 

Groups Against Other States).

97 HAGUE XIII art. 8 (“A neutral Government is bound to employ the means at its disposal to prevent the fitting out 

or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in 

hostile operations, against a Power with which that Government is at peace. It is also bound to display the same 

vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile 

operations, which has been adapted entirely or partly within the said jurisdiction for use in war.”); Treaty between 

the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral Government is bound – First, 

to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has 

reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and 

also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on 

war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike 

use.”).

98 1956 FM 27-10 (Change No. 1 1976) ¶526 (“It is also forbidden to permit the use of its territory for the fitting out 

of hostile expeditions.”).

99 HAGUE XIII art. 18 (“Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for 

replenishing or increasing their supplies of war material or their armament, or for completing their crews.”).

100 HAGUE V art. 4 (“Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a 

neutral Power to assist the belligerents.”).
965

intending to enlist are prohibited.101

15.5.2.1 Exception for Authorized Medical Personnel. This prohibition does not 

extend to medical personnel and units of voluntary aid societies of a neutral State who are duly 

authorized to provide medical assistance to a belligerent State.102 In no circumstance shall such 

assistance by medical personnel and units of voluntary aid societies of the neutral State be 

considered as interference in the conflict.103

15.5.2.2 Exception for Persons Crossing a Neutral State’s Frontiers Separately to 

Assist a Belligerent State. The prohibition against organizing units of combatants is directed 

against organized bodies, which only require being armed to become an immediate fighting 

force.104 Thus, the responsibility of a neutral State is not engaged by the fact of persons crossing 

the frontier separately to offer their services to one of the belligerent States.

105 Individuals 

crossing the frontier singly or in small bands that are unorganized create no obligation on the 

neutral State.106 

Neutral States shall not oppose the voluntary departure of nationals of belligerent States 

even though they leave simultaneously in great numbers; but they may oppose the voluntary 

departure of their own nationals going to enlist in the armed forces of belligerent States.

107 

Neutral States are not required to enact legislation forbidding their nationals to join the armed 

forces of belligerent States.108

Neutral States, however, may not send regularly constituted military units across the 

 101 1956 FM 27-10 (Change No. 1 1976) ¶522b (“Application of Rule. The establishment of recruiting agencies, the 

enlistment of men, the formation and organization of hostile expeditions on neutral territory, and the passage across 

its frontiers of organized bodies of men intending to enlist are prohibited.”); Consultative Meeting of Foreign 

Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of the 

American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American 

Republics resolve “[t]o declare that with regard to their status as neutrals, there exist certain standards recognized by 

the American Republics applicable in these circumstances and that in accordance with them they: ... (c) Shall 

prevent on their respective territories the enlistment of persons to serve in the military, naval, or air forces of the 

belligerents;”).

102 1956 FM 27-10 (Change No. 1 1976) ¶522c (“This prohibition does not extend to medical personnel and units of 

a voluntary aid society duly authorized to join one of the belligerents. (See GWS, art. 27; par. 229 herein.)”).

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

104 1956 FM 27-10 (Change No. 1 1976) ¶524a (“The prohibition in Article 4, H. V (par. 522), is directed against 

organized bodies which only require to be armed to become an immediate fighting force.”).

105 HAGUE V art. 6 (“The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier 

separately to offer their services to one of the belligerents.”).

106 1956 FM 27-10 (Change No. 1 1976) ¶524a (“Individuals crossing the frontier singly or in small bands that are 

unorganized create no obligation on the neutral State.”).

107 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 23 (“Neutral states shall not oppose the voluntary 

departure of nationals of belligerent States even though they leave simultaneously in great numbers; but they may 

oppose the voluntary departure of their own nationals going to enlist in the armed forces.”).

108 1956 FM 27-10 (Change No. 1 1976) ¶524a (“Neutral States are not required to enact legislation forbidding their 

nationals to join the armed forces of the belligerents.”).
966

frontier in the guise of “volunteers” or small unorganized bands.109

15.5.3 Prohibition Against Establishment or Use of Belligerent Communications 

Facilities in Neutral Territory. Belligerent States are prohibited from erecting on the territory of 

a neutral State any apparatus for the purpose of communicating with belligerent forces on land or 

sea.110 Belligerent States are prohibited from using any installation of this kind established by 

them before the armed conflict on the territory of a neutral State for purely military purposes, 

and which has not been opened for the service of public messages.111

15.5.3.1 Use of Neutral Facilities by Belligerents Not Prohibited. A neutral State 

does not, however, have to forbid or restrict the use on behalf of belligerent States of 

communications equipment and facilities belonging to the neutral State, or belonging to 

companies or private individuals.112 

That a neutral State, if it so desires, may transmit messages by means of its 

communications facilities does not imply that the neutral State may use such facilities or permit 

their use to lend assistance to the belligerents on one side only.113 Every measure of restriction 

or prohibition taken by a neutral State in regard to the use of its communications facilities and 

equipment must be impartially applied by it to all belligerent States.114 It also must see to the 

same obligation being observed by companies or private individuals owning such 

communication equipment and facilities.115 

 109 1956 FM 27-10 (Change No. 1 1976) ¶524a (“The foregoing rules do not, however, permit a State professing to 

be neutral to send regularly constituted military units across the frontier in the guise of ‘volunteers’ or small 

unorganized bands.”).

110 HAGUE V art. 3 (“Belligerents are likewise forbidden to: (a.) Erect on the territory of a neutral Power a wireless 

telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;”); 

HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations against 

their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of 

communicating with the belligerent forces on land or sea.”); 1928 PAN AMERICAN MARITIME NEUTRALITY 

CONVENTION art. 4 (“Under the terms of the preceding article, a belligerent state is forbidden: ... b) To install in 

neutral waters radio-telegraph stations or any other apparatus which may serve as a means of communication with 

its military forces, or to make use of installations of this kind it may have established before the war and which may 

not have been opened to the public.”).

111 HAGUE V art. 3 (“Belligerents are likewise forbidden to: ... (b.) Use any installation of this kind established by 

them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened 

for the service of public messages.”).

112 HAGUE V art. 8 (“A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of 

telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private 

individuals.”).

113 1956 FM 27-10 (Change No. 1 1976) ¶530 (“The liberty of a neutral State, if it so desires, to transmit messages 

by means of its telegraph, telephone, cable, radio, or other communications facilities does not imply the power so to 

use them or to permit their use as to lend assistance to the belligerents on one side only.”).

114 HAGUE V art. 9 (“Every measure of restriction or prohibition taken by a neutral Power in regard to the matters 

referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.”).

115 HAGUE V art. 9 (“A neutral Power must see to the same obligations being observed by companies or private 

individuals owning telegraph or telephone cables or wireless telegraphy apparatus.”).
967

15.5.4 Movement of Belligerent Forces and Convoys of Supplies Through Neutral Land 

Territory. Belligerent States are forbidden to move forces or convoys of either munitions of war 

or supplies across the land territory of a neutral State.116 This rule only prohibits the official acts 

of a belligerent State in convoying or shipping munitions and supplies through a neutral State as 

part of an expedition; it does not prohibit the shipment of such supplies by private persons.117

However, a neutral State may authorize passage through its territory of the wounded and 

sick, including the overflight of its territory by certain medical aircraft.

118

15.6 NEUTRAL PERSONS

15.6.1 Definition of Neutral Person. The nationals of a State that is not taking part in the 

war are considered neutral persons.119

15.6.2 Forfeiture of Protections of Neutral Status by a Neutral Person. A national of a 

neutral State would not retain the protections that a person would derive by virtue of the neutral 

status of his or her State of nationality if that person commits:

• hostile acts against a belligerent State; or

• acts in favor of a belligerent State, particularly if that person voluntarily enlists in the 

ranks of the armed forces of one of the parties to the armed conflict.120

For example, neutral persons who materially support one belligerent generally forfeit 

their neutral character or assume certain liabilities with respect to the other belligerent.121

15.6.2.1 No More Severe Treatment Than Nationals of an Opposing Belligerent 

State. A neutral person, however, shall not be more severely treated by the belligerent State as 

against whom that person has abandoned his or her neutrality than a national of the other 

 116 HAGUE V art. 2 (“Belligerents are forbidden to move troops or convoys of either munitions of war or supplies 

across the territory of a neutral Power.”).

117 1956 FM 27-10 (Change No. 1 1976) ¶517 (“A distinction must be drawn between the official acts of the 

belligerent State in convoying or shipping munitions and supplies through neutral territory as part of an expedition 

and the shipment of such supplies by private persons. The former is forbidden while the latter is not.”).

118 Refer to § 15.18 (Authorized Passage of Wounded and Sick Combatants Through Neutral Territory).

119 HAGUE V art. 16 (“The nationals of a State which is not taking part in the war are considered as neutrals.”).

120 HAGUE V art. 17 (“A neutral cannot avail himself of his neutrality: (a.) If he commits hostile acts against a 

belligerent; (b.) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the 

armed force of one of the parties.”).

121 See also LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 656 (§296) (“International Law is primarily a law 

between States. For this reason the rights and duties of neutrality are principally those of neutral States as such. ... 

At the same time, International Law renders unlawful certain activities of nationals of neutral States, like carriage of 

contraband or breach of blockade, without, however, imposing upon these States the duty to prevent or penalise such 

acts. These are punished by the belligerent against whom they are directed.”); GREENSPAN, THE MODERN LAW OF 

LAND WARFARE 571 (“A neutral subject who indulges in partisan activity in favor of a belligerent usually loses the 

benefit of his neutral character in relation to the belligerent on the other side, as will be seen shortly. Therefore, 

while a neutral person is free to assist a belligerent, he generally does so at his own risk.”).
968

belligerent State could be for the same act.122

Although a neutral person who takes certain actions may be liable to treatment as an 

unprivileged belligerent, the forfeiture of neutral protections does not necessarily result in that 

person being regarded as an unprivileged belligerent. 

For example, if a national of a neutral State is a member of the armed forces of a 

belligerent State, that person would be entitled to all the protections that a member of the armed 

forces of the belligerent State would enjoy under the law of war, such as POW status if that 

person falls into the power of the enemy during international armed conflict.

123

15.6.2.2 Acts Not Considered in Favor of a Belligerent That Would Forfeit 

Protections of Neutral Status. The followings acts would not be considered as committed in 

favor of a belligerent State that would forfeit a neutral person’s protections of neutral status:

• furnishing supplies or making loans to a belligerent State, provided that the person who 

furnishes the supplies or who makes the loans lives neither in the territory of the

belligerent State nor in the territory occupied by it, and that the supplies do not come 

from these territories; or

• rendering services in matters of police or civil administration.124

In addition, merely expressing sympathy for a belligerent’s cause would not cause a 

person to forfeit one’s neutral character, although incitement or recruitment would be treated 

differently.

Certain types of humanitarian assistance under the 1949 Geneva Conventions would also 

not be regarded as a violation of neutrality by the persons engaging in those activities.125

15.6.3 Neutral Persons in the Home Territory of a Belligerent. Neutral persons in the 

home territory of a belligerent State are not “protected persons” under the GC while their State of 

nationality has normal diplomatic relations with the belligerent State.126

In general, neutral persons residing permanently in the territory of a belligerent State, 

 122 HAGUE V art. 17 (“In such a case, the neutral shall not be more severely treated by the belligerent as against 

whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.”).

123 Refer to § 4.4.4.1 (Nationals of Neutral States in Enemy Forces).

124 HAGUE V art. 18 (“The following acts shall not be considered as committed in favour of one belligerent in the 

sense of Article 17, letter (b): (a.) Supplies furnished or loans made to one of the belligerents, provided that the 

person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the 

territory occupied by him, and that the supplies do not come from these territories; (b.) Services rendered in matters 

of police or civil administration.”).

125 Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country); § 7.12.1.3 (Authorized Neutral Civilian 

Hospital Ships).

126 Refer to § 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic 

Representation Exists).
969

whether protected persons or not, are to a great extent regarded, both by that belligerent and the 

opposing side, like other residents of that territory, so long as they remain there.127 By contrast, 

the neutral person who is a transient visitor in the territory of a belligerent is provided particular 

respect, so far as the hazards of war permit, and provided that the person’s actions are consistent 

with that person’s neutral character.128

15.6.4 Neutral Persons Resident in Occupied Territory. Neutral persons resident in 

occupied territory are not entitled to claim different treatment, in general, from that accorded the 

other inhabitants.129 They must refrain from all participation in the war and from all hostile acts, 

and must observe strictly the rules of the Occupying Power.

130

All nationals of neutral States, whether resident in or temporarily visiting an occupied 

territory, may be punished for offenses committed by them to the same extent and in the same 

manner as enemy nationals.131 In addition, it may be possible to extradite nationals of neutral 

States who have committed offenses to their home States for prosecution. If nationals of neutral 

States are not “protected persons,” they may be deported or expelled for just cause.132 

In the event that such a person is arrested, suspicions must be verified by a serious 

inquiry, and the arrested neutral person must be given an opportunity to present a defense, and to 

communicate with his or her national consul if requested.

133 In addition, the minimum standards 

 127 GREENSPAN, THE MODERN LAW OF LAND WARFARE 575 (“In general, neutrals residing permanently in the 

territory of a belligerent, whether protected persons or not, are to a great extent regarded, both by that belligerent 

and the opposing side, as sharing the lot and character of the people among whom they reside, so long as they 

continue there.”).

128 GREENSPAN, THE MODERN LAW OF LAND WARFARE 577-78 (“The neutral who is merely a transient visitor in the 

territory of a belligerent falls into a different category from the resident neutral; provided, of course, that his actions 

are consistent with his neutral character. Both his person and his property are entitled to particular respect from the 

belligerents, so far as the hazards of war permit.”).

129 1956 FM 27-10 (Change No. 1 1976) ¶548 (“Neutral persons resident in occupied territory are not entitled to 

claim different treatment, in general, from that accorded the other inhabitants.”).

130 1956 FM 27-10 (Change No. 1 1976) ¶548 (“They must refrain from all participation in the war, from all hostile 

acts, and observe strictly the rules of the occupant.”).

131 1956 FM 27-10 (Change No. 1 1976) ¶550 (“All nationals of neutral powers, whether resident or temporarily 

visiting an occupied territory, may be punished for offenses committed by them to the same extent and in the same 

manner as enemy nationals.”).

132 1958 UK MANUAL ¶691 note 1 (“If such neutrals are not ‘protected persons’ then they may be expelled or 

deported for just cause by the military or civil authorities of the Occupant.”).

133 In the Matter of the Claim of Madame Chevreau Against the United Kingdom, Arbitral Award, reprinted in 27 

AJIL 153, 160 (1933) (“The principles involved in the present case which, among others, have been applied by 

different international commissions, may be briefly stated as follows: (1) The arbitrary arrest, detention or 

deportation of a foreigner may give rise to a claim in international law. But the claim is not justified if these 

measures were taken in good faith and upon reasonable suspicion, especially if a zone of military operations is 

involved. (2) In cases of arrest, suspicions must be verified by a serious inquiry, and the arrested person given an 

opportunity to defend himself against the suspicions directed against him, and particularly to communicate with the 

consul of his country if he requests it. If there is no inquiry, or if it is unnecessarily delayed, or, in general, if the 

detention is unnecessarily prolonged, there is ground for a claim.”).
970

for humane treatment and for detention procedures would be applicable.134

15.6.4.1 Protected Person Status of Neutral Persons in Occupied Territory. 

Neutral persons, among other persons, who find themselves in the hands of an Occupying Power

generally would be regarded as “protected persons” under the GC.135 Neutral persons who travel 

to occupied territory for the purpose of fighting the Occupying Power are not regarded as 

“protected persons” under the GC.136

15.6.4.2 Diplomatic Agents and Consular Personnel in Occupied Territory. 

Diplomatic agents of neutral States must be treated with all courtesy and must be permitted such 

freedom of action as it is possible to allow, with due regard to the necessities of the war. The 

same is true of consular personnel of neutral States, except those who are enemy nationals.137

15.7 NEUTRAL WATERS

Belligerent States are forbidden to use a neutral State’s ports and waters as a base of 

naval operations against their adversaries, and in particular to erect or employ any apparatus for 

communicating with belligerent forces on land or sea.138 For example, a belligerent State’s 

warships may not make use of a neutral State’s ports, roadsteads, and territorial waters to 

replenish or increase their supplies of war materials or their armaments, or for completing their 

crews.139

 134 Refer to § 8.2 (Humane Treatment of Detainees); § 8.14 (Procedures for Detention).

135 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the 

Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 45 (“Second, 

‘territory of a belligerent State’ might refer to the home territory of the party to the conflict in whose hands the 

citizen of the neutral State finds himself. As applied to the armed conflict with Iraq, this interpretation would deny 

‘protected person[]’ status to citizens of neutral States who find themselves in the territory of the United States, but 

not to those who find themselves in occupied Iraq. We conclude that the second interpretation is correct.”) 

(amendment in original). See also II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 793 

(“A particularly delicate question was that of the position of the nationals of neutral States. The Drafting Committee 

had made a distinction between the position of neutrals in the home territory of belligerents and that of neutrals in 

occupied territory. In the former case, neutrals were protected by normal diplomatic representation; in the latter 

case, on the other hand, the diplomatic representatives concerned were only accredited to the Government of the 

occupied States, whereas authority rested with the Occupying Power. It followed that all neutrals in occupied 

territory must enjoy protection under the Convention, while neutrals in the home territory of a belligerent only 

required such protection if the State whose nationals they were had no normal diplomatic representation in the 

territory in question. The text drawn up by the Drafting Committee had taken account of the above 

considerations.”).

136 Refer to § 10.3.2.1 (“Find Themselves”).

137 1956 FM 27-10 (Change No. 1 1976) ¶549 (“Diplomatic agents of neutral States must be treated with all courtesy 

and must be permitted such freedom of action as it is possible to allow, with due regard to the necessities of the war. 

The same is true of consular personnel of neutral States, except those who are enemy nationals.”).

138 HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations 

against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of 

communicating with the belligerent forces on land or sea.”).

139 HAGUE XIII art. 18 (“Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for 

replenishing or increasing their supplies of war material or their armament, or for completing their crews.”).
971

Belligerent State forces must refrain from acts of hostility in neutral waters, including the 

exercise of visit and search.

140 

The neutral State has an affirmative duty to police its waters to prevent violations of 

neutrality in its waters.

141 If a neutral State is unable or unwilling to detect and expel belligerent 

forces unlawfully present in its waters, the opposing belligerent State may undertake such selfhelp enforcement actions as may be necessary to terminate the violation of neutrality.

15.7.1 Waters That Are Considered Neutral. The waters that are subject to the 

sovereignty of a neutral State are considered neutral. Neutral waters may be understood to 

include the following waters belonging to a neutral State: 

• the territorial sea, including up to 12 nautical miles;142

• archipelagic waters;143 and 

• ports, roadsteads, and internal waters.144

For the purpose of applying the law of neutrality, all ocean areas not subject to the 

territorial sovereignty of any State (i.e., all waters seaward of neutral States’ territorial seas) are 

not considered neutral waters. The following waters are not considered neutral waters: 

• a neutral State’s contiguous zone;145

• a neutral State’s exclusive economic zone;146 and

• the high seas.147

15.7.2 A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its 

Waters. A neutral State may adopt laws or regulations governing the presence of belligerent 

warships and their prizes in its waters.

A neutral State must apply impartially to opposing belligerents the conditions, 

restrictions, or prohibitions made by the neutral State in regard to the admission into its ports, 

 140 Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

141 Hague XIII art. 25 (“A neutral Power is bound to exercise such surveillance as the means at its disposal allow to 

prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.”).

142 Refer to § 13.2.2.2 (Territorial Seas).

143 Refer to § 13.2.2.3 (Archipelagic Waters).

144 Refer to § 13.2.2.1 (Internal Waters).

145 Refer to § 13.2.3.2 (Contiguous Zones).

146 Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)).

147 Refer to § 13.2.3.4 (High Seas).
972

roadsteads, or territorial waters, of belligerent warships or of their prizes.148 Nevertheless, a 

neutral Power may forbid a belligerent vessel that has failed to conform to the orders and 

regulations made by it, or that has violated neutrality, to enter its ports or roadsteads.149

15.7.3 24-Hour Limit on Stay of Belligerent Warships in Neutral Waters. In the absence 

of special provisions to the contrary in the legislation of a neutral State, a belligerent State’s 

warships are generally prohibited from remaining in that neutral State’s ports, roadsteads, or 

territorial waters for more than 24 hours.150

A belligerent warship may not prolong its stay in a neutral port beyond the permissible 

time except on account of damage or stress of weather. It must depart as soon as the cause of the 

delay is at an end.151

The regulations as to the question of the length of time that these vessels may remain in 

neutral ports, roadsteads, or waters, do not apply to warships devoted exclusively to religious, 

scientific, or philanthropic purposes.152 Warships engaged in the collection of scientific data of 

potential military application would not be considered to be devoted exclusively to scientific 

purposes and would not be exempt.153

15.7.3.1 Notification to Belligerent Warships to Depart a Neutral State’s Waters 

Upon Outbreak of Hostilities. If a neutral State, which has been informed of the outbreak of 

hostilities, learns that a belligerent State’s warship is in one of the neutral State’s ports or 

roadsteads, or in its territorial waters, it must notify such warship to depart within 24 hours or 

 148 HAGUE XIII art. 9 (“A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or 

prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent warships or of their prizes.”).

149 HAGUE XIII art. 9 (“Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to 

the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads.”).

150 HAGUE XIII art. 12 (“In the absence of special provisions to the contrary in the legislation of a neutral Power, 

belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for 

more than twenty-four hours, except in cases covered by the present Convention.”); 1928 PAN AMERICAN 

NEUTRALITY CONVENTION art. 5 (“Belligerent warships are forbidden to remain in the ports or waters of a neutral 

state more than twenty-four hours. This provision will be communicated to the ship as soon as it arrives in port or in 

the territorial waters, and if already there at the time of the declaration of war, as soon as the neutral state becomes 

aware of this declaration.”).

151 HAGUE XIII art. 14 (“A belligerent war-ship may not prolong its stay in a neutral port beyond the permissible 

time except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at an 

end.”). See also 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 5 (“A ship may extend its stay in port more 

than twenty-four hours in case of damage or bad conditions at sea, but must depart as soon as the cause of the delay 

has ceased. When, according to the domestic law of the neutral state, the ship may not receive fuel until twenty-four 

hours after its arrival in port, the period of its stay may be extended an equal length of time.”).

152 HAGUE XIII art. 14 (“The regulations as to the question of the length of time which these vessels may remain in 

neutral ports, roadsteads, or waters, do not apply to war-ships devoted exclusively to religious, scientific, or 

philanthropic purposes.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (“Vessels used 

exclusively for scientific, religious, or philanthropic purposes are exempted from the foregoing provisions.”).

153 2007 NWP 1-14M ¶7.3.2.1 (“Warships engaged in the collection of scientific data of potential military 

application are not exempt.”); 1997 NWP 9 ¶7.3.2.1 (same); 1989 NWP 9 ¶7.3.2.1 (“Vessels engaged in the 

collection of scientific data of potential military application are not exempt”).
973

within the time prescribed by local regulations.154

15.7.4 Passage of Belligerent Warships and Prizes Through a Neutral State’s Waters. A 

neutral State may allow the passage of belligerent warships and prizes through its waters. The 

neutrality of a State is not affected by the mere passage through its territorial waters of warships 

or prizes belonging to belligerents.155

A neutral State may, on a nondiscriminatory basis, suspend passage of belligerent 

warships and prizes through its waters (with the exception of international straits and 

archipelagic sea lanes).

156

Although the general practice has been to close neutral territorial seas to belligerent 

submarines, a neutral State may elect to allow passage of submarines provided they do not 

engage in hostile acts while in territorial waters.

157

Neutral States customarily authorize passage through their territorial sea of ships carrying 

the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed to 

belligerent vessels.158

15.7.4.1 Right of Entry in Distress for Belligerent Vessels. Belligerent vessels, 

including warships, have a right of entry in distress whether caused by force majeure or damage 

resulting from enemy action.159 The right of entry in distress does not prejudice the measures 

that a neutral State may take after entry has been granted, such as measures to intern the ship if it 

 154 HAGUE XIII art. 13 (“If a Power which has been informed of the outbreak of hostilities learns that a belligerent 

war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within 

twenty-four hours or within the time prescribed by local regulations.”).

155 HAGUE XIII art. 10 (“The neutrality of a Power is not affected by the mere passage through its territorial waters 

of war-ships or prizes belonging to belligerents.”).

156 2007 NWP 1-14M ¶7.3.4 (“A neutral nation may, on a nondiscriminatory basis, suspend passage of belligerent 

warships and prizes through its territorial seas, except in international straits.”); 1997 NWP 9 ¶7.3.4 (same); 1989 

NWP 9 ¶7.3.4.1 (“A neutral nation may, on a nondiscriminatory basis, close its territorial waters, except in 

international straits, to belligerent vessels.”).

157 2007 NWP 1-14M ¶7.3.4 (“Although the general practice has been to close neutral territorial seas to belligerent 

submarines, a neutral nation may elect to allow passage of submarines.”); 1997 NWP 9 ¶7.3.4 (same); 1989 NWP 9 

¶7.3.4.1 (“Although the general practice has been to close neutral territorial waters to belligerent submarines, a 

neutral nation may elect to allow passage of submarines, either surfaced or submerged.”).

158 2007 NWP 1-14M ¶7.3.4 (“Neutral nations customarily authorize passage through their territorial sea of ships 

carrying the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed to belligerent 

vessels.”); 1997 NWP 9 ¶7.3.4 (same); 1989 NWP 9 ¶7.3.4.1 (same).

159 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 240 (“It is generally recognized, however, that 

international practice requires that exception be made in the neutrality regulations of states to permit the entry of

belligerent warships in distress. Entry in distress may result from weather or sea conditions, but it may also result 

from damage incurred in battle. Even pursuit by the enemy appears to give belligerent warships a right of entry. 

But this right of entry in distress cannot be held to prejudice the measures a neutral state may take once admission 

into its waters and ports has been granted.”).
974

remains when it is not entitled to remain.

160

15.8 PASSAGE OF BELLIGERENT VESSELS AND AIRCRAFT THROUGH INTERNATIONAL STRAITS AND 

ARCHIPELAGIC SEA LANES

Although a neutral State may suspend the passage of belligerent warships through its 

waters, a neutral State may not suspend, hamper, or otherwise impede the access of belligerent 

vessels and aircraft through international straits overlapped by neutral waters or archipelagic sea 

lanes of a neutral State.

Belligerent vessels and aircraft transiting through international straits overlapped by 

neutral waters or archipelagic sea lanes of a neutral State must adhere to certain requirements.

15.8.1 Passage of Belligerent Vessels and Aircraft Through International Straits 

Overlapped by Neutral Waters. All ships and aircraft (including those belonging to belligerent 

and neutral States) have a right of transit passage through, over, and under all straits used for 

international navigation.161 Such passage by vessels carrying contraband of war or by belligerent 

warships is not regarded as compromising the neutrality of the State with water overlapping such 

straits.162 Neutral States bordering international straits may not suspend, hamper, or otherwise 

impede the right of transit passage through international straits.163 

Belligerent forces transiting through international straits overlapped by neutral waters 

must proceed without delay, must refrain from the threat or use of force against the neutral State, 

and must otherwise refrain from acts of hostility and other activities not incident to their 

transit.164 For example, belligerent forces must refrain from exercising the right of visit and 

 160 Refer to § 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a 

Neutral Port).

161 See 2007 NWP 1-14M ¶7.3.6 (“Customary international law as reflected in the 1982 LOS Convention provides 

that belligerent and neutral surface ships, submarines, and aircraft have a right of transit passage through, over, and 

under all straits used for international navigation.”). Consider LOS CONVENTION art. 38(1) (“In straits referred to in 

article 37 [i.e., straits that are used for international navigation between one part of the high seas or an exclusive 

economic zone and another part of the high seas or an exclusive economic zone], all ships and aircraft enjoy the 

right of transit passage, which shall not be impeded.”).

162 The S.S. Wimbledon, (United Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, 

at 28 (“The precedents therefore afforded by the Suez and Panama Canals invalidate in advance the argument that 

Germany's neutrality would have necessarily been imperilled [sic] if her authorities had allowed the passage of the 

‘Wimbledon’ through the Kiel Canal, because that vessel was carrying contraband of war consigned to a state then 

engaged in an armed conflict. Moreover they are merely illustrations of the general opinion according to which 

when an artificial waterway connecting two open seas has been permanently dedicated to the use of the whole 

world, such waterway is assimilated to natural straits in the sense that even the passage of a belligerent man-of-war 

does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.”).

163 2007 NWP 1-14M ¶7.3.6 (“Neutral nations cannot suspend, hamper, or otherwise impede this right of transit 

passage through international straits.”). Consider LOS CONVENTION art. 44 (“States bordering straits shall not 

hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over 

the strait of which they have knowledge. There shall be no suspension of transit passage.”).

164 2007 NWP 1-14M ¶7.3.6 (“Belligerent forces transiting through international straits overlapped by neutral waters 

must proceed without delay, must refrain from the threat or use of force against the neutral nation, and must 

otherwise refrain from acts of hostility and other activities not incident to their transit.”). Consider LOS
975

search while transiting through international straits that are overlapped by neutral waters.

165

Belligerent forces in transit may, however, take defensive measures consistent with their 

security, including the launching and recovery of military devices, screen formation steaming, 

and acoustic and electronic surveillance, and may respond in self-defense to a hostile act or a 

demonstration of hostile intent.166

15.8.2 Passage of Belligerent Vessels and Aircraft Through Archipelagic Sea Lanes of a 

Neutral State. Belligerent ships or aircraft, including surface warships, submarines, and military 

aircraft, retain the right of unimpeded archipelagic sea167 lanes passage through, under, and over 

neutral archipelagic sea lanes.168 Neutral archipelagic States shall not suspend or hamper the 

right of transit passage through their archipelagic sea lanes.169

Belligerent State forces exercising the right of archipelagic sea lanes passage must refrain 

from acts of hostility and other activities not incident to their transit.170 For example, belligerent 

State forces must refrain from exercising the right of visit and search while exercising the right 

of archipelagic sea lanes passage.

171 Belligerent State forces exercising the right of archipelagic 

sea lanes passage may, however, engage in those activities that are incident to their normal mode 

of continuous and expeditious passage, and that are consistent with their security, including 

formation steaming, acoustic and electronic surveillance, and the launching and recovery of 

 

CONVENTION art. 39(1) (“Ships and aircraft, while exercising the right of transit passage, shall: (a) proceed without 

delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial 

integrity or political independence of States bordering the strait, or in any other manner in violation of the principles 

of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those 

incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or 

by distress.”).

165 Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

166 2007 NWP 1-14M ¶7.3.6 (“Belligerent forces in transit may, however, take defensive measures consistent with 

their security, including the launching and recovery of military devices, screen formation steaming, and acoustic and 

electronic surveillance, and may respond in self-defense to a hostile act or hostile intent.”).

167 Refer to § 13.2.2.3 (Archipelagic Waters).

168 2007 NWP 1-14M ¶7.3.7 (“Belligerent ships or aircraft, including surface warships, submarines and military 

aircraft, retain the right of unimpeded archipelagic sea lanes passage through, under, and over neutral archipelagic

sea lanes.”). Consider LOS CONVENTION art. 53(2) (“All ships and aircraft enjoy the right of archipelagic sea lanes 

passage in such sea lanes and air routes.”).

169 Consider LOS CONVENTION art. 54 (“Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes 

passage.”); LOS CONVENTION art. 44 (“States bordering straits shall not hamper transit passage and shall give 

appropriate publicity to any danger to navigation or overflight within or over the strait of which they have 

knowledge. There shall be no suspension of transit passage.”).

170 Consider LOS CONVENTION art. 54 (“Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes 

passage.”); LOS CONVENTION art. 39 (“Ships and aircraft, while exercising the right of transit passage, shall: (a) 

proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, 

territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the 

principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other 

than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force 

majeure or by distress.”).

171 Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).
976

military devices.172

15.9 ADDITIONAL RULES APPLICABLE TO NEUTRAL PORTS, ROADSTEADS, AND INTERNAL 

WATERS

In addition to the general rules applicable to neutral waters,173 certain other rules apply to 

neutral ports, roadsteads, and internal waters.

15.9.1 Maximum Number of Belligerent Warships in One Neutral Port or Roadstead. In 

the absence of special provisions to the contrary in the legislation of a neutral State, the 

maximum number of warships belonging to a belligerent that may be in one of the ports or 

roadsteads of that neutral State simultaneously is three.174

15.9.2 Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to 

Remain in a Neutral Port. If, notwithstanding the notification of the neutral State, a belligerent 

ship of war does not leave a port where it is not entitled to remain, the neutral State is entitled to 

take such measures as it considers necessary to render the ship incapable of taking to sea during 

the war, and the commanding officer of the ship must facilitate the execution of such 

measures.175 

When a belligerent ship is detained by a neutral Power, the officers and crew are likewise 

 172 2007 NWP 1-14M ¶7.3.7 (“Belligerent forces exercising the right of archipelagic sea lanes passage may engage 

in those activities that are incident to their normal mode of continuous and expeditious passage and are consistent 

with their security, including formation steaming, acoustic and electronic surveillance, and the launching and 

recovery of military devices.”). Consider LOS CONVENTION art. 53(3) (“Archipelagic sea lanes passage means the 

exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for 

the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive 

economic zone and another part of the high seas or an exclusive economic zone.”).

173 Refer to § 15.7 (Neutral Waters).

174 See Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General 

Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 

(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist 

certain standards recognized by the American Republics applicable in these circumstances and that in accordance 

with them they: ... (d) May determine, with regard to belligerent warships, that not more than three at a time be 

admitted in their own ports or waters and in any case they shall not be allowed to remain for more than twenty-four 

hours. Vessels engaged exclusively in scientific, religious or philanthropic missions may be exempted from this 

provision, as well as those which arrive in distress.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 7 (“In the 

absence of a special provision of the local legislation, the maximum number of ships of war of a belligerent which 

may be in a neutral port at the same time shall be three.”); HAGUE XIII art. 15 (“In the absence of special provisions 

to the contrary in the legislation of a neutral Power, the maximum number of war-ships belonging to a belligerent 

which may be in one of the ports or roadsteads of that Power simultaneously shall be three.”).

175 HAGUE XIII art. 24 (“If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not 

leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers 

necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must 

facilitate the execution of such measures.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 6 (“The ship 

which does not conform to the foregoing rules may be interned by order of the neutral government. A ship shall be 

considered as interned from the moment it receives notice to that effect from the local neutral authority, even though 

a petition for reconsideration of the order has been interposed by the transgressing vessel, which shall remain under 

custody from the moment it receives the order.”).
977

detained.

176 

The officers and crew thus detained may be left in the ship or kept either on another 

vessel or on land, and may be subjected to the measures of restriction that may appear necessary 

to impose upon them. A sufficient number of persons for looking after the vessel must, however, 

always be left on board. The officers may be left at liberty on giving their word not to quit the 

neutral territory without permission.177

15.9.3 Departure of Belligerent Warships in Relation to the Departure of Ships of the 

Opposing Belligerent. When warships of opposing belligerent States are present simultaneously 

in a neutral State’s port or roadstead, a period of not less than 24 hours must elapse between the 

departure of the respective enemy warships.178 The order of departure is determined by the order 

of arrival, unless the ship that arrived first is in such circumstances that an extension of its stay is 

permissible.

179

A belligerent warship may not leave a neutral port or roadstead until 24 hours after the

departure of a merchant ship flying the flag of its adversary.180

15.9.4 Supplies and Repairs of Belligerent Warships in Neutral Ports and Roadsteads. 

15.9.4.1 Food and Fuel for Belligerent Warships in Neutral Ports and 

Roadsteads. A neutral State has discretion to issue and implement regulations regarding the 

supply of food and supplies for belligerent warships in its territory.181 However, such 

regulations must be applied impartially among belligerent States.182 

 176 HAGUE XIII art. 24 (“When a belligerent ship is detained by a neutral Power, the officers and crew are likewise 

detained.”).

177 HAGUE XIII art. 24 (“The officers and crew thus detained may be left in the ship or kept either on another vessel 

or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them. 

A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may 

be left at liberty on giving their word not to quit the neutral territory without permission.”). Refer to § 15.16.4

(Parole of Belligerent Personnel Interned in Neutral Territory).

178 See 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (“A ship of war may not depart from a neutral port 

within less than twenty-four hours after the departure of an enemy warship.”); HAGUE XIII art. 16 (“When war-ships 

belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than 

twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of 

the ship belonging to the other.”).

179 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (“The one entering first shall depart first, unless it is in 

such condition as to warrant extending its stay.”); HAGUE XIII art. 16 (“The order of departure is determined by the 

order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible.”).

180 HAGUE XIII art. 16 (“A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours 

after the departure of a merchant-ship flying the flag of its adversary.”).

181 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 10 (“Belligerent warships may supply 

themselves with fuel and stores in neutral ports, under the conditions especially established by the local authority 

and in case there are no special provisions to that effect, they may supply themselves in the manner prescribed for 

provisioning in time of peace.”).

182 Refer to § 15.7.2 (A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its Waters).
978

A belligerent State’s warships may take on food supplies and provisions in a neutral 

State’s ports and roadsteads, but only to bring up their supplies to the peacetime standard.183 

Similarly, a belligerent State’s warship may only take on sufficient fuel to enable it to 

reach the nearest port in its own country.184 The belligerent State’s warship may, however, fill 

up its bunkers built to carry fuel when the neutral State has adopted this method of determining 

the amount of fuel to be supplied.185

15.9.4.2 Repairs of Belligerent Warships in a Neutral State’s Ports and 

Roadsteads. A belligerent State’s warships may only carry out such repairs in a neutral State’s 

ports and roadsteads as are absolutely necessary to render the warships seaworthy; they may not 

add to or repair weapons systems, or enhance any other aspect of their war fighting capability.186 

The neutral State shall decide what repairs are necessary to restore seaworthiness; repairs must 

be accomplished with the least possible delay.187

If the 1928 Pan American Maritime Neutrality Convention is applicable, then damage 

found to have been produced by the enemy’s fire must not be repaired.188 However, whether 

such repairs are prohibited by customary international law is less clear.189 Some States have 

allowed such repairs provided they are limited to rendering the ship sufficiently seaworthy to 

continue its voyage safely.

190

 183 HAGUE XIII art. 19 (“Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their 

supplies to the peace standard.”).

184 HAGUE XIII art. 19 (“Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port 

in their own country.”).

185 HAGUE XIII art. 19 (“They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral 

countries which have adopted this method of determining the amount of fuel to be supplied.”).

186 HAGUE XIII art. 17 (“In neutral ports and roadsteads belligerent war-ships may only carry out such repairs as are 

absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force.”); 

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (“Damaged belligerent ships shall not be 

permitted to make repairs in neutral ports beyond those that are essential to the continuance of the voyage and which 

in no degree constitute an increase in its military strength.”).

187 HAGUE XIII art. 17 (“The local authorities of the neutral Power shall decide what repairs are necessary, and these 

must be carried out with the least possible delay.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 

9 (“The neutral state shall ascertain the nature of the repairs to be made and will see that they are made as rapidly as 

possible.”).

188 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (“Damages which are found to have been 

produced by the enemy’s fire shall in no case be repaired.”).

189 See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 244-45 (“But it is more than doubtful that the law 

presently forbids the repair of battle damage in neutral ports, and, in fact, some states when neutral still allow such 

repairs.”).

190 For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 245 footnote 2 (“As illustrated by the 

incident involving the German battleship Admiral Graf Spee. See Hackworth, op. cit., Vol. VII, pp. 450-1. On 

December 13, 1939, the Graf Spee entered the Uruguayan port of Montevideo, following an engagement with 

British naval forces. A request was made to the Uruguayan authorities to permit the Graf Spee to remain fifteen 

days in port in order to repair damages suffered in battle and to restore the vessel's navigability. The Uruguayan 

authorities granted a seventy-two hour period of stay. Shortly before the expiration of this period the Graf Spee left 
979

A belligerent warship damaged by enemy fire that will not (or cannot) be put to sea once 

the lawful period of stay has expired must be interned.

191

15.9.5 Prizes in Neutral Ports or Roadsteads. A prize (i.e., a captured neutral or enemy 

merchant ship) may only be brought into a neutral port or roadstead because of unseaworthiness, 

stress of weather, or want of fuel or provisions.

192 It must leave as soon as such circumstances 

that justified its entry cease.193 Neutral ports may not be used as harbors of safety in which 

prizes may be kept indefinitely.194

If the prize does not leave as soon as such circumstances that justified it entry cease, the 

neutral State must order the prize to leave at once, and should it fail to do so, the neutral State 

must employ the means at its disposal to release it with its previous officers and crew, and to 

intern the prize crew.195

If a prize is brought into a neutral State’s port under circumstances other than because of 

unseaworthiness, stress of weather, or want of fuel or provisions, the neutral State must release 

 

Montevideo and was destroyed by its own crew in the Rio de la Plata. The British Government, while not insisting 

that Article 17 of Hague XIII clearly prohibited the repair of battle damage, did point to the widespread practice of 

states when neutral in forbidding the repair of battle damage in their ports. In accordance with this practice it was 

suggested that the Graf Spee’s period of stay be limited to twenty-four hours. Uruguay maintained, however, that 

the scope of the neutral's duty required it only to prevent those repairs that would serve to augment the fighting force 

of a vessel but not repairs necessary for safety of navigation.—The incident is noteworthy as an example of the 

extent to which belligerents seemingly can make use of neutral ports without violating the prohibition against using 

neutral territory as a base of naval operations.”).

191 Refer to § 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a 

Neutral Port).

192 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“Prizes cannot be taken to a neutral port 

except in case of unseaworthiness, stress of weather, or want of fuel or provisions.”); HAGUE XIII art. 21 (“A prize 

may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or 

provisions.”).

193 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“When the cause has disappeared, the prizes 

must leave immediately;”); HAGUE XIII art. 21 (“It must leave as soon as the circumstances which justified its entry 

are at an end.”).

194 The S.S. Appam, 243 U.S. 124, 148-49 (1917) (“It is familiar international law that the usual course after the 

capture of the Appam would have been to take her into a German port, where a prize court of that nation might have 

adjudicated her status, and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel 

was neither taken to a German port nor to the nearest port accessible of a neutral power, but was ordered to, and did, 

proceed over a distance of more than 3,000 miles, with a view to laying up the captured ship in an American port. It 

was not the purpose to bring the vessel here within the privileges universally recognized in international law -- i.e., 

for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as the 

cause of such entry was satisfied or removed. ... The principles of international law recognized by this government, 

leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use 

were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by 

one of the belligerents, might be safely brought and indefinitely kept.”).

195 HAGUE XIII art. 21 (“If it does not [leave], the neutral Power must order it to leave at once; should it fail to obey, 

the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize 

crew.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“if none of the indicated conditions 

exist, the state shall suggest to them that they depart, and if not obeyed shall have recourse to the means at its 

disposal to disarm them with their officers and crew, or to intern the prize crew placed on board by the captor.”).
980

the prize.196 The prize crew should be interned and the vessel restored to its former crew.197

15.9.5.1 Article 23 of Hague XIII – Prizes Sequestrated Pending Prize Court 

Decision. Article 23 of Hague XIII permits a neutral State to allow prizes to enter its ports and 

roadsteads when they are brought there to be sequestrated pending the decision of a prize 

court.198 However, the United States ratified Hague XIII subject to a reservation to Article 23.199

15.10 NEUTRAL AIRSPACE

In general, belligerent military aircraft may not enter neutral airspace except to address 

violations of neutrality by enemy forces when the neutral State is unwilling or unable to address 

such violations.

15.10.1 Airspace That Is Considered Neutral. The airspace over a neutral State’s land 

territory and the neutral State’s territorial and archipelagic waters is subject to the sovereignty of 

the neutral State and, thus, is considered neutral.

200

The airspace over international waters, including the airspace over a neutral State’s 

contiguous zone and exclusive economic zone, is not considered neutral airspace.201

15.10.2 Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace. 

Belligerent military aircraft are forbidden to enter neutral airspace, subject to certain 

exceptions.202

 196 HAGUE XIII art. 22 (“A neutral Power must, similarly, release a prize brought into one of its ports under 

circumstances other than those referred to in Article 21.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 18 

(“Outside of the cases provided for in Article 17, the neutral state must release the prizes which may have been 

brought into its territorial waters.”).

197 Press Release, Oct. 28, 1939, German Capture of the American Steamer City of Flint, 1 DEPARTMENT OF STATE 

BULLETIN 429, 432 (“A prize crew may take a captured ship into a neutral port without internment only in case of 

stress of weather, want of fuel and provisions, or necessity of repairs. In all other cases, the neutral is obligated to 

intern the prize crew and restore the vessel to her former crew.”).

198 HAGUE XIII art. 23 (“A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy 

or not, when they are brought there to be sequestrated pending the decision of a Prize Court. It may have the prize 

taken to another of its ports. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying 

ship. If the prize is not under convoy, the prize crew are left at liberty.”).

199 William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (“And whereas 

the Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present 

concurring therein) did advise and consent to the adherence by the United States to the said Convention with the 

reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said 

Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship 

captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of the 

United States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate, 

did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;”).

200 Refer to § 14.2.1.1 (National Airspace).

201 Refer to § 14.2.1.2 (International Airspace).

202 Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General 

Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 
981

Belligerent military aircraft have the right to pass through international straits overlapped 

by neutral waters and archipelagic sea lanes of a neutral State.

203

Belligerent States’ medical aircraft may enter neutral airspace subject to certain 

conditions.204

Belligerent aircraft in evident distress may be permitted to enter neutral airspace and to 

land in neutral territory under such safeguards as the neutral State may wish to impose. The 

neutral State must require such aircraft to land and must intern both aircraft and crew.205 This 

situation would fall under the general duty of a neutral State with respect to the treatment of 

belligerent State forces that enter, or seek to enter, its territory.206

15.10.3 Duties of Neutral States With Respect to Their Airspace. As with other neutral 

territory, neutral States have an affirmative duty to prevent the violation of their airspace by 

belligerent military aircraft.207 For example, if a belligerent military aircraft enters neutral 

airspace, the neutral State is obliged to use the means at its disposal to require the belligerent 

military aircraft to land within its territory.208 After the aircraft lands, the neutral State must 

 

(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist 

certain standards recognized by the American Republics applicable in these circumstances and that in accordance 

with them they: ... (f) Shall regard as a contravention of their neutrality any flight by the military aircraft of a 

belligerent state over their own territory.”).

203 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea 

Lanes).

204 Refer to § 15.18.2 (Medical Aircraft and Neutral Territory).

205 2007 NWP 1-14M ¶7.3.9 (“Belligerent aircraft in evident distress may be permitted to enter neutral airspace and 

to land in neutral territory under such safeguards as the neutral nation may wish to impose. The neutral nation must 

require such aircraft to land and must intern both aircraft and crew.”). See also SPAIGHT, AIR POWER AND WAR 

RIGHTS 436 (“The case of distress.—It was agreed by the Commission of Jurists of 1922-23 that the obligation to 

prevent the entry of belligerent military aircraft was to be regarded as being subject to the neutral State’s moral duty 

to grant succor to airmen in distress. As already explained, there is, in practice, some difficulty in differentiating 

between cases in which the reason for entry is genuine distress, or some similar cause such as engine failure or 

exhaustion of fuel which might lead to disaster, and those in which there is a deliberate attempt to penetrate in order 

to secure some military advantage or to escape from superior forces. The highest that one can put the neutral 

obligation is that asylum should be granted in all cases of evident distress, so far as the circumstances allow this 

obvious concession to humanitarian claims to be made.”).

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

207 See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 251 (“The practices of states during World Wars 

I and II may be regarded as having firmly established both the right as well as the duty of the neutral state to forbid 

the entrance of belligerent military aircraft into its air space.”); SPAIGHT, AIR POWER AND WAR RIGHTS 420 (“The 

important question whether the laws of neutrality allow belligerent military aircraft to come and go in neutral 

jurisdiction was answered by the practice of 1914-18 with a firm and unmistakable negative. The unanimity of the 

answer was remarkable. All the neutral States who had occasion to decide the question decided it in the same 

general way, and their decision gave rise to no protest on the part of the belligerents concerned, with one single 

exception, which the subsequent action and compliance of the State making it deprived of all its force.”).

208 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 42, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 36 (1938) (“A neutral government must use the means at its disposal to prevent the entry within its 

jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction. A 
982

intern the aircraft and its crew for the duration of the armed conflict. 

If a neutral State is unable or unwilling to prevent the unlawful entry or use of its airspace 

by a belligerent State, the opposing belligerent State’s forces may undertake such self-help 

enforcement measures as the circumstances may require.209 For example, belligerents with 

missile defense capabilities may be justified in intercepting enemy missiles transiting neutral 

airspace if the neutral state cannot, or will not, prevent such airspace incursions.

15.11 BELLIGERENT RIGHT OF ANGARY

The right of angary recognizes the right of belligerents to requisition (upon payment of 

just compensation) neutral property transiently within their territory, or in territory that they have 

occupied, where the property is urgently required for the conduct of the war.210 

15.11.1 Neutral Property Transiently Within Belligerent Jurisdiction. The belligerent 

right of angary applies to property that is transiently within belligerent jurisdiction. For example, 

neutral ships have been subject of the exercise of the right of angary.211

The right of angary does not apply to property of neutral ownership that has acquired 

enemy character.212 

 neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its 

jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.”).

209 Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent 

Violations of Neutrality).

210 GREENSPAN, MODERN LAW OF LAND WARFARE 581 (“The right of angary, an ancient rule of international law, in 

its modern application recognizes the right of belligerents to requisition (upon payment of just compensation) 

neutral ships and other neutral property transiently within their territory, or in territory which they have occupied, 

where the property is urgently required for the conduct of the war.”).

211 For example, Press Release: Swedish Motorship “Kungsholm,” 5 DEPARTMENT OF STATE BULLETIN 519 (Dec. 

13, 1941) (“The United States Government has exercised its right of angary to take over the Swedish motorship 

Kungsholm.”); Woodrow Wilson, Proclamation Concerning the Possession and Utilization of Netherlands Vessels, 

Mar. 20, 1918, reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 259-60 (1918) (“Whereas the law and 

practice of nations accords to a belligerent Power the right in time of military exigency and for purposes essential to 

the prosecution of the war, to take over and utilize neutral vessels lying within its jurisdiction: ... Now therefore I, 

Woodrow Wilson, President of the United States of America, in accordance with international law and practice, and 

by virtue of the Act of Congress aforesaid, and as Commander-in-Chief of the Army and Navy of the United States, 

do hereby find and proclaim that the imperative military needs of the United States require the immediate utilization 

of vessels of Netherlands registry, now lying within the territorial waters of the United States; and I do therefore 

authorize and empower the Secretary of the Navy to take over on behalf of the United States the possession of and to 

employ all such vessels of Netherlands registry as may be necessary for essential purposes connected with the 

prosecution of the war against the Imperial German Government. The vessels shall be manned, equipped, and 

operated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and the 

United States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles 

of international law.”).

212 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 761-62 (§365) (“In case property of subjects of neutral 

States is vested with enemy character, it is not neutral property in the strict sense of the term ‘neutral,’ and all rules 

respecting appropriation, utilization, and destruction of enemy property obviously apply to it. The object of the right 

of angary is, therefore, either such property of subjects of neutral States as retains its neutral character from its 
983

15.11.2 Railway Material Coming From the Territory of a Neutral State. Railway 

material coming from the territory of a neutral State, whether it be the property of that State or of 

companies or private persons, and recognizable as such, shall not be requisitioned or utilized by 

a belligerent State except where and to the extent that it is absolutely necessary.213 It shall be 

sent back as soon as possible to the country of origin.214 A neutral State may likewise, in case of 

necessity, retain and utilize to an equal extent railway material coming from the territory of a 

belligerent State.215 Compensation shall be paid by one party or the other in proportion to the 

railway material used, and to the period of usage.216

Railway materials would include, for example, railroad cars and locomotives.

This rule on railway material has sought to balance between the necessities of war (i.e., 

that such material might be of great military utility) and the interests and rights of neutrals.217 

This rule also reflects a compromise between the different views of States.

218

15.12 NEUTRAL COMMERCE AND CARRIAGE OF CONTRABAND

Although neutral States must not provide war-related goods and services to belligerents, 

 temporary position on belligerent territory, and which therefore is not vested with enemy character, or such neutral 

property on the open sea as has not acquired enemy character.”).

213 HAGUE V art. 19 (“Railway material coming from the territory of neutral Powers, whether it be the property of 

the said Powers or of Companies or private persons, and recognizable as such, shall not be requisitioned or utilized 

by a belligerent except where and to the extent that it is absolutely necessary.”).

214 HAGUE V art. 19 (“It shall be sent back as soon as possible to the country of origin.”).

215 HAGUE V art. 19 (“A neutral Power may likewise, in case of necessity, retain and utilize to an equal extent 

material coming from the territory of the belligerent Power.”).

216 HAGUE V art. 19 (“Compensation shall be paid by one party or the other in proportion to the material used, and to 

the period of usage.”).

217 Antonio S. de Bustamante, The Hague Convention Concerning the Rights and Duties of Neutral Powers and 

Persons in Land Warfare, 2 AJIL, 95, 119 (1908) (“The article in regard to railways – the only article saved in the 

chapter relating to foreign property – is useful to nations with land boundaries and is based on just terms, making the 

best equivalent for the necessities of war and in the interest and right of neutrals. Therefore, its acceptance brings 

great credit upon the delegation of Luxemburg. It is to be observed that the final redaction only relates to railway 

material coming from neutral states, belonging to the said states or to companies or private persons. It has no other 

purpose than to facilitate the return of the compensation or the payment for the use of the cars and locomotives of a 

country which may accidentally enter the other state through the occasions of ordinary traffic.”).

218 See A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES 

CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 294 (1909) (“Article 

19 replaces Article 54 of the Regulations of 1899 and is a compromise between contradictory views. Luxemburg 

and Belgium denied the right of belligerents to requisition and make use of neutral railway materials within their 

territory. Germany and Austria desired to have the right to use it admitted, on the understanding that an indemnity 

was paid for its use after the close of the war. France and Luxemburg as an alternative claimed both an indemnity 

and the right, in case of need, to retain and make use of a corresponding quantity of railway material coming from 

the territory of a belligerent state. The Conference took the middle course, allowing belligerents to requisition and 

use neutral railway material only when absolutely necessary, on condition that it be returned as soon as possible, the 

neutral being given the corresponding right over belligerent material within its territory, compensation to be paid by 

one party to the other in proportion to the material used and the period of use.”).
984

neutral persons are not prohibited from such activity by the law of neutrality.219 The law of 

neutrality’s rules on neutral commerce and the carriage of contraband have sought to balance the 

right of neutral persons to conduct commerce free from unreasonable interference against the 

right of belligerent States to interdict the passage of war materials to the enemy.220

Neutral merchant vessels and civil aircraft engaged in legitimate neutral commerce are 

subject to visit and search, but generally may not be captured or destroyed by belligerent 

forces.221 On the other hand, neutral merchant vessels and civil aircraft are subject to capture 

and other penalties if they engage in certain conduct.

222

Contraband goods are liable to capture at any place beyond neutral territory, if their 

destination is the territory belonging to, or occupied by, an opposing belligerent State.223

15.12.1 Classes of Goods That May Be Considered Contraband. Contraband consists of 

goods that are destined for an enemy of a belligerent and that may be susceptible to use in armed 

conflict.224 Items susceptible to use in armed conflict may be understood to include warsustaining commerce, i.e., commerce that indirectly but effectively supports and sustains the 

belligerent State’s war fighting capability (e.g., imports of raw materials used for the production 

of armaments and exports of products whose proceeds are used by the belligerent State to 

purchase arms and armaments).

225

15.12.1.1 Distinction Between Absolute and Conditional Contraband. Whether 

 219 Refer to § 15.3.2.1 (Duty to Refrain From Providing War-Related Goods and Services to Belligerents).

220 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 182 (“It has long been customary to characterize the 

problems arising with respect to neutral commerce in terms of two conflicting rights: the right of the neutral state to 

insist upon continued freedom of commerce for its subjects despite the existence of war and the right of the 

belligerent to prevent neutral subjects from affording assistance to the military effort of an enemy. More accurate, 

perhaps, is the characterization of these problems in terms of conflicting interests rather than in terms of conflicting 

rights. Whereas the neutral’s interest has been to suffer the least amount of belligerent interference in the trading 

activities of its subjects, the belligerent’s interest has been to prevent neutrals from compensating for an enemy's 

weakness at sea.”).

221 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

222 Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

223 2007 NWP 1-14M ¶7.4.1.2 (“Contraband goods are liable to capture at any place beyond neutral territory, if their 

destination is the territory belonging to or occupied by the enemy.”); 1998 NWP 9 ¶7.4.1.1 (same).

224 2007 NWP 1-14M ¶7.4.1 (“Contraband consists of goods destined for the enemy of a belligerent and that may be 

susceptible to use in armed conflict.”); 1955 NWIP 10-2 ¶631a (“Contraband consists of all goods which are 

destined for an enemy and which may be susceptible of use in war.”).

225 See 2007 NWP 1-14M ¶7.4 (“For purposes of this publication, neutral commerce comprises all commerce 

between one neutral nation and another not involving materials of war or armaments ultimately destined for a 

belligerent nation, and all commerce between a neutral nation and a belligerent that does not involve the carriage of 

contraband or otherwise contribute to the belligerent’s war-fighting/war-sustaining capability.”); 1998 NWP 9 ¶7.4 

footnote 88 (“Although war-sustaining commerce is not subject to precise definition, commerce that indirectly but 

effectively supports and sustains the belligerent's war-fighting capability properly falls within the scope of the term. 

Examples of war-sustaining commerce include imports of raw materials used for the production of armaments and 

exports of products the proceeds of which are used by the belligerent to purchase arms and armaments.”) (internal 

citations omitted).
985

an item is susceptible to use in armed conflict may depend on the character of the item. 

Traditionally, contraband has been divided into two categories, absolute and conditional. 

Absolute contraband consisted of goods whose character is such that they are obviously destined 

for use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional 

contraband consisted of goods equally susceptible to either peaceful or warlike purposes, such as 

foodstuffs, construction materials, and fuel.226

Whether it is possible to distinguish between absolute contraband and conditional 

contraband may depend on the extent to which the enemy government controls imports and the 

scale of the conflict. For example, during World War II, belligerent States largely did not 

distinguish between absolute and conditional contraband because of the involvement of virtually 

the entire population in support of the war effort and because the belligerent States exercised 

governmental control over all imports.227

15.12.1.2 Free Goods That Are Exempt From Capture as Contraband. Certain 

goods qualify as “free goods,” meaning that they are exempt from capture by belligerent States

as contraband even though they are destined for enemy territory. Free goods include the 

following: 

• equipment exclusively intended for the treatment of wounded and sick members of armed 

forces or for the prevention of disease, provided that the particulars regarding the voyage 

of such equipment have been notified to and approved by the opposing belligerent 

State;228

• consignments of certain types of relief goods (e.g., medical supplies and religious 

 226 2007 NWP 1-14M ¶7.4.1 (“Contraband consists of goods destined for the enemy of a belligerent and that may be 

susceptible to use in armed conflict. Traditionally, contraband has been divided into two categories: absolute and 

conditional. Absolute contraband consisted of goods the character of which made it obvious that they were destined 

for use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional contraband consisted of 

goods equally susceptible to either peaceful or warlike purposes, such as foodstuffs, construction materials, and 

fuel.”). See also The Peterhoff, 72 U.S. 28, 52-53 (1867) (“The classification of goods as contraband or not 

contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps 

impracticable; but that which is best supported by American and English decisions may be said to divide all 

merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and 

ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes 

of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. 

Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a 

belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the 

military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to 

seizure and condemnation for violation of blockade or siege.”).

227 2007 NWP 1-14M ¶7.4.1 (“The practice of belligerents during the Second World War collapsed the traditional 

distinction between absolute and conditional contraband. Because of the involvement of virtually the entire 

population in support of the war effort, the belligerents of both sides tended to exercise governmental control over 

all imports. Consequently, it became increasingly difficult to draw a meaningful distinction between goods destined 

for an enemy government and its armed forces and goods destined for consumption by the civilian populace. As a 

result, belligerents treated all imports directly or indirectly sustaining the war effort as contraband without making a 

distinction between absolute and conditional contraband.”).

228 Refer to § 7.13 (Chartered Medical Transport Ships).
986

materials for civilians; clothing and medicine for children under fifteen, expectant 

mothers, and maternity cases), under certain conditions;

229

• certain types of relief consignments intended for the benefit of the population of occupied 

territory;230

• items destined for POWs, including individual parcels and collective relief shipments 

containing food, clothing, medical supplies, religious objects, and educational, cultural,

and athletic articles;231 and

• other goods that are specifically exempted from capture by an applicable treaty or by a 

special arrangement between belligerent States.

232

In practice, neutral States have provided belligerent States of both sides with information 

regarding the nature, timing, and route of shipments of goods constituting exceptions to 

contraband, and obtained approval for their safe conduct and entry into belligerent owned or 

occupied territory.233

15.12.1.3 Contraband Lists. Belligerent States may declare contraband lists at the 

initiation of hostilities to notify neutral States of the type of goods considered to be absolute or 

conditional contraband, as well as those not considered to be contraband at all (i.e., exempt or 

“free goods”). The precise nature of a belligerent State’s contraband list may vary according to 

the circumstances of the conflict.234

 229 Refer to § 5.19.3 (Passage of Relief Consignments).

230 Refer to § 11.17 (Relief).

231 Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

232 For example, HAGUE XI art. 1 (“The postal correspondence of neutrals or belligerents, whatever its official or 

private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is 

detained, the correspondence is forwarded by the captor with the least possible delay.”). See also TUCKER, THE 

LAW OF WAR AND NEUTRALITY AT SEA 91 (“From a formal point of view it must probably be concluded that these

provisions remain binding today upon the parties to Hague Convention XI. On the other hand, it is difficult to avoid 

the conclusion that the events of the two World Wars have reduced the significance of these provisions almost to a 

vanishing point.”).

233 1989 NWP 9 ¶7.4.1.2 (“It is customary for neutral nations to provide belligerents of both sides with information 

regarding the nature, timing, and route of shipments of goods constituting exceptions to contraband and to obtain 

approval for their safe conduct and entry into belligerent owned or occupied territory.”). Compare § 5.19.3.1

(Technical Arrangements for the Passage and Distribution of Relief Consignments).

234 2007 NWP 1-14M ¶7.4.1 (“Belligerents may declare contraband lists at the initiation of hostilities to notify 

neutral nations of the type of goods considered to be absolute or conditional contraband, as well as those not 

considered to be contraband at all (i.e., exempt or “free goods”). The precise nature of a belligerent’s contraband list 

may vary according to the circumstances of the conflict.”); 1955 NWIP 10-2 ¶631b (“BELLIGERENT 

CONTRABAND DECLARATIONS. Upon the initiation of armed conflict, belligerents may declare contraband 

lists, setting forth therein the classification of articles to be regarded as contraband, as well as the distinction to be 

made between goods considered as absolute contraband and goods considered as conditional contraband. The 

precise nature of a belligerent’s contraband list may vary according to the particular circumstances of the armed 

conflict.”).
987

Although there has been no conflict of a similar scale and magnitude to World War II, in 

the years following the conclusion of that conflict State practice indicates that, to the extent 

international law may continue to require publication of contraband lists, the requirement may be 

satisfied by a listing of exempt goods.235

15.12.2 Requirement of Enemy Destination. Contraband goods are liable to capture at 

any place beyond neutral territory if their destination is the territory belonging to, or occupied 

by, the enemy.

15.12.2.1 Ultimate Destination – Doctrine of Continuous Voyage. It is immaterial 

whether the carriage of contraband is direct, involves transshipment, or requires overland 

transport.236 Under the doctrine of continuous voyage, the ultimate destination is determinative, 

and contraband goods may be captured, even if there are neutral ports that are intended to be 

visited between the point of capture and the ultimate destination.237

15.12.2.2 Presumption of Destination of Enemy Territory in Certain Cases. 

When contraband is involved, a destination of enemy-owned or enemy-occupied territory may be 

presumed when: 

• the neutral vessel is to call at an enemy port before arriving at a neutral port for which the 

goods are documented;

• the goods are documented to a neutral port serving as a port of transit to an enemy, even 

though they are consigned to a neutral; or

• the goods are consigned “to order” or to an unnamed consignee, but are destined for a 

neutral State in the vicinity of enemy territory.

238

 235 2007 NWP 1-14M ¶7.4.1 (“Though there has been no conflict of similar scale and magnitude since the Second 

World War, post–World War II-practice indicates that, to the extent international law may continue to require 

publication of contraband lists, the requirement may be satisfied by a listing of exempt goods.”).

236 2007 NWP 1-14M ¶7.4.1.2 (“It is immaterial whether the carriage of contraband is direct, involves 

transshipment, or requires overland transport.”); 1998 NWP 9 ¶7.4.1.1 (same). Consider 1909 DECLARATION OF 

LONDON art. 30 (“Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or 

occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is 

direct or entails transhipment or a subsequent transport by land.”).

237 The Pedro, 175 U.S. 354, 365-66 (1899) (“In The Circassian, it was ruled that the intent to violate a blockade, 

found as a fact, was not disproved by evidence of a purpose to call at a neutral port, not reached at time of capture, 

with ulterior destination to the blockaded port. In The Bermuda, the actual destination to a belligerent port, whether 

ulterior or direct, was held to determine, the character of the transaction as a whole; that transhipment could not 

change the effect of the pursuit of a common object by a common plan; and that if the cargo was contraband its 

condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so as to the 

vessel in the former case. And in The Springbok, it was held that an intention to tranship cargo at a neutral port did 

not save it when destined for a blockaded port; that as to cargo, both in law and intent, the voyage from London to 

the blockaded port was one voyage, and that the liability attached from the time of sailing if captured during any part 

of that voyage.”).

238 2007 NWP 1-14M ¶7.4.1.2 (“When contraband is involved, a destination of enemy owned or occupied territory 

may be presumed when: 1. The neutral vessel is to call at an enemy port before arriving at a neutral port for which 
988

These presumptions of enemy destination constitute sufficient cause for naval 

commanders to order a capture.

239 However, these presumptions may be rebuttable during 

subsequent prize court proceedings by an affirmative showing of innocent destination.

240 

These presumptions of the destination of enemy territory are not sufficient to establish 

that the property is destined for use by an enemy government or its armed forces, which would 

be necessary to establish a basis for the forfeiture of the property if the property is classified as

conditional contraband.241

15.12.3 Certificate of Noncontraband Carriage. A certificate of noncontraband carriage 

is a document issued by a belligerent consular or other designated official to a neutral vessel 

(navicert) or neutral aircraft (aircert) certifying that the cargo being carried has been examined, 

usually at the initial place of departure, and has been found to be free of contraband. The 

purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods with 

minimal interference and delay of neutral commerce.242 The navicert or aircert may be viewed 

as a type of commercial passport.243

The certificate is not a guarantee that the vessel or aircraft will not be subject to visit and 

search or that cargo will not be seized. (Changed circumstances, such as a change in status of the 

 the goods are documented; 2. The goods are documented to a neutral port serving as a port of transit to an enemy, 

even though they are consigned to a neutral; or 3. The goods are consigned ‘to order’ or to an unnamed consignee, 

but are destined for a neutral nation in the vicinity of enemy territory.”); 1998 NWP 9 ¶7.4.1.1 (substantially the 

same).

239 1955 NWIP 10-2 ¶631c(1) note 21 (“The circumstances creating a presumption of ultimate enemy destination 

enumerated in subparagraphs 631c 1 and 2 are of concern to operating naval commanders for the reason that 

circumstances held to create a presumption of enemy destination constitute sufficient cause for capture. Before a 

prize court each of these presumptions is rebuttable and whether or not a prize court will, in fact, condemn the 

captured cargo, and vessel (or aircraft), will depend upon a number of complex considerations with which an 

operating naval commander need not be concerned.”).

240 See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 272-73 (“In this connection the belligerent’s task has 

been facilitated still further by the creation of a detailed set of presumptions governing hostile destination. Thus a 

presumption of enemy destination has been held to arise where goods are consigned ‘to order,’ or if the ships papers 

do not indicate the real consignee of the goods, or if goods are merely consigned to a dealer or agent and the 

ultimate buyer is unknown, or if the parties engaged in the transaction—though known—have or are suspected of 

having enemy connections. In any of the foregoing circumstances the inference of an ultimate enemy destination 

has been strong and could be displaced only by a positive showing that the goods in question had an innocent 

destination.”).

241 Refer to § 15.12.1.1 (Distinction Between Absolute and Conditional Contraband).

242 2007 NWP 1-14M ¶7.4.2 (“A certificate of noncontraband carriage is a document issued by a belligerent consular 

or other designated official to a neutral vessel (navicert) or neutral aircraft (aircert) certifying that the cargo being 

carried has been examined, usually at the initial place of departure, and has been found to be free of contraband. 

The purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods with minimal 

interference and delay of neutral commerce.”); 1998 NWP 9 ¶7.4.2 (same).

243 See Malcolm Moos, The Navicert in World War II, 38 AJIL 115 (1944) (“In view of their favorable experience 

with the ‘navicert’ during World War I, its revival by the British in December 1939, occasioned no surprise. The 

term navicert is derived from the code word ‘navicert,’ and in essence is a commercial passport designed to 

facilitated the passage of consignments through the British blockade.”). Refer to § 12.6 (Military Passports, SafeConducts, and Safeguards).
989

neutral vessel, between the time of issuance of the certificate and the time of interception at sea 

may cause it to be invalidated.) Conversely, the absence of a navicert or aircert is not, in itself, a 

valid ground for seizure of cargo.244

Navicerts and aircerts issued by one belligerent State do not limit the visit and search 

rights of an opposing belligerent State. When a neutral ship or aircraft accepts a navicert or 

aircert from one belligerent State, this may affect how the other belligerent State views the

neutrality of that aircraft or vessel.

245

A similar procedure was used during the Cuban Missile Crisis, when the United States 

issued clearance certificates (clearcerts).246

15.13 BELLIGERENT RIGHT OF VISIT AND SEARCH OF MERCHANT VESSELS AND CIVIL AIRCRAFT

Belligerent warships and military aircraft have a right of visit and search of merchant 

vessels and civil aircraft outside of neutral territory.

15.13.1 Purposes of Visit and Search. The belligerent right of visit and search may be 

viewed as a necessary part of the belligerent’s right to capture enemy merchant vessels and civil 

aircraft, and to capture neutral merchant vessels and civil aircraft that have engaged in violations 

of neutrality.

247 Thus, for example, visit and search has been conducted with the object of:248

 244 2007 NWP 1-14M ¶7.4.2 (“The certificate is not a guarantee that the vessel or aircraft will not be subject to visit 

and search or that cargo will not be seized. (Changed circumstances, such as a change in status of the neutral vessel, 

between the time of issuance of the certificate and the time of interception at sea may cause it to be invalidated.) 

Conversely, absence of a navicert or aircert is not, in itself, a valid ground for seizure of cargo.”); 1998 NWP ¶7.4.2 

(same).

245 See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 322-23 (“In this connection a problem of considerable 

importance arises as a result of the attempt by belligerents to institute a system of passes for neutral shipping. In 

principle, it is clear that such devices as the navicert and ships warrant are intended to establish an effective control 

over the activities of neutral merchant vessels. Neutral merchant vessels by submitting to such a system thereby 

ease the belligerent's task of patrolling the high seas in search either of contraband carriers or of blockade runners. 

It seems reasonably well-established that a neutral merchant vessel in accepting a safe-conduct pass from a 

belligerent subjects itself to the control of the latter and performs an act of unneutral service. The same conclusion 

would appear warranted in the case of a neutral vessel that cooperates with a belligerent by voluntarily applying for, 

and accepting, a navicert or ship’s warrant.”).

246 Press Release: U.S. Acts To Avoid Delays for Ships Transiting Waters in Vicinity of Cuba, Oct. 27, 1962, 47 

DEPARTMENT OF STATE BULLETIN 747 (Nov. 12, 1962) (“The Department of State announced on October 27 the 

institution of a system of clearances to assist vessels which transit waters in the vicinity of Cuba and vessels destined 

for Cuban ports with cargoes containing no offensive weapons or associated materiel. The system, developed by the 

State, Defense, and Treasury Departments, is designed to avoid unnecessary delays and other difficulties arising out 

of the stoppage, inspection, or possible diversion of ships. The system is for the convenience of shipping, and 

clearances are obtainable upon application by ships’ owners, agents, or officers. A vessel departing a United States 

port may obtain a special clearance from customs authorities at the port of departure. A vessel departing a foreign 

port may obtain the clearance from an American consulate.”).

247 See, e.g., The Nereide, 13 U.S. 388, 427-28 (1815) (“Belligerents have a full and perfect right to capture enemy 

goods and articles going to their enemy which are contraband of war. To the exercise of that right the right of search 

is essential. It is a mean justified by the end. It has been truely denominated a right growing out of, and ancillary to 

the greater right of capture. Where this greater right may be legally exercised without search, the right of search can 

never arise or come into question.”).
990

• ascertaining the character of the vessel or aircraft and nationality (including assessing 

whether a vessel or aircraft that is flagged to a neutral State has acquired enemy character 

by engaging in service to the enemy);

249

• verifying whether it conveys contraband cargo;250

• verifying whether it has committed a breach of blockade;

251 or

• verifying whether the vessel or aircraft has committed another violation of neutrality 

making it liable to capture.252

15.13.2 Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search. 

Certain neutral vessels and aircraft are exempt from the belligerent right of visit and search: (1) 

neutral warships; (2) neutral State aircraft (including military aircraft); (3) ships of neutral States 

used only on government non-commercial service; and (4) neutral merchant vessels under 

convoy of neutral warships of the same nationality, and neutral aircraft accompanied by neutral 

military aircraft of the same nationality.

15.13.2.1 Neutral Warships. Neutral warships may not be subjected to visit and 

search because they have complete immunity from the jurisdiction of any State other than the 

flag State.

253 

15.13.2.2 Neutral State Aircraft. Neutral State aircraft (including military 

aircraft) are immune from visit and search by foreign States.254

15.13.2.3 Ships of a Neutral State Used Only on Government Non-Commercial 

Service. Ships owned or operated by a neutral State and used only on government noncommercial service may not be subjected to visit and search because they also have complete 

immunity from the jurisdiction of any State other than the flag State.

255

 248 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“Warships of the belligerents have the right 

to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with the object of 

ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by international law 

or has committed any violation of blockade.”).

249 Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked 

Civil Aircraft).

250 Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

251 Refer to § 13.10 (Blockade).

252 Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

253 Consider LOS CONVENTION art. 95 (“Warships on the high seas have complete immunity from the jurisdiction of 

any State other than the flag State.”).

254 Refer to § 14.3.1 (State Versus Civil Aircraft); 14.3.3.1 (Military Aircraft – Rights and Liabilities).

255 Consider LOS CONVENTION art. 96 (“Ships owned or operated by a State and used only on government noncommercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the 

flag State.”).
991

15.13.2.4 Neutral Merchant Vessels Under Convoy of Neutral Warships of the 

Same Nationality and Neutral Aircraft Accompanied by Neutral Military Aircraft of the Same 

Nationality. Neutral merchant vessels under convoy of neutral warships of the same nationality 

are also exempt from visit and search.

256 However, the convoy commander may be required to 

provide in writing to the commanding officer of an intercepting belligerent State’s warship 

information as to the character of the vessels and their cargoes that would otherwise be obtained 

by a visit and search.257 Neutral merchant vessels under convoy of neutral warships of the same 

nationality are exempt from visit and search because the neutral State has provided an assurance 

that the neutral vessel is not engaged in violations of neutrality.258

If a convoy commander determines that a vessel under his or her charge possesses enemy 

character or carries contraband cargo, the commander is obliged to withdraw his or her 

protection from the offending vessel, making it liable to visit and search, and possible capture, by 

opposing belligerent warships.

259

Neutral civil aircraft accompanied by neutral military aircraft of the same flag may also 

be exempt from visit and search if the following two elements are met: 

• the flag State of a neutral military aircraft warrants that the neutral civil aircraft is not 

carrying contraband cargo; and 

• the commander of the neutral military aircraft provides to the intercepting belligerent 

military aircraft upon request all information as to the character and cargo of the neutral 

 256 For example, John H. McNeill, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31 

VIRGINIA JOURNAL OF INTERNATIONAL LAW 631, 635 (1991) (“And in July 1987, eleven Kuwaiti-owned tankers 

were registered under the U.S. flag and escorted by the U.S. Navy. To many, this reflagging procedure appeared to 

be a logical expedient, not for repudiating the rules concerning contraband, but rather for protecting these vessels 

against the attack-on-sight of neutral shipping, in addition to whatever U.S. foreign policy objectives the reflagging 

served. In effect, the U.S. relied upon the ancient doctrine of ‘right of convoy’ under which belligerents cannot visit 

and search convoyed ships and are to be satisfied with the declaration of the commander of the convoy that no cargo 

which can be considered contraband is on board the convoyed ships.”).

257 Consider 1909 DECLARATION OF LONDON art. 61 (“Neutral vessels under national convoy are exempt from 

search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent warship, all 

information as to the character of the vessels and their cargoes, which could be obtained by search.”).

258 See General Report to the Conference, reprinted in JAMES BROWN SCOTT, THE DECLARATION OF LONDON 

FEBRUARY 26, 1909 177-78 (1920) (“The principle laid down is simple; a neutral vessel under the convoy of a warship of her own nationality is exempt from search. The reason for this rule is that the belligerent cruiser ought to be 

able to find in the assurances of the commander of the convoy as good a guaranty as would be afforded by the 

exercise of the right of search itself; in fact, she can not call in question the assurances given by the official 

representative of a neutral Government without displaying a lack of international courtesy.”).

259 Consider 1909 DECLARATION OF LONDON art. 62 (“If the commander of the belligerent warship has reason to 

suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to 

him. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the result 

of such investigation in a report, of which a copy is handed to the officer of the warship. If, in the opinion of the 

commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of 

the convoy must be withdrawn from such vessels.”).
992

civil aircraft that would otherwise be obtained by a visit and search.260

15.13.3 Where Belligerents May Not Exercise the Right of Visit and Search. As an act of 

hostility, the belligerent right of visit and search may not be conducted within neutral territory 

(e.g., a neutral State’s territorial seas and neutral airspace).

261 This prohibition on the exercise of 

the belligerent right of visit and search extends to international straits overlapped by neutral 

territorial seas and to archipelagic sea lanes.262

15.13.4 Procedure for Visit and Search of Merchant Vessels and Aircraft. Belligerent 

States have discretion in formulating their procedures for conducting the visit and search of 

neutral merchant vessels and aircraft.263 Generally, the belligerent warship or aircraft visits or 

intercepts the vessel or aircraft, shows its true colors, and provides a clear signal to the merchant 

vessel or civil aircraft that it is expected to submit to visit and search.

264 

During armed conflict, specific rules of engagement or other special instructions may be 

issued by the operational chain of command to provide guidance on the visit and search 

procedure to be carried out by U.S. warships and military aircraft when exercising the belligerent 

State’s right of visit and search of merchant vessels and civil aircraft. For example, the issuance 

of certificates of non-contraband carriage may be part of such procedures.265 In the absence of 

specific guidance from the operational chain of command, Military Department or Service 

 260 2007 NWP 1-14M ¶7.6.3 (“Neutral civilian aircraft accompanied by neutral military aircraft of the same flag are 

exempt from visit and search if the neutral military aircraft (1) warrants that the neutral civilian aircraft is not 

carrying contraband cargo and (2) provides to the intercepting belligerent military aircraft upon request such 

information as to the character and cargo of the neutral civilian aircraft as would otherwise be obtained in visit and 

search.”).

261 See HAGUE XIII art. 2 (“Any act of hostility, including capture and the exercise of the right of search, committed 

by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly 

forbidden.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“Warships of the belligerents 

have the right to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with 

the object of ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by 

international law or has committed any violation of blockade.”).

262 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea 

Lanes).

263 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (“Customary international law does not lay down 

detailed rules governing the mode of conducting visit and search and belligerents have always enjoyed a certain 

discretion in this regard. In general, however, a substantial measure of uniformity came to characterize the 

traditional practices of states, and this uniformity was reflected in the special instructions issued by maritime powers 

to their naval forces.”).

264 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (“Before calling upon a neutral merchantman to 

submit to visitation a belligerent warship is required to show its true colors. In addition, visitation must be preceded 

by a clear signal on the part of the warship that the merchant vessel is expected to stop and bring to. The 

notification of intention to visit may be accomplished by any of several means, e. g., by firing a blank charge, by 

international flag signal, or even by radio. Nor does international law prescribe the distance a belligerent warship 

must keep from the vessel being visited, which may vary according to the conditions of the sea, the size and 

character of the visiting warship, and many other factors.”).

265 Refer to § 15.12.3 (Certificate of Noncontraband Carriage).
993

regulations or guidance may provide the applicable procedures.266

15.13.4.1 Use of Force During Visit and Search. Merchant vessels or civil 

aircraft that comply with instructions given to them may not be made the object of attack; 

merchant ships or civil aircraft that refuse to comply may be stopped by force.267 Merchant 

ships or civil aircraft that resist visit and search assume the risk of resulting damage.

268 Such 

vessels or aircraft also may be deemed to acquire the character of enemy merchant ships or civil 

aircraft.

269

15.13.4.2 Visit and Search of Merchant Vessels by Military Aircraft. Belligerent 

military aircraft have a right to conduct visit and search of merchant vessels.270

Ordinarily, visit and search of a vessel by a belligerent State’s aircraft is accomplished by 

directing and escorting the merchant vessel to the vicinity of a belligerent warship, which would

carry out the visit and search at sea, or to a belligerent port.271

15.13.4.3 Visit and Search of Civil Aircraft by Military Aircraft. Belligerent 

military aircraft have a right to conduct visit and search of civil aircraft.272 Such visit and search 

is conducted through interception and, if necessary, diversion.273

 266 See, e.g., 2007 NWP 1-14M ¶7.6.1 (“In the absence of specific rules of engagement or other special instructions 

issued by the operational chain of command during a period of armed conflict, the following procedure should be 

carried out by U.S. warships exercising the belligerent right of visit and search of merchant vessels:”).

267 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“If the merchant ship does not heed the 

signal to stop, it may be pursued by the warship and stopped by force; outside of such a case the ship cannot be 

attacked unless, after being hailed, it fails to observe the instructions given it.”).

268 See Eleanor, 15 U.S. 345, 358 (1817) (“To detain for examination is a right which a belligerant may exercise over 

every vessel, not a national vessel, that he meets with on the ocean. And whatever may be the injury that casually 

results to an individual from the act of another while pursuing the reasonable exercise of an established right, it is his 

misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable 

neither at law nor in the forum of conscience. And the principal right necessarily carries with it also all the means 

essential to its exercise. Thus, in the present case, a vessel must be pursued in order to be detained for examination. 

But if in the pursuit she had been dismasted, and upset or stranded, or run on shore and lost, it would have been an 

unfortunate case, but the pursuing vessel would have stood acquitted.”).

269 Refer to § 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

270 2007 NWP 1-14M ¶7.6.2 (“Although there is a right of visit and search by military aircraft, there is no 

established international practice as to how that right is to be exercised.”).

271 2007 NWP 1-14M ¶7.6.2 (“Ordinarily, visit and search of a vessel by an aircraft is accomplished by directing and 

escorting the vessel to the vicinity of a belligerent warship, which will carry out the visit and search, or to a 

belligerent port.”).

272 2007 NWP 1-14M ¶7.6.3 (“The right of a belligerent military aircraft to conduct visit and search of a civilian 

aircraft to ascertain its true identity (enemy or neutral), the nature of its cargo (contraband or ‘free goods’), and the 

manner of its employment (innocent or hostile) is now well established in the law of armed conflict.”).

273 Refer to § 14.5.1 (Interception); § 14.5.2 (Diversion of Aircraft).
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15.14 ACQUISITION OF ENEMY CHARACTER BY NEUTRAL-FLAGGED MERCHANT VESSELS AND 

NEUTRAL-MARKED CIVIL AIRCRAFT

All vessels operating under an enemy flag, and all aircraft bearing enemy markings,

possess enemy character. However, the fact that a ship flies a neutral flag, or that an aircraft 

bears neutral markings, does not necessarily establish the neutral character of the vessel or 

aircraft. Vessels or aircraft may acquire enemy character from (1) the ownership or control of 

the vessel or aircraft, or (2) their conduct.

15.14.1 Acquisition of Enemy Character by Vessels or Aircraft Through Belligerent 

Ownership or Control. Any merchant vessel or civil aircraft that is owned or controlled by an

enemy State or person has enemy character, regardless of whether it is operating under a neutral 

flag or bears neutral markings.274 A neutral flag or neutral markings cannot serve as a device to 

protect vessels or aircraft from seizure whose actual status indicates either continued ownership 

or control by individuals who themselves possess enemy character.275 Such vessels may be 

subject to treatment as enemy merchant vessels or civil aircraft, including being subject to 

capture.276

15.14.2 Acquisition of Enemy Character by Vessels or Aircraft Through Conduct. 

Certain conduct by vessels or aircraft may lead them to acquire enemy character and make them 

liable to treatment as either (1) enemy warships or military aircraft, or (2) enemy merchant ships 

or civil aircraft.

Humanitarian assistance given to the wounded, sick, or shipwrecked of belligerent forces

by neutral vessels does not lead to such vessels acquiring enemy character if such assistance is

provided in accordance with the GWS-Sea.

277

15.14.2.1 Acquiring the Character of an Enemy Warship or Military Aircraft.

Neutral merchant vessels and civil aircraft acquire enemy character, and may be treated by a 

belligerent as enemy warships and military aircraft, when engaged in either of the following 

acts:278

 274 See 1955 NWIP 10-2 ¶501 (“Any merchant vessel or aircraft owned or controlled by or for an enemy State, 

enemy persons, or any enemy corporation possesses enemy character, regardless of whether or not such a vessel or 

aircraft operates under a neutral flag or bears neutral markings.”).

275 See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 75 (“For the practice of states is clear that even though 

entitled to fly a neutral flag—and thus possessing a neutral nationality—a vessel may nevertheless be considered as 

impressed with an enemy character. The neutral flag cannot serve as a device to protect vessels from seizure whose 

actual status indicates either continued ownership or control by individuals who themselves possess enemy 

character.”).

276 Refer to § 13.5 (Enemy Merchant Vessels).

277 Refer to § 7.4.6 (Collection and Care of the Wounded, Sick, and Shipwrecked by Neutral Vessels); § 7.12.1.3

(Authorized Neutral Civilian Hospital Ships).

278 See, e.g., 2007 NWP 1-14M ¶7.5.1 (“Neutral merchant vessels and civil aircraft acquire enemy character and 

may be treated by a belligerent as enemy warships and military aircraft when engaged in either of the following acts: 

1. Taking a direct part in the hostilities on the side of the enemy 2. Acting in any capacity as a naval or military 

auxiliary to the enemy’s armed forces.”); 1955 NWIP 10-2 ¶501a (“Neutral merchant vessels and aircraft acquire 
995

• taking a direct part in the hostilities on the side of the enemy; or

• acting in any capacity as a naval or military auxiliary to the enemy’s armed forces.279

For example, such vessels and aircraft may be made the object of attack outside of neutral 

territory.280

15.14.2.2 Acquiring the Character of an Enemy Merchant Vessel or Civil 

Aircraft. Neutral merchant vessels and civil aircraft acquire enemy character and may be treated 

by a belligerent as enemy merchant vessels or civil aircraft when engaged in either of the 

following acts:281

• operating directly under enemy control, orders, charter, employment, or direction; or 

• resisting an attempt to establish identity, including resisting visit and search.282

For example, such vessels and aircraft may be captured and, under certain circumstances, 

destroyed.

283

15.15 CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT

Certain neutral merchant vessels and civil aircraft may be captured outside neutral 

territory.

15.15.1 Grounds for the Capture of Neutral Vessels and Aircraft. Neutral-flagged 

merchant vessels or neutral-marked civil aircraft that have acquired enemy character are liable to 

 enemy character and are liable to the same treatment as enemy warships and military aircraft (see paragraph 503a) 

when engaging in the following acts: 1. Taking a direct part in the hostilities on the side of an enemy; 2. Acting in 

any capacity as a naval or military auxiliary to an enemy’s armed forces.”).

279 See also TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 321 (“The general principle involved is 

reasonably clear, and no attempt need be made to enumerate all of the acts that may result in this assimilation to an 

enemy’s armed forces. It is not the mere fact of assisting a belligerent that permits this severe treatment. Nor is it 

simply the consideration that the belligerent exercises a close control and direction over the neutral merchant vessel. 

The decisive consideration is rather that the services rendered are in direct support of the belligerent’s military 

operations. It is this support, leading as it does to the identification of the neutral merchant vessel (or aircraft) with 

the belligerent’s naval or military forces, that permits a treatment similar to that meted out to these forces.”).

280 Refer to § 13.4 (Enemy Warships).

281 See, e.g., 2007 NWP 1-14M ¶7.5.2 (“Neutral merchant vessels and civil aircraft acquire enemy character and 

may be treated by a belligerent as enemy merchant vessels or civil aircraft when engaged in either of the following 

acts: 1. Operating directly under enemy control, orders, charter, employment, or direction 2. Resisting an attempt to 

establish identity, including resisting visit and search.”); 1955 NWIP 10-2 ¶501b (“Neutral merchant vessel and 

aircraft acquire enemy character and are liable to the same treatment as enemy merchant vessels and aircraft (see 

paragraph 503b), when engaging in the following acts: 1. Operating directly under enemy control, orders, charter, 

employment, or direction; 2. Resisting an attempt to establish identity, including visit and search.”).

282 Refer to § 15.13.4.1 (Use of Force During Visit and Search).

283 Refer to § 13.5 (Enemy Merchant Vessels).
996

capture.284 In addition, neutral merchant vessels and civil aircraft are, in general, liable to 

capture by a belligerent State’s warships and military aircraft if performing any of the following 

acts:285

• carrying contraband;286

• carrying personnel in the military or public service of the enemy;287

• communicating information in the interest of the enemy;

288

• breaching or attempting to breach a blockade;289

• violating regulations established by a belligerent within the immediate area of naval 

operations;290

 284 Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked 

Civil Aircraft).

285 2007 NWP 1-14M ¶7.10 (“Neutral merchant vessels and civil aircraft are liable to capture by belligerent 

warships and military aircraft if engaged in any of the following activities: 1. Avoiding an attempt to establish 

identity 2. Resisting visit and search 3. Carrying contraband 4. Breaching or attempting to breach blockade 5. 

Presenting irregular or fraudulent papers; lacking necessary papers; or destroying, defacing, or concealing papers 6. 

Violating regulations established by a belligerent within the immediate area of naval operations 7. Carrying 

personnel in the military or public service of the enemy 8. Communicating information in the interest of the 

enemy.”); 1955 NWIP 10-2 ¶503d (“NEUTRAL MERCHANT VESSELS AND AIRCRAFT are in general liable to capture if 

performing any of the following acts: 1. Carrying contraband (see paragraph 631d). 2. Breaking, or attempting to 

break, blockade (see paragraph 632g). 3. Carrying personnel in the military or public service of an enemy. 4. 

Transmitting information in the interest of an enemy. 5. Avoiding an attempt to establish identity, including visit 

and search. 6. Presenting irregular or fraudulent papers; lacking necessary papers; destroying, defacing, or 

concealing papers. 7. Violating regulations established by a belligerent within the immediate area of naval 

operations (see paragraph 430b).”).

286 Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

287 Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (“The neutral vessel shall be seized and in 

general subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined for 

transporting enemy troops ... .”). Consider 1909 DECLARATION OF LONDON art. 45 (“A neutral vessel will be 

condemned and will, in a general way, receive the same treatment as a neutral vessel liable to condemnation for 

carriage of contraband: (1) If she is on a voyage specially undertaken with a view to the transport of individual 

passengers who are embodied in the armed forces of the enemy, ... . (2) If, to the knowledge of either the owner, 

the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in 

the course of the voyage, directly assist the operations of the enemy.”).

288 Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (“The neutral vessel shall be seized and in 

general subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined ... for 

the transmission of information on behalf of the enemy.”). Consider 1909 DECLARATION OF LONDON art. 45 (“A 

neutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable to 

condemnation for carriage of contraband: (1) If she is on a voyage especially undertaken ... with a view to the 

transmission of intelligence in the interest of the enemy.”).

289 Refer to § 13.10.4 (Breach and Attempted Breach of Blockade).

290 Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).
997

• avoiding an attempt to establish identity, including visit and search;

291 or

• presenting irregular or fraudulent papers; lacking necessary papers; or destroying, 

defacing, or concealing papers.

292

15.15.2 Procedure for Capture and Condemnation. Belligerent States have discretion in 

formulating their procedures for conducting the capture and condemnation of neutral merchant 

vessels and aircraft.293 Prior exercise of the right of visit and search is not required for the 

capture of neutral-flagged vessels or neutral-marked aircraft that have acquired enemy status, if 

positive determination of status can be obtained by other means.

294

Captured neutral merchant vessels and civil aircraft are sent to a port or airfield under a 

belligerent State’s jurisdiction as a prize for adjudication by a prize court. Ordinarily, a 

belligerent State’s warship will place a prize master and prize crew on board a captured vessel 

for this purpose. Should that be impracticable, the prize may be escorted into port by a 

belligerent State’s warship or military aircraft. In the latter circumstances, the prize must obey 

the instructions of its escort or risk forcible measures.295

A prize may not be brought into a neutral port, except under emergency circumstances.296 

A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral 

 291 Refer to § 15.13.4 (Procedure for Visit and Search of Merchant Vessels and Aircraft).

292 See Carrington v. Merchants’ Ins. Co., 33 U.S. 495, 521-22 (1834) (Story, J.) (“The belligerent has a right to 

require a frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if

the latter will make use of fraud, and false papers, to elude the just rights of the belligerents, and to cloak their own 

illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels 

with the party and his offending instrument during the whole course of the voyage, and until the enterprise has, in 

the understanding of the party himself, completely terminated. There are many analogous cases in the prize law, 

where fraud is followed by similar penalties. Thus, if a neutral will cover up enemy’s property under false papers, 

which also cover his own property, prize courts will not disentangle the one from the other, but condemn the whole 

as good prize.”).

293 See 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 2 (“Both the detention of the vessel and its 

crew for violation of neutrality shall be made in accordance with the procedure which best suits the state effecting it 

and at the expense of the transgressing ship. Said state, except in the case of grave fault on its part, is not 

responsible for damages which the vessel may suffer.”).

294 1955 NWIP 10-2 ¶502a (“Historically, visit and search was considered the only legally acceptable method for 

determining whether or not a merchant vessel was subject to capture. It is now recognized that changes in warfare 

have rendered this method either hazardous or impracticable in many situations. In the case of enemy merchant 

vessels and aircraft and neutral merchant vessels and aircraft acquiring enemy character as described in the 

preceding article, the belligerent right of capture (and, exceptionally, destruction as described in paragraph 503b) 

need not be preceded by visit and search, provided that a positive determination of status can be obtained by other 

methods.”).

295 2007 NWP 1-14M ¶7.10 (“Captured vessels and aircraft are sent to a port or airfield under belligerent jurisdiction 

as a prize for adjudication by a prize court. Ordinarily, a belligerent warship will place a prize master and prize 

crew on board a captured vessel for this purpose. Should that be impracticable, the prize may be escorted into port 

by a belligerent warship or military aircraft. In the latter circumstances, the prize must obey the instructions of its 

escort or risk forcible measures.”); 1998 NWP 9 ¶7.10 (substantially the same).

296 Refer to § 15.9.5 (Prizes in Neutral Ports or Roadsteads).
998

waters.297

15.15.2.1 Use of Force During Capture. Neutral vessels or aircraft attempting to 

resist proper capture lay themselves open to forcible measures by a belligerent State’s warships 

and military aircraft, and assume the risk of resulting damage.298 The same rule applies to 

resistance during visit and search.

299

15.15.3 Destruction of Neutral Prizes. Although the destruction of a neutral prize is not 

absolutely forbidden, it involves a much more serious responsibility than the destruction of an 

enemy prize.300 Thus, a higher standard is applicable than for the destruction of enemy prizes.301

Every reasonable effort should be made to avoid destruction of captured neutral vessels 

and aircraft.302 A capturing officer, therefore, should not order such destruction without being 

entirely satisfied that the prize can neither be sent to a belligerent State port or airfield nor, in his 

or her opinion, properly be released.303

Should it become necessary that the prize be destroyed, the capturing officer must 

provide for the safety of the passengers and crew.304 In that event, all documents and papers 

relating to the prize should be preserved. If practicable, the personal effects of passengers should 

also be safeguarded.305

 297 HAGUE XIII art. 4 (“A Prize Court cannot be set up by a belligerent on neutral territory or on a vessel in neutral 

waters.”).

298 See, e.g., 2007 NWP 1-14M ¶7.10 (“Neutral vessels or aircraft attempting to resist proper capture lay themselves 

open to forcible measures by belligerent warships and military aircraft and assume all risk of resulting damage.”); 

1989 NWP 9 ¶7.9 (same).

299 Refer to § 15.13.4.1 (Use of Force During Visit and Search).

300 1955 NWIP 10-2 ¶509e (“Although the destruction of a neutral prize is not absolutely forbidden, it involves a 

much more serious responsibility than the destruction of an enemy prize.”).

301 Refer to § 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels).

302 2006 AUSTRALIAN MANUAL ¶6.59 (“Every effort should be made to avoid destruction of a captured neutral 

vessel.”).

303 1955 NWIP 10-2 ¶509e (“A capturing officer, therefore, should never order such destruction without being 

entirely satisfied that the military reasons therefore justify it, i.e. under circumstances such that a prize can neither be 

sent in nor, in his opinion, properly released.”).

304 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“The ship shall not be rendered incapable 

of navigation before the crew and passengers have been placed in safety.”); Treaty for the Limitation and Reduction 

of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (“In particular, except in the case of persistent 

refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel 

or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed 

passengers, crew and ship’s papers in a place of safety. For this purpose the ship's boats are not regarded as a place 

of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the 

proximity of land, or the presence of another vessel which is in a position to take them on board.”). Consider

Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22, 

1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).

305 1955 NWIP 10-2 ¶509e (“Should the necessity for the destruction of a neutral prize arise, it is the duty of the 

capturing officer to provide for the safety of the passengers and crew. All documents and papers relating to a neutral 
999

15.15.4 Personnel on Board Captured Neutral Vessels and Aircraft. 

15.15.4.1 Officers and Crews of Captured Neutral Merchant Vessels and Civil 

Aircraft. The officers and crews of captured neutral merchant vessels and civil aircraft who are 

nationals of a neutral State should not be made POWs,

306 even if the vessel or aircraft has 

acquired the character of enemy merchant vessels or aircraft.

307 However, if the vessel or 

aircraft has acquired the character of an enemy warship or military aircraft,

308 the officers and

crew may be held as POWs.

309

15.15.4.2 Enemy Nationals Found Onboard Neutral Merchant Vessels and Civil 

Aircraft. Belligerents have a right to remove certain enemy persons from neutral vessels or 

aircraft, even if there are no grounds for the capture of the vessel or aircraft as prize.310 Enemy 

nationals found onboard a neutral State’s merchant vessels or civil aircraft as passengers who 

are: 

• a current member of an enemy military force;311

• en route to join, or be incorporated into, an enemy’s armed forces;

• employed in the public service of the enemy State; or

 

prize should be saved. If practicable, the personal effects of passengers should be saved. Every case of destruction 

of a neutral prize should be reported promptly to a higher command.”).

306 1955 NWIP 10-2 ¶513a (“The officers and crews of captured neutral merchant vessels and aircraft who are 

nationals of a neutral State should not be made prisoners of war.”). See also TUCKER, THE LAW OF WAR AND 

NEUTRALITY AT SEA 347 (“In seizing neutral vessels the belligerent incurs certain duties that have long enjoyed the 

sanction of state practice. Unless the neutral nationals serving as officers and crew of neutral vessels have taken a 

direct part in the hostilities they may not be treated as prisoners of war.”).

307 Refer to § 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

308 Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

309 See 2007 NWP 1-14M ¶7.10.2 (“This rule applies equally to the officers and crews of neutral vessels and aircraft 

that assumed the character of enemy merchant vessels or aircraft by operating under enemy control or resisting visit 

and search. If, however, the neutral vessels or aircraft had taken a direct part in the hostilities on the side of the 

enemy or had served in any way as a naval or military auxiliary for the enemy, they thereby assumed the character 

of enemy warships or military aircraft and, upon capture, their officers and crew may be interned as prisoners of 

war.”); 1955 NWIP 10-2 ¶513a endnote 41 (“This paragraph is applicable as well to the officers and crews, 

nationals of a neutral state, of captured neutral merchant vessels and aircraft which have acquired enemy character 

and which are liable to the same treatment as enemy merchant vessels and aircraft, as described in paragraph 501b. 

Hence, a distinction must be made between the treatment accorded to neutral merchant vessels acquiring enemy 

character, and the treatment accorded to the personnel of such vessels. There is a clear exception, however, in the 

case of personnel of neutral vessels and aircraft which take a direct part in the hostilities on the side of an enemy or 

which serve in any way as a naval or military auxiliary for an enemy.”).

310 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 328 (“Despite neutral opposition during World War I to 

conceding any belligerent right to remove enemy persons from neutral merchant vessels at sea, it would now seem 

that—in principle—the practice of states may be regarded as having sanctioned this belligerent measure.”).

311 Consider DECLARATION OF LONDON art. 47 (“Any individual embodied in the armed forces of the enemy who is

found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the 

capture of the vessel.”).
1000

• engaged in, or suspected of engagement in, service in the interests of the enemy State;

312

also may be interned until a determination of their status has been made.313 

15.16 BELLIGERENT FORCES TAKING REFUGE IN NEUTRAL TERRITORY

Neutral States have rights and duties with respect to the treatment of belligerent State 

forces that enter, or seek to enter, their territory. Generally, a neutral State is required to intern a 

belligerent State’s forces to ensure that they do not return to the armed conflict.314 

15.16.1 Discretion of the Neutral State in Offering Asylum to Belligerent Forces Seeking 

Refuge. A neutral State has discretion in whether to permit belligerent forces seeking refuge to 

enter its territory.

 312 CDR Joe Munster, Removal of Persons from Neutral Shipping, THE JAG JOURNAL: THE OFFICE OF THE JUDGE 

ADVOCATE JOURNAL OF THE NAVY 3, 18 (Oct. 1952) (“It appears unlikely that the old rules concerning the removal 

of persons from neutral shipping can much longer survive, even extended to include reservists. With the increasing 

development of science it would appear foolhardly for a nation to permit an Oppenheimer, a Millikan, a Fermi, an 

Einstein, or any accomplished atomic or neuclear [sic] physicist to return to his own country, if that country be an 

opposing belligerent. An expert in guided missiles would be more important to a belligerent country than an 

ordinary soldier; and notwithstanding the expert is not ‘embodied in the armed services’ it would appear that the 

rules and regulations of international law must be amended to bring them into line with the requirements of 

belligerent necessity. It does not appear that neutrals can properly maintain that no persons other than those 

connected with the military, either entirely or in a reserve status, may be removed from neutral shipping.”).

313 2007 NWP 1-14M ¶7.10.2 (“Enemy nationals found on board neutral merchant vessels and civil aircraft as 

passengers who are actually embodied in the military forces of the enemy, who are en route to serve in the enemy’s 

armed forces, who are employed in the public service of the enemy, or who may be engaged in or suspected of 

service in the interests of the enemy may be made prisoners of war. All such enemy nationals may be removed from 

the neutral vessel or aircraft whether or not there is reason for its capture as a neutral prize.”); 1955 NWIP 10-2 

¶513b (“Enemy nationals found on board neutral merchant vessels and aircraft as passengers who are actually 

embodied in the military forces of an enemy, or who are en route to serve in an enemy’s military forces, or who are 

employed in the public service of an enemy, or who may be engaged in or suspected of service in the interests of an 

enemy may be made prisoners of war.”).

314 For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE 

SECOND WORLD WAR (SEPTEMBER 1, 1939 - JUNE 30, 1947) 557 (1948) (“Neutral States. – The Swiss Government 

agreed, in June 1940, to receive on their territory and to intern 32,000 men of the 45th French Army Corps and 

13,000 men of the 2nd Polish Division. After the repatriation of the French internees in January 1941, the Polish 

Division remained, and in 1943, the authorities interned 23,000 men of the Italian forces. In addition, individual 

internments during hostilities amounted to 7,000 combatants belonging to 37 different nationalities. In September 

1939, Rumania received 20,000 men of the Polish forces, who were interned. Hungary received 36,000, Lithuania

14,000 and Latvia 1,600. Other neutral countries gave refuge to a limited number of military internees of various 

nationalities.”); Ex parte Toscano, 208 F. 938, 939 (S.D. CA 1913) (“That for several days prior to April 13, 1913, 

an armed force of the Constitutionalist army attacked the same town of Naco, and on April 13, 1913, the petitioners 

and other Federalist troops occupying the said town were defeated and driven out of said town of Naco, and were 

pursued by the victorious Constitutionalist troops, and to avoid surrendering to the Constitutionalist force, the 

Federalist troops fled with their arms across the boundary line between the United States and Mexico, and sought 

refuge and asylum from the pursuing enemy in the United States. That immediately upon crossing the said neutral 

boundary and reaching United States soil, the said petitioners and other Federalist troops belonging to said 

belligerent army voluntarily surrendered themselves to the armed forces of the United States, which said armed 

forces of the United States, acting under authority of the President of the United States, thereupon disarmed said 

belligerent troops and detained and interned them pending the removal of said belligerent troops to a point within 

the territory of the United States at a distance from the theater of said civil war.”).
1001

15.16.1.1 Neutral Right to Deny Access or to Impose Conditions on Belligerent 

Forces. A neutral State is not bound to permit a belligerent State’s forces to enter its territory.315 

The neutral State may impose conditions on belligerent forces seeking refuge in its territory.316 

In cases of large bodies of belligerent forces seeking refuge in neutral territory, these conditions 

will usually be stipulated in an agreement concluded by the representatives of the neutral State 

and the senior officer of the forces.

317

15.16.1.2 Neutral Duty to Disarm and Intern the Belligerent Forces. If the 

belligerent forces are permitted to seek refuge in neutral territory, the neutral State must take 

appropriate measures to ensure that these forces will no longer participate in the armed conflict. 

If such measures were not taken, then the neutral State’s territory might serve as an unlawful 

sanctuary or base of operations for the belligerent.318

Thus, belligerent forces received in neutral territory must be disarmed, and appropriate 

measures must be taken to prevent their leaving the neutral State.319 In particular, a neutral State 

that receives on its territory personnel belonging to the belligerent forces shall intern them, as far 

as possible, at a distance from the theater of war.320 For example, if belligerent military aircraft 

land in a neutral State, that State must intern the aircraft, aircrew, and accompanying military 

personnel for the duration of the war.321

15.16.2 Neutral Reception of the Wounded, Sick, and Shipwrecked. Like other 

belligerent personnel received in neutral land territory, the wounded, sick, and shipwrecked who 

are received within a neutral jurisdiction are also generally to be guarded so that they can no 

longer participate in hostilities.

However, ground transports of belligerent wounded and sick personnel may be 

authorized to pass through neutral land territory by special agreement.322

 315 1956 FM 27-10 (Change No. 1 1976) ¶533 (“A neutral is not bound to permit belligerent troops to enter its 

territory.”).

316 1956 FM 27-10 (Change No. 1 1976) ¶534 (“If troops or soldiers of a belligerent are permitted to seek refuge in 

neutral territory, the neutral is authorized to impose the terms upon which they may do so.”).

317 1956 FM 27-10 (Change No. 1 1976) ¶534 (“In cases of large bodies of troops seeking refuge in neutral territory, 

these conditions will usually be stipulated in a convention drawn up by the representatives of the neutral power and

the senior officer of the troops.”).

318 Refer to § 15.5 (Prohibition on the Use of Neutral Territory as a Base of Operations).

319 1956 FM 27-10 (Change No. 1 1976) ¶533 (“On the other hand, it may permit them to do so without violating its 

neutrality, but the troops must be interned or confined in places designated by the neutral. They must be disarmed 

and appropriate measures must be taken to prevent their leaving the neutral country.”).

320 HAGUE V art. 11 (“A neutral Power which receives on its territory troops belonging to the belligerent armies shall 

intern them, as far as possible, at a distance from the theatre of war.”).

321 FINAL REPORT ON THE PERSIAN GULF WAR 627 (“Under Article 11 of Hague V and traditional law of war 

principles regarding neutral rights and obligations, when belligerent military aircraft land in a nation not party to a 

conflict, the neutral must intern the aircraft, aircrew, and accompanying military personnel for the duration of the 

war.”).

322 Refer to § 15.18.1 (Authorized Ground Transports of Wounded and Sick Combatants Through Neutral Territory).
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15.16.2.1 Wounded, Sick, and Shipwrecked Landed in Neutral Ports. Wounded, 

sick, or shipwrecked persons who are landed in neutral ports with the consent of the local 

authorities shall, failing arrangements to the contrary between the neutral State and the 

belligerent States, be so guarded by the neutral State, where so required by international law, that 

such persons cannot again take part in operations of war.323 

The costs of hospital accommodation and internment shall be borne by the belligerent 

State on whom the wounded, sick, or shipwrecked persons depend.324

15.16.2.2 Wounded, Sick, and Shipwrecked Taken Aboard a Neutral State’s 

Warship or Aircraft. If wounded, sick, or shipwrecked persons are taken on board a neutral 

State’s warship or a neutral State’s military aircraft, it shall be ensured, where so required by 

international law, that they can take no further part in operations of war.325

15.16.2.3 Wounded and Sick Disembarked From Belligerent Medical Aircraft. 

Unless otherwise agreed between the neutral State and the belligerent States, the wounded and 

sick who are disembarked, with the consent of the local authorities, on neutral territory by 

medical aircraft, shall be detained by the neutral State, where so required by international law, in 

such a manner that they cannot again take part in military operations.326 

The cost of their accommodation and internment shall be borne by the State on which 

they depend.327

15.16.3 Conditions of Internment in a Neutral State. The neutral State may keep 

belligerent forces in camps and even confine them in military compounds or in places set apart 

for the purpose of internment.

328 Belligerent forces should be interned, as far as possible, at a 

 323 GWS-SEA art. 17 (“Wounded, sick or shipwrecked persons who are landed in neutral ports with the consent of 

the local authorities, shall, failing arrangements to the contrary between the neutral and the belligerent Powers, be so 

guarded by the neutral Power, where so required by international law, that the said persons cannot again take part in 

operations of war.”).

324 GWS-SEA art. 17 (“The costs of hospital accommodation and internment shall be borne by the Power on whom 

the wounded, sick or shipwrecked persons depend.”).

325 GWS-SEA art. 15 (“If wounded, sick, or shipwrecked persons are taken on board a neutral warship or a neutral 

military aircraft, it shall be ensured, where so required by international law, that they can take no further part in 

operations of war.”).

326 GWS art. 37 (“Unless otherwise agreed between the neutral Power and the Parties to the conflict, the wounded 

and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall 

be detained by the neutral Power, where so required by international law, in such a manner that they cannot again 

take part in operations of war.”); GWS-SEA art. 40 (same).

327 GWS art. 37 (“The cost of their accommodation and internment shall be borne by the Power on which they 

depend.”); GWS-SEA art. 40 (same).

328 HAGUE V art. 11 (“It may keep them in camps and even confine them in fortresses or in places set apart for this 

purpose.”).
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distance from the theater of war.329

15.16.3.1 Provision of POW Treatment and Application of the GWS and GWSSea by Analogy. Under Article 4B(2) of the GPW, persons who are entitled to POW status if 

they fall into the power of the enemy during international armed conflict are generally entitled to 

POW treatment, as a minimum, if they are interned by a neutral State under its duties under 

international law.330

Provisions of the GWS and GWS-Sea apply by analogy to wounded and sick, to 

members of the medical personnel, and to chaplains of the armed forces of the parties to the 

conflict, who are received or interned in neutral territory, as well as to deceased persons of a 

State that is a party to a conflict found there.331

15.16.3.2 Belligerent State Acting as the Protecting Power. Where diplomatic 

relations exist between the parties to the conflict and the neutral or non-belligerent Power 

concerned, the parties to a conflict on whom these persons depend shall be allowed to perform 

towards them the functions of a Protecting Power as provided in the GPW, without prejudice to 

the functions that these parties normally exercise in conformity with diplomatic and consular 

usage and treaties.332

15.16.3.3 Reimbursement of Expenses at the Conclusion of Peace. In the absence 

of a special convention to the contrary, the neutral Power shall supply the interned with the food, 

clothing, and relief required by humanity.333 At the conclusion of peace, the neutral Power’s 

 329 HAGUE V art. 11 (“A neutral Power which receives on its territory troops belonging to the belligerent armies shall 

intern them, as far as possible, at a distance from the theatre of war.”). Refer to § 9.11.4.1 (Avoidance of the 

Combat Zone); § 9.11.3 (Location of POW Camps).

330 GPW art. 4B (“The following shall likewise be treated as prisoners of war under the present Convention: ... (2) 

The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral 

or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, 

without prejudice to any more favourable treatment which these Powers may choose to give and with the exception 

of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to 

the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. 

Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to 

perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice 

to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and 

treaties.”). Refer to § 9.3.3 (Persons Entitled to POW Treatment).

331 GWS art. 4 (“Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded 

and sick, and to members of the medical personnel, and to chaplains of the armed forces of the Parties to the 

conflict, received or interned in their territory, as well as to dead persons found.”); GWS-SEA art. 5 (“Neutral 

Powers shall apply by analogy the provisions of the present Convention to the wounded, sick and shipwrecked, and 

to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received or 

interned in their territory, as well as to dead persons found.”).

332 GPW art. 4B(2) (“Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend 

shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, 

without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular 

usage and treaties.”).

333 HAGUE V art. 12 (“In the absence of a special convention to the contrary, the neutral Power shall supply the 

interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by 

the internment shall be made good.”).
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expenses incurred supporting the internment shall be made good.334 

The provisions of the GPW regarding the costs of POW internment and the financial 

resources of POWs are not applicable to the situation of persons treated as POWs who have been 

interned by a neutral State.

335

15.16.4 Parole of Belligerent Personnel Interned in Neutral Territory. The neutral State 

shall decide whether interned officers can be left at liberty on giving their parole not to leave the 

neutral territory without permission.336 

Neutral States may release enlisted personnel on parole, prescribe penalties for violations 

of parole, and authorize personnel to depart neutral territory temporarily so long as these actions 

remain consistent with its obligations as a neutral State.

337 The granting of leave to an interned 

officer to return to his or her own country, however, would be considered an exceptional 

measure, and a neutral State inclined to grant such permission would be prudent in the first 

instance to obtain the consent of the opposing belligerent State.

A neutral State may demand the return of persons who have been released on parole but 

have left the neutral State in violation of their parole.338 If such persons return to the State in 

 334 For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES 

CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 293 footnote 2 

(1909) (“The most striking example of internment occurred in 1871 during the Franco-Prussian war when over 

80,000 French troops under General Clinchant entered Swiss territory and were interned for the remainder of the 

war; France at the conclusion of the war paid to Switzerland some 11 million francs for their maintenance.”).

335 See GPW art. 4B (“The following shall likewise be treated as prisoners of war under the present Convention: ... 

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by 

neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international 

law, without prejudice to any more favourable treatment which these Powers may choose to give and with the 

exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the 

Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting 

Power.”) (emphasis added).

336 HAGUE V art. 11 (“It shall decide whether officers can be left at liberty on giving their parole not to leave the 

neutral territory without permission.”).

337 Cf. JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907

147-48 (1920) (“Article 57, paragraph 3, of the [1899 Hague] Regulations leaves it to the neutral State to decide 

whether interned officers may be left at liberty on giving their parole not to leave the neutral territory without 

permission. It does not say upon what conditions a permission to leave this territory should be predicated; neither 

does it provide any penalty for violation of the parole. Finally, it does not mention either non-commissioned 

officers or private soldiers. The Japanese delegation proposed to fill this gap by deciding: (1) that the interned men, 

without distinction of rank, cannot be liberated nor permitted to reenter their country except with the consent of the 

adverse party under conditions fixed by it; (2) that the parole given in such cases to the neutral State would be 

equivalent to a parole given to the adverse party. Without ignoring the merits of this proposal, the Commission 

preferred to continue the existing text of the Regulations. It considered that permission given to an interned man to 

return temporarily to his country is something too exceptional to require regulation in express terms. There was no 

difficulty, moreover, in recognizing that the Japanese proposal conforms to recent precedents and contains a useful 

hint for a neutral State desirous of remaining entirely free from responsibility.”).

338 For example, Robert Lansing, The Secretary of State to the German Ambassador, Nov. 16, 1915, reprinted in

JAMES BROWN SCOTT, DIPLOMATIC CORRESPONDENCE BETWEEN THE UNITED STATES AND GERMANY AUGUST 1,

1914 - APRIL 6, 1917, 163 (1918) (“It will be recalled that during the Russo-Japanese War, when the Russian Ship 
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whose armed forces they serve, that State is obliged to return them to the neutral State at its 

request.339

15.16.5 Military Equipment and Supplies of Belligerent Forces Taking Refuge. The 

munitions, arms, vehicles, equipment, and other supplies that the interned forces are allowed to 

bring with them into a neutral State are likewise detained by the neutral State. A belligerent 

State’s military equipment and supplies, whether its own or captured, which are brought on to 

neutral territory must be returned at the end of the armed conflict to the State to which the items 

belong. Similarly, captured war material found in the possession of the belligerent forces that 

take refuge on neutral territory is the property of their State, regardless of its origin.340

15.16.6 Retention of Medical Personnel and Chaplains in a Neutral State. Medical and 

religious personnel serving with belligerent forces that are interned in neutral territory may be 

retained only in so far as the health and the numbers of such forces so require.341 Subject to 

these requirements, they must be returned as soon as possible to the State to which they 

belong.342 Chaplains are in the same position, their retention being dependent upon the spiritual 

needs of the interned forces.

343 Medical personnel and chaplains who are retained must be 

accorded similar treatment to those retained under the GPW.344

15.17 POWS OR INTERNEES BROUGHT TO, OR RECEIVED BY, A NEUTRAL STATE

15.17.1 Escaped POWs Received by a Neutral State. POWs who have escaped to neutral 

 

Lena was interned by the United States Authorities on the Pacific coast, three officers of that ship escaped and 

returned to Russia; and that upon the Government of the United States calling the matter to the attention of the 

Russian Government it immediately caused the escaped officers to return to American jurisdiction where they were 

interned for the remainder of the war. This precedent this Government regards as in accord with the best practice of 

nations and applicable to the cases which I have had the honor to present in this note.”).

339 1956 FM 27-10 (Change No. 1 1976) ¶535 (“Officers and men interned in a neutral State may in the discretion of 

that State be released on their parole under conditions to be prescribed by the neutral State. If such persons leave the 

neutral State in violation of their parole, the State in whose armed forces they serve is obliged to return them to the 

neutral State at its request.”).

340 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907

145 (1920) (“What becomes of the war material captured by troops and brought with them into the territory of a 

neutral State? This question was put by the Dutch delegation, which made the following motion: ‘War material 

captured from the enemy by an armed force and brought with it while taking refuge on neutral territory shall be 

restored by the Government thereof to the State from which it was taken after the conclusion of peace.’ But the 

Netherland delegation did not insist on its motion in the face of the objection made to it. On the one hand, the case 

of war material captured from the enemy cannot be assimilated to the case of prisoners of war. The capture of 

matériel creates for the captor an immediate right of ownership, which places this matériel on the same footing as 

the captor’s own matériel. On the other hand, even if the captor’s right to the property should become uncertain, 

owing to his taking refuge in the neutral territory, there would be no reason for making the neutral State the judge of 

the question and for imposing on it the invidious duty of examining the matériel brought into its territory by a 

belligerent force to see what has been taken from the enemy and what belongs to the force under some other title.”).

341 Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

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

343 Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

344 Refer to § 7.9.5 (Rights and Privileges of Retained Personnel).
1006

territory are deemed to have successfully escaped from the Detaining Power.

345 

A neutral State may deny the admission of escaped POWs or receive them. A neutral 

State that receives escaped POWs shall leave them at liberty. If it allows them to remain in its 

territory, it may assign them a place of residence.346

15.17.2 POWs Brought Into a Neutral State by Belligerent Forces Taking Refuge. POWs 

brought into a neutral State by belligerent forces that take refuge in the neutral State are treated 

like POWs who have escaped to neutral territory.347 This means that the POWs regain their 

liberty from the belligerent forces that previously held them captive, and that if the neutral State 

allows them to remain on its territory, it may assign them a place of residence.

POWs brought into a neutral State by belligerent forces taking refuge are released from 

their captivity by the belligerent forces that previously held them because of a concern that the 

detention operations by the belligerent forces would constitute a form of continuation of 

hostilities on neutral territory and because the POWs probably would have been freed had the 

belligerent forces not taken refuge in neutral territory.348

15.17.3 POWs Brought to a Neutral State by Special Agreement Among the Neutral State 

and the Parties to a Conflict. POWs may be brought to a neutral State for internment by a special 

agreement among the neutral State and the parties to the conflict.

349 Wounded and sick POWs 

may also be brought to neutral countries for accommodation by a special agreement among the 

neutral State and the parties to the conflict.350

Such special agreements must not adversely affect the situation of POWs, nor restrict the 

 345 Refer to § 9.25.1.1 (Types of Successful Escapes).

346 HAGUE V art. 13 (“A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it 

allows them to remain in its territory it may assign them a place of residence.”).

347 HAGUE V art. 13 (“A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it 

allows them to remain in its territory it may assign them a place of residence. The same rule applies to prisoners of 

war brought by troops taking refuge in the territory of a neutral Power.”).

348 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907

144 (1920) (“Ought prisoners of war brought into the territory of a neutral State by belligerent troops who take 

refuge there, to become free, or should they be interned like the troops? Upon the motion of the Netherland 

delegation the Commission declared for the first solution. The only obstacle to the freedom of the prisoners here 

referred to lies in the actual power that the belligerent forces which captured them are exercising over them, and this 

actual power vanishes the moment the captor takes refuge in the territory of a neutral State. Moreover, troops taking 

this extreme step, do so in order to escape from an enemy who is pressing them, and from a capitulation whose 

effect would of course be to free the prisoners in their power.”); Caleb Cushing, Attorney General, Belligerent 

Asylum, Apr. 28, 1855, 7 OPINIONS OF THE ATTORNEY GENERAL 122, 131 (1856) (“From all these premises, the 

consequences are inevitable in regard to the prisoners on board the Sitka. So long as they remained on board that 

ship, they were in the territory and jurisdiction of her sovereign. There, the neutral has no right to meddle with 

them. If, indeed, they be landed, then they pass from the jurisdiction of the belligerent to that of the neutral; they 

become practically free, because their detention is forcible, and force cannot be exercised on the neutral territory;”).

349 Refer to § 9.36.3 (Agreements to Intern POWs in Neutral Territory).

350 Refer to § 9.36.2 (Accommodation in Neutral Countries).
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rights that the GPW confers upon them.351

15.17.4 Certain Classes of Protected Persons Brought to a Neutral State by Special 

Agreement Among the Neutral State and the Parties to a Conflict. Certain classes of civilian 

internees may be brought to a neutral State for internment by a special agreement among the 

neutral State and the parties to the conflict.

352 Agreements may also be concluded for children 

under the age of fifteen who are orphaned or separated from their families to stay in neutral 

countries.353

Such special agreements must not adversely affect the situation of protected persons nor 

restrict the rights that the GC confers upon them.

354

15.18 AUTHORIZED PASSAGE OF WOUNDED AND SICK COMBATANTS THROUGH NEUTRAL 

TERRITORY

Ground transports of wounded and sick combatants may pass through a neutral State’s 

land territory with the permission of the neutral State. Subject to rules established by the neutral 

State, medical aircraft of belligerent States may fly over the territory of neutral States, land on it 

in case of necessity, or use it as a port of call.

15.18.1 Authorized Ground Transports of Wounded and Sick Combatants Through 

Neutral Territory. A neutral State may authorize the passage into its territory of wounded or sick 

persons belonging to belligerent forces, on condition that such transports shall carry neither 

personnel nor material of war.355 In such a case, the neutral Power is bound to take whatever 

measures of safety and control are necessary for the purpose.356

However, if any such persons are committed to the care of the neutral State or remain in 

the neutral State’s territory, they must be guarded so as to ensure they do not take part again in 

the war.357 

15.18.1.1 Discretion of the Neutral State to Authorize Such Passage. The neutral 

State has the right, but not the obligation, to permit such passage; if provided, such passage 

 351 Refer to § 9.1.2.2 (Special Agreements Under the GPW).

352 Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain 

Classes of Internees).

353 Refer to § 4.20.1.1 (Children Under Fifteen Who Are Orphaned or Separated).

354 Refer to § 10.1.1.2 (Special Agreements Under the GC).

355 HAGUE V art. 14 (“A neutral Power may authorize the passage into its territory of wounded or sick belonging to 

the belligerent armies, on condition that the trains bringing them shall carry neither personnel or material of war.”).

356 HAGUE V art. 14 (“In such a case, the neutral Power is bound to take whatever measures of safety and control are 

necessary for the purpose.”).

357 Refer to § 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).
1008

should be provided on an impartial basis to all belligerent States.358

It is not necessary to obtain the consent of the other belligerent States before permitting 

the passage of sick and wounded personnel, but it would be advisable to do so if considerable 

numbers are involved.359

15.18.1.2 Personnel or Material of War Accompanying the Wounded or Sick. A 

neutral State permitting the passage of sick and wounded into and through its territory must take 

measures of safety and control to ensure that combatants or military supplies do not accompany 

them. If combatants accompany the passage of the wounded and sick, they should be 

interned.360 Similarly, any military supplies must be seized and placed in safe custody until the 

end of the conflict.361

Medical personnel and materials necessary for the care of the wounded and sick of a 

convoy of evacuation may be permitted to accompany the convoy.362

15.18.1.3 Wounded and Sick POWs Brought Into Neutral Territory Under 

Authorized Ground Transports. Wounded and sick POWs brought by one of the belligerents as 

part of a convoy of evacuation that is granted passage through neutral territory, and belonging to 

the hostile party, must be guarded by the neutral State so as to ensure they do not take part again 

in the operations of the war.363 

Thus, wounded and sick and POWs brought into neutral territory by the Detaining Power 

as part of a convoy of evacuation granted right of passage through neutral territory are not treated 

like escaping POWs or POWs brought by belligerent forces seeking asylum in neutral territory 

 358 1956 FM 27-10 (Change No. 1 1976) ¶541 (“The neutral power is under no obligation to permit the passage of a 

convoy of sick and wounded through its territory, but when such a convoy is permitted to pass, the neutral must 

exercise control, must see that neither personnel nor material other than that necessary for the care of the sick and 

wounded is carried, and generally must accord impartiality of treatment to the belligerents.”); 2004 UK MANUAL

¶8.162 (“It is under no obligation to do so but if the privilege is accorded, it must be given to all belligerent states 

impartially.”).

359 For example, 2004 UK MANUAL ¶8.162.1 footnote 427 (“After the battle of Sedan in the Franco-German war of 

1870–71, the German General Staff wished to send railway trains conveying wounded to Germany through Belgium 

and Luxembourg. The French Minister of War protested. He argued, rightly, that this would free lines to bring 

forward fresh soldiers and ammunition. Belgium, after consulting the British government, decided that, if one of the

belligerents objected, the giving of permission would be a breach of neutrality, and therefore refused it. 

Luxembourg took the opposite view and granted it. Under international law, Luxembourg was correct in its 

reasoning but, in view of the cogent arguments put forward by France, Belgium was right in its decision.”).

360 Refer to § 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).

361 Refer to § 15.16.5 (Military Equipment and Supplies of Belligerent Forces Taking Refuge).

362 1956 FM 27-10 (Change No. 1 1976) ¶545 (“Medical personnel and materials necessary for the care of the sick 

and wounded of a convoy of evacuation, permitted to pass through neutral territory under Article 14, H. V (par. 

539), may be permitted to accompany the convoy.”).

363 HAGUE V art. 14 (“The wounded and sick brought under these conditions into neutral territory by one of the 

belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking 

part again in the operations of the war.”).
1009

(i.e., transported to their own country or liberated).364 Instead, they are treated like other 

wounded, sick, and shipwrecked combatants who are received within neutral territory, and they 

must be guarded by the neutral State.365

15.18.1.4 Wounded and Sick Combatants Committed to the Care of the Neutral 

State. Wounded and sick combatants brought under these conditions into neutral territory by one 

of the belligerents, and who do not simply pass through neutral territory but are committed to the 

care of the neutral State, must be guarded by the neutral State so as to ensure they do not take 

part again in the operations of the war.366

15.18.2 Medical Aircraft and Neutral Territory. Subject to conditions and restrictions 

established by the neutral State, medical aircraft of belligerent States may fly over the territory of 

neutral States, land on it in case of necessity, or use it as a port of call.367 Belligerent States shall 

give the neutral States previous notice of their passage over the neutral State and obey all 

summons to alight, on land or water.368

The neutral State may place conditions or restrictions on the passage or landing of 

medical aircraft on its territory.369 Such conditions or restrictions shall be applied equally to all 

belligerent States.

370 Belligerent States’ medical aircraft would be immune from attack only 

when flying on routes, at heights, and at times specifically agreed upon between the belligerent 

States and the neutral State concerned.371

As a general matter, the wounded and sick who are disembarked, with the consent of the 

local authorities, on neutral territory by medical aircraft, shall be detained by the neutral State, 

where so required by international law, in such a manner that they cannot again take part in 

 364 1956 FM 27-10 (Change No. 1 1976) ¶543 (“Sick and wounded prisoners of war brought into neutral territory by 

the Detaining Power as part of a convoy of evacuation granted right of passage through neutral territory may not be 

transported to their own country or liberated, as are prisoners of war escaping into, or brought by troops seeking 

asylum in neutral territory, but must be detained by the neutral power, subject to the provisions contained in 

paragraphs 188 through 196.”).

365 Refer to § 15.16.2 (Neutral Reception of the Wounded, Sick, and Shipwrecked).

366 HAGUE V art. 14 (“The wounded and sick brought under these conditions into neutral territory by one of the 

belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking 

part again in the operations of the war. The same duty shall devolve on the neutral State with regard to wounded or 

sick of the other army who may be committed to its care.”).

367 GWS art. 37 (“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may 

fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.”); GWS-SEA art. 40 

(same).

368 GWS art. 37 (“They shall give the neutral Powers previous notice of their passage over the said territory and 

obey all summons to alight, on land or water.”); GWS-SEA art. 40 (same).

369 GWS art. 37 (“The neutral Powers may, however, place conditions or restrictions on the passage or landing of 

medical aircraft on their territory.”); GWS-SEA art. 40 (same).

370 GWS art. 37 (“Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.”); 

GWS-SEA art. 40 (same).

371 GWS art. 37 (“They will be immune from attack only when flying on routes, at heights and at times specifically 

agreed upon between the Parties to the conflict and the neutral Power concerned.”); GWS-SEA art. 40 (same).
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military operations.372

 372 Refer to § 15.16.2.3 (Wounded and Sick Disembarked From Belligerent Medical Aircraft).
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XVI – Cyber Operations

Chapter Contents

16.1 Introduction

16.2 Application of the Law of War to Cyber Operations

16.3 Cyber Operations and Jus ad Bellum

16.4 Cyber Operations and the Law of Neutrality

16.5 Cyber Operations and Jus in Bello

16.6 Legal Review of Weapons That Employ Cyber Capabilities

16.1 INTRODUCTION

This Chapter addresses the law of war and cyber operations. It addresses how law of war 

principles and rules apply to relatively novel cyber capabilities and the cyber domain. 

As a matter of U.S. policy, the United States has sought to work internationally to clarify 

how existing international law and norms, including law of war principles, apply to cyber 

operations.1

Precisely how the law of war applies to cyber operations is not well-settled, and aspects 

of the law in this area are likely to continue to develop, especially as new cyber capabilities are 

developed and States determine their views in response to such developments.

2

 1 See, e.g., United States Submission to the U.N. Group of Governmental Experts on Developments in the Field of 

Information and Telecommunications in the Context of International Security (2014–15), 1 (“But the challenge is 

not whether existing international law applies to State behavior in cyberspace. As the 2012–13 GGE affirmed, 

international law does apply, and such law is essential to regulating State conduct in this domain. The challenge is 

providing decision-makers with considerations that may be taken into account when determining how existing 

international law applies to cyber activities. Despite this challenge, history has shown that States, through 

consultation and cooperation, have repeatedly and successfully applied existing bodies of law to new technologies. 

It continues to be the U.S. view that all States will benefit from a stable international ICT [information and 

communication technologies] environment in which existing international law is the foundation for responsible State 

behavior in cyberspace.”); Barack Obama, International Strategy for Cyberspace: Prosperity, Security, and 

Openness in a Networked World, 9 (May 2011) (“The development of norms for state conduct in cyberspace does 

not require a reinvention of customary international law, nor does it render existing international norms obsolete. 

Long-standing international norms guiding state behavior—in times of peace and conflict—also apply in 

cyberspace. Nonetheless, unique attributes of networked technology require additional work to clarify how these 

norms apply and what additional understandings might be necessary to supplement them. We will continue to work 

internationally to forge consensus regarding how norms of behavior apply to cyberspace, with the understanding that 

an important first step in such efforts is applying the broad expectations of peaceful and just interstate conduct to 

cyberspace.”); DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress 

Pursuant to the National Defense Authorization Act for Fiscal Year 2011, Section 934, 7-8 (Nov. 2011) (“The 

United States is actively engaged in the continuing development of norms of responsible state behavior in 

cyberspace, making clear that as a matter of U.S. policy, long-standing international norms guiding state behavior 

also apply equally in cyberspace. Among these, applying the tenets of the law of armed conflict are critical to this 

vision, although cyberspace’s unique aspects may require clarifications in certain areas.”).

2 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in Information 

Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 459, 
1012

16.1.1 Cyberspace as a Domain. As a doctrinal matter, DoD has recognized cyberspace 

as an operational domain in which the armed forces must be able to defend and operate, just like 

the land, sea, air, and space domains.3

Cyberspace may be defined as “[a] global domain within the information environment 

consisting of interdependent networks of information technology infrastructures and resident 

data, including the Internet, telecommunications networks, computer systems, and embedded 

processors and controllers.”4

16.1.2 Description of Cyber Operations. Cyberspace operations may be understood to be 

those operations that involve “[t]he employment of cyberspace capabilities where the primary 

purpose is to achieve objectives in or through cyberspace.”5 Cyber operations: (1) use cyber 

capabilities, such as computers, software tools, or networks; and (2) have a primary purpose of 

achieving objectives or effects in or through cyberspace.

16.1.2.1 Examples of Cyber Operations. Cyber operations include those 

operations that use computers to disrupt, deny, degrade, or destroy information resident in 

computers and computer networks, or the computers and networks themselves. Cyber operations 

can be a form of advance force operations, which precede the main effort in an objective area in 

order to prepare the objective for the main assault. For example, cyber operations may include 

reconnaissance (e.g., mapping a network), seizure of supporting positions (e.g., securing access 

to key network systems or nodes), and pre-emplacement of capabilities or weapons (e.g., 

implanting cyber access tools or malicious code). In addition, cyber operations may be a method 

of acquiring foreign intelligence unrelated to specific military objectives, such as understanding 

 

464-65 (2002) (“The international community ordinarily does not negotiate treaties to deal with problems until their 

consequences have begun to be felt. This is not all bad, since the solution can be tailored to the actual problems that 

have occurred, rather than to a range of hypothetical possibilities. One consequence, however, is that the resulting 

law, whether domestic or international, may be sharply influenced by the nature of the events that precipitate legal 

developments, together with all their attendant policy and political considerations. ... Similarly, we can make some 

educated guesses as to how the international legal system will respond to information operations, but the direction 

that response actually ends up taking may depend a great deal on the nature of the events that draw the nations’ 

attention to the issue. If information operations techniques are seen as just another new technology that does not 

greatly threaten the nations’ interests, no dramatic legal developments may occur. If they are seen as a revolutionary 

threat to the security of nations and the welfare of their citizens, it will be much more likely that efforts will be made 

to restrict or prohibit information operations by legal means. These are considerations that national leaders should 

understand in making decisions on using information operations techniques in the current formative period, but it 

should also be understood that the course of future events is often beyond the control of statesmen.”).

3 William J. Lynn III, Deputy Secretary of Defense, Defending a New Domain: The Pentagon’s Cyberstrategy, 89 

FOREIGN AFFAIRS 97, 101 (Sept./Oct. 2010) (“As a doctrinal matter, the Pentagon has formally recognized 

cyberspace as a new domain of warfare. Although cyberspace is a man-made domain, it has become just as critical 

to military operations as land, sea, air, and space. As such, the military must be able to defend and operate within 

it.”).

4 JOINT PUBLICATION 3-12, Cyberspace Operations, GL-4 (Feb. 5, 2013) (“(U) Cyberspace. A global domain within 

the information environment consisting of interdependent networks of information technology infrastructures and 

resident data, including the Internet, telecommunications networks, computer systems, and embedded processors 

and controllers.”).

5 JOINT PUBLICATION 3-0, Joint Operations (Aug. 11, 2011) (“cyberspace operations. The employment of 

cyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace.”).
1013

technological developments or gaining information about an adversary’s military capabilities and 

intent. 

16.1.2.2 Examples of Operations That Would Not Be Regarded as Cyber 

Operations. Cyber operations generally would not include activities that merely use computers 

or cyberspace without a primary purpose of achieving objectives or effects in or through 

cyberspace. For example, operations that use computer networks to facilitate command and 

control, operations that use air traffic control systems, and operations to distribute information 

broadly using computers would generally not be considered cyber operations. 

Operations that target an adversary’s cyberspace capabilities, but that are not achieved in 

or through cyberspace, would not be considered cyber operations. For example, the 

bombardment of a network hub, or the jamming of wireless communications, would not be

considered cyber operations, even though they may achieve military objectives in cyberspace. 

16.1.3 Cyber Operations – Notes on Terminology. DoD doctrine and terminology for 

cyber operations continue to develop. 

16.1.3.1 “Cyber” Versus “Cyberspace” as an Adjective. The terms “cyber” and 

“cyberspace” when used as an adjective (e.g., cyber attack, cyber defense, cyber operation) are 

generally used interchangeably.

16.1.3.2 Cyber Attacks or Computer Network Attacks. The term “attack” often 

has been used in a colloquial sense in discussing cyber operations to refer to many different types 

of hostile or malicious cyber activities, such as the defacement of websites, network intrusions, 

the theft of private information, or the disruption of the provision of internet services.

Operations described as “cyber attacks” or “computer network attacks,” therefore, are not 

necessarily “attacks” for the purposes of applying rules on conducting attacks during the conduct 

of hostilities.6 Similarly, operations described as “cyber attacks” or “computer network attacks”

are not necessarily “armed attacks” for the purposes of triggering a State’s inherent right of selfdefense under jus ad bellum.

7

16.2 APPLICATION OF THE LAW OF WAR TO CYBER OPERATIONS

Specific law of war rules may apply to cyber operations, even though those rules were 

developed before cyber operations were possible. When no more specific law of war rule or 

other applicable rule applies, law of war principles provide a general guide for conduct during 

cyber operations in armed conflict.

16.2.1 Application of Specific Law of War Rules to Cyber Operations. Specific law of 

war rules may be applicable to cyber operations, even though these rules were developed long 

before cyber operations were possible.

 6 Refer to § 16.5.1 (Cyber Operations That Constitute “Attacks” for the Purpose of Applying Rules on Conducting 

Attacks).

7 Refer to § 16.3.3 (Responding to Hostile or Malicious Cyber Operations).
1014

The law of war affirmatively anticipates technological innovation and contemplates that 

its existing rules will apply to such innovation, including cyber operations.8

 Law of war rules 

may apply to new technologies because the rules often are not framed in terms of specific 

technological means. For example, the rules on conducting attacks do not depend on what type 

of weapon is used to conduct the attack. Thus, cyber operations may be subject to a variety of 

law of war rules depending on the rule and the nature of the cyber operation. For example, if the 

physical consequences of a cyber attack constitute the kind of physical damage that would be 

caused by dropping a bomb or firing a missile, that cyber attack would equally be subject to the 

same rules that apply to attacks using bombs or missiles.

9

Cyber operations may pose challenging legal questions because of the variety of effects 

they can produce. For example, cyber operations could be a non-forcible means or method of 

conducting hostilities (such as information gathering), and would be regulated as such under 

rules applicable to non-forcible means and methods of warfare.

10 Other cyber operations could 

be used to create effects that amount to an attack and would be regulated under the rules on 

conducting attacks.11 Moreover, another set of challenging issues may arise when considering 

whether a particular cyber operation might be regarded as a seizure or destruction of enemy 

property and should be assessed as such.12 

16.2.2 Application of Law of War Principles as a General Guide to Cyber Operations. 

When no specific rule applies, the principles of the law of war form the general guide for 

conduct during war, including conduct during cyber operations.13 For example, under the 

principle of humanity, suffering, injury, or destruction unnecessary to accomplish a legitimate 

military purpose must be avoided in cyber operations.14

 8 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as Prepared 

for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 HARVARD 

INTERNATIONAL LAW JOURNAL ONLINE, 3 (Dec. 2012) (“Cyberspace is not a ‘law-free’ zone where anyone can 

conduct hostile activities without rules or restraint. Think of it this way. This is not the first time that 

technology has changed and that international law has been asked to deal with those changes. In particular, because 

the tools of conflict are constantly evolving, one relevant body of law—international humanitarian law, or the law of 

armed conflict—affirmatively anticipates technological innovation, and contemplates that its existing rules will 

apply to such innovation.”).

9 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as Prepared 

for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 HARVARD 

INTERNATIONAL LAW JOURNAL ONLINE, 3-4 (Dec. 2012) (“In analyzing whether a cyber operation would constitute 

a use of force, most commentators focus on whether the direct physical injury and property damage resulting from 

the cyber event looks like that which would be considered a use of force if produced by kinetic weapons. For 

example, cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as 

a use of force. ... Only a moment’s reflection makes you realize that this is common sense: if the physical 

consequences of a cyber attack work the kind of physical damage that dropping a bomb or firing a missile would, 

that cyber attack should equally be considered a use of force.”).

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

11 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

12 Refer to § 5.17 (Seizure and Destruction of Enemy Property).

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

14 Refer to § 2.3 (Humanity).
1015

Certain cyber operations may not have a clear kinetic parallel in terms of their 

capabilities and the effects they create.

15 Such operations may have implications that are quite 

different from those presented by attacks using traditional weapons, and those different 

implications may well yield different conclusions.16

16.3 CYBER OPERATIONS AND JUS AD BELLUM

Cyber operations may present issues under the law of war governing the resort to force 

(i.e., jus ad bellum).17

16.3.1 Prohibition on Cyber Operations That Constitute Illegal Uses of Force Under 

Article 2(4) of the Charter of the United Nations. Article 2(4) of the Charter of the United 

Nations states that “[a]ll Members shall refrain in their international relations from the threat or 

use of force against the territorial integrity or political independence of any state, or in any other 

manner inconsistent with the Purposes of the United Nations.”18

Cyber operations may in certain circumstances constitute uses of force within the 

meaning of Article 2(4) of the Charter of the United Nations and customary international law.19 

For example, if cyber operations cause effects that, if caused by traditional physical means, 

would be regarded as a use of force under jus ad bellum, then such cyber operations would likely 

also be regarded as a use of force. Such operations may include cyber operations that: (1) 

trigger a nuclear plant meltdown; (2) open a dam above a populated area, causing destruction; or 

(3) disable air traffic control services, resulting in airplane crashes.

20 Similarly, cyber operations 

 15 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 7 (Dec. 2012) (“I have also noted some clear-cut cases where the 

physical effects of a hostile cyber action would be comparable to what a kinetic action could achieve: for example, 

a bomb might break a dam and flood a civilian population, but insertion of a line of malicious code from a distant 

computer might just as easily achieve that same result. As you all know, however, there are other types of cyber 

actions that do not have a clear kinetic parallel, which raise profound questions about exactly what we mean by 

‘force.’”).

16 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 490 (2002) (“In the process of reasoning by analogy to the law applicable to traditional weapons, it 

must always be kept in mind that computer network attacks are likely to present implications that are quite different 

from the implications presented by attacks with traditional weapons. These different implications may well yield 

different conclusions.”).

17 Refer to § 1.11 (Jus ad Bellum).

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

19 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 3 (Dec. 2012) (“Cyber activities may in certain circumstances 

constitute uses of force within the meaning of Article 2(4) of the UN Charter and customary international law.”).

20 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“Commonly cited examples of cyber activity that 
1016

that cripple a military’s logistics systems, and thus its ability to conduct and sustain military 

operations, might also be considered a use of force under jus ad bellum.

21 Other factors, besides 

the effects of the cyber operation, may also be relevant to whether the cyber operation constitutes 

a use of force under jus ad bellum.

22

Cyber operations that constitute uses of force within the meaning of Article 2(4) of the 

Charter of the United Nations and customary international law must have a proper legal basis in 

order not to violate jus ad bellum prohibitions on the resort to force.

23

16.3.2 Peacetime Intelligence and Counterintelligence Activities. International law and 

long-standing international norms are applicable to State behavior in cyberspace,24 and the 

question of the legality of peacetime intelligence and counterintelligence activities must be 

considered on a case-by-case basis. Generally, to the extent that cyber operations resemble 

traditional intelligence and counter-intelligence activities, such as unauthorized intrusions into 

computer networks solely to acquire information, then such cyber operations would likely be 

treated similarly under international law.

25 The United States conducts such activities via 

cyberspace, and such operations are governed by long-standing and well-established 

considerations, including the possibility that those operations could be interpreted as a hostile 

act.26

16.3.3 Responding to Hostile or Malicious Cyber Operations. A State’s inherent right of 

self-defense, recognized in Article 51 of the Charter of the United Nations, may be triggered by 

 

would constitute a use of force include, for example, (1) operations that trigger a nuclear plant meltdown, (2) 

operations that open a dam above a populated area causing destruction, or (3) operations that disable air traffic 

control resulting in airplane crashes.”).

21 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 483 (2002) (“Even if the systems attacked were unclassified military logistics systems, an attack on 

such systems might seriously threaten a nation’s security. For example, corrupting the data in a nation’s 

computerized systems for managing its military fuel, spare parts, transportation, troop mobilization, or medical 

supplies may seriously interfere with its ability to conduct military operations. In short, the consequences are likely 

to be more important than the means used.”).

22 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“In assessing whether an event constituted a use 

of force in or through cyberspace, we must evaluate factors including the context of the event, the actor perpetrating 

the action (recognizing challenging issues of attribution in cyberspace), the target and location, effects and intent, 

among other possible issues.”).

23 Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

24 Refer to § 16.1 (Introduction).

25 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 518 (2002).

26 DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress Pursuant to 

the National Defense Authorization Act for Fiscal Year 2011, Section 934, 6-7 (Nov. 2011).
1017

cyber operations that amount to an armed attack or imminent threat thereof.27 As a matter of 

national policy, the United States has expressed the view that when warranted, it will respond to 

hostile acts in cyberspace as it would to any other threat to the country.28

Measures taken in the exercise of the right of national self-defense in response to an 

armed attack must be reported immediately to the U.N. Security Council in accordance with 

Article 51 of the Charter of the United Nations.

29

16.3.3.1 Use of Force Versus Armed Attack. The United States has long taken the 

position that the inherent right of self-defense potentially applies against any illegal use of 

force.30 Thus, any cyber operation that constitutes an illegal use of force against a State 

potentially gives rise to a right to take necessary and proportionate action in self-defense.31

16.3.3.2 No Legal Requirement for a Cyber Response to a Cyber Attack. There is 

no legal requirement that the response in self-defense to a cyber armed attack take the form of a 

cyber action, as long as the response meets the requirements of necessity and proportionality.32

 27 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“Question 4: May a state ever respond to a 

computer network attack by exercising a right of national self-defense? Answer 4: Yes. A state’s national right 

of self-defense, recognized in Article 51 of the UN Charter, may be triggered by computer network activities 

that amount to an armed attack or imminent threat thereof.”); Barack Obama, International Strategy for 

Cyberspace: Prosperity, Security, and Openness in a Networked World, 10 (May 2011) (“Right of Self-Defense: 

Consistent with the United Nations Charter, states have an inherent right to self-defense that may be triggered by 

certain aggressive acts in cyberspace.”).

28 Barack Obama, International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked 

World, 14 (May 2011) (“When warranted, the United States will respond to hostile acts in cyberspace as we would 

to any other threat to our country. All states possess an inherent right to self-defense, and we recognize that certain 

hostile acts conducted through cyberspace could compel actions under the commitments we have with our military 

treaty partners. We reserve the right to use all necessary means—diplomatic, informational, military, and 

economic—as appropriate and consistent with applicable international law, in order to defend our Nation, our allies, 

our partners, and our interests. In so doing, we will exhaust all options before military force whenever we can; will 

carefully weigh the costs and risks of action against the costs of inaction; and will act in a way that reflects our 

values and strengthens our legitimacy, seeking broad international support whenever possible.”).

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

30 Refer to § 1.11.5.2 (Use of Force Versus Armed Attack).

31 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 7 (Dec. 2012) (“To cite just one example of this, the United 

States has for a long time taken the position that the inherent right of self-defense potentially applies against any

illegal use of force. In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that 

may warrant a forcible response. But that is not to say that any illegal use of force triggers the right to use any and 

all force in response—such responses must still be necessary and of course proportionate.”).

32 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“There is no legal requirement that the response 

to a cyber armed attack take the form of a cyber action, as long as the response meets the requirements of necessity 

and proportionality.”).
1018

16.3.3.3 Responses to Hostile or Malicious Cyber Acts That Do Not Constitute 

Uses of Force. Although cyber operations that do not constitute uses of force under jus ad 

bellum would not permit injured States to use force in self-defense, those injured States may be 

justified in taking necessary and appropriate actions in response that do not constitute a use of 

force.33 Such actions might include, for example, a diplomatic protest, an economic embargo, or 

other acts of retorsion.34

16.3.3.4 Attribution and Self-Defense Against Cyber Operations. Attribution may 

pose a difficult factual question in responding to hostile or malicious cyber operations because 

adversaries may be able to hide or disguise their activities or identities in cyberspace more easily

than in the case of other types of operations.

35

A State’s right to take necessary and proportionate action in self-defense in response to 

an armed attack originating through cyberspace applies whether the attack is attributed to another 

State or to a non-State actor.

36 

16.3.3.5 Authorities Under U.S. Law to Respond to Hostile Cyber Acts. Decisions 

about whether to invoke a State’s inherent right of self-defense would be made at the national 

level because they involve the State’s rights and responsibilities under international law. For 

example, in the United States, such decisions would generally be made by the President.

The Standing Rules of Engagement for U.S. forces have addressed the authority of the 

U.S. armed forces to take action in self-defense in response to hostile acts or hostile intent, 

 33 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 482 (2002) (“There is also a general recognition of the right of a nation whose rights under 

international law have been violated to take countermeasures against the offending state, in circumstances where 

neither the provocation nor the response involves the use of armed force. For example, an arbitral tribunal in 1978 

ruled that the United States was entitled to suspend French commercial air flights into Los Angeles after the French 

had suspended U.S. commercial air flights into Paris. Discussions of the doctrine of countermeasures generally 

distinguish between countermeasures that would otherwise be violations of treaty obligations or of general 

principles of international law (in effect, reprisals not involving the use of armed force) and retorsions – actions that 

may be unfriendly or even damaging, but which do not violate any international legal obligation. The use of 

countermeasures is subject to the same requirements of necessity and proportionality as apply to self-defense.”).

34 Refer to § 18.17 (Retorsion).

35 DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress Pursuant to 

the National Defense Authorization Act for Fiscal Year 2011, Section 934, 4 (Nov. 2011) (“The same technical 

protocols of the Internet that have facilitated the explosive growth of cyberspace also provide some measure of 

anonymity. Our potential adversaries, both nations and non-state actors, clearly understand this dynamic and seek to 

use the challenge of attribution to their strategic advantage. The Department recognizes that deterring malicious 

actors from conducting cyber attacks is complicated by the difficulty of verifying the location from which an attack 

was launched and by the need to identify the attacker among a wide variety and high number of potential actors.”).

36 United States Submission to the U.N. Group of Governmental Experts on Developments in the Field of 

Information and Telecommunications in the Context of International Security 2012-2013, 2 (“As the United States 

noted in its 2010 submission to the GGE, the following established principles would apply in the context of an 

armed attack, whether it originated through cyberspace or not: • The right of self-defense against an imminent or 

actual armed attack applies whether the attacker is a State actor or a non-State actor.”). Refer to § 1.11.5.4 (Right of 

Self-Defense Against Non-State Actors).
1019

including such acts perpetrated in or through cyberspace.37

16.4 CYBER OPERATIONS AND THE LAW OF NEUTRALITY

The law of neutrality may be important in certain cyber operations. For example, under 

the law of neutrality, belligerent States are bound to respect the sovereign rights of neutral 

States.38 Because of the interconnected nature of cyberspace, cyber operations targeting 

networked information infrastructures in one State may create effects in another State that is not 

a party to the armed conflict.39

16.4.1 Cyber Operations That Use Communications Infrastructure in Neutral States. The 

law of neutrality has addressed the use of communications infrastructure in neutral States, and in 

certain circumstances, these rules would apply to cyber operations.

The use of communications infrastructure in neutral States may be implicated under the 

general rule that neutral territory may not serve as a base of operations for one belligerent against 

another.40 In particular, belligerent States are prohibited from erecting on the territory of a 

neutral State any apparatus for the purpose of communicating with belligerent forces on land or 

sea, or from using any installation of this kind established by them before the armed conflict on 

the territory of a neutral State for purely military purposes, and which has not been opened for 

the service of public messages.41

However, merely relaying information through neutral communications infrastructure 

(provided that the facilities are made available impartially) generally would not constitute a 

violation of the law of neutrality that belligerent States would have an obligation to refrain from 

and that a neutral State would have an obligation to prevent.42 This rule was developed because 

it was viewed as impractical for neutral States to censor or screen their publicly available 

 37 See, e.g., CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules of 

Engagement/Standing Rules for the Use of Force for U.S. Forces, ¶6b(1) (June 13, 2005), reprinted in

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &

SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 95 (2007) (“Unit commanders always retain the inherent right 

and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless 

otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in 

response to a hostile act or demonstrated hostile intent.”).

38 Refer to § 15.3.1 (Neutral Rights).

39 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 6 (Dec. 2012) (“States conducting activities in cyberspace must 

take into account the sovereignty of other states, including outside the context of armed conflict. The physical 

infrastructure that supports the Internet and cyber activities is generally located in sovereign territory and subject to 

the jurisdiction of the territorial state. Because of the interconnected, interoperable nature of cyberspace, operations 

targeting networked information infrastructures in one country may create effects in another country. Whenever a 

state contemplates conducting activities in cyberspace, the sovereignty of other states needs to be considered.”).

40 Refer to § 15.5 (Prohibition on the Use of Neutral Territory as a Base of Operations).

41 Refer to § 15.5.3 (Prohibition Against Establishment or Use of Belligerent Communications Facilities in Neutral 

Territory).

42 Refer to § 15.5.3.1 (Use of Neutral Facilities by Belligerents Not Prohibited).
1020

communications infrastructure for belligerent traffic.43 Thus, for example, it would not be 

prohibited for a belligerent State to route information through cyber infrastructure in a neutral 

State that is open for the service of public messages, and that neutral State would have no 

obligation to forbid such traffic. This rule would appear to be applicable even if the information 

that is being routed through neutral communications infrastructure may be characterized as a 

cyber weapon or otherwise could cause destructive effects in a belligerent State (but no 

destructive effects within the neutral State or States).

44

16.5 CYBER OPERATIONS AND JUS IN BELLO

This section addresses jus in bello rules and cyber operations.

16.5.1 Cyber Operations That Constitute “Attacks” for the Purpose of Applying Rules on

Conducting Attacks. If a cyber operation constitutes an attack, then the law of war rules on 

conducting attacks must be applied to those cyber operations.45 For example, such operations 

 43 Colonel Borel, Report to the Conference from the Second Commission on Rights and Duties of Neutral States on 

Land, in JAMES BROWN SCOTT, THE REPORTS TO THE HAGUE CONFERENCES OF 1899 AND 1907, 543 (1917) (“We 

are here dealing with cables or apparatus belonging either to a neutral State or to a company or individuals, the 

operation of which, for the transmission of news, has the character of a public service. There is no reason to compel 

the neutral State to restrict or prohibit the use by the belligerents of these means of communication. Were it 

otherwise, objections of a practical kind would be encountered, arising out of the considerable difficulties in 

exercising control, not to mention the confidential character of telegraphic correspondence and the rapidity 

necessary to this service. Through his Excellency Lord Reay, the British delegation requested that it be specified 

that ‘the liberty of a neutral State to transmit messages, by means of its telegraph lines on land, its submarine cables 

or its wireless apparatus, does not imply that it has any right to use them or permit their use in order to render 

manifest assistance to one of the belligerents’. The justice of the idea thus stated was so great as to receive the 

unanimous approval of the Commission.”).

44 See DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress 

Pursuant to the National Defense Authorization Act for Fiscal Year 2011, Section 934, 8 (Nov. 2011) (“The issue of 

the legality of transporting cyber ‘weapons’ across the Internet through the infrastructure owned and/or located 

in neutral third countries without obtaining the equivalent of ‘overflight rights.’ There is currently no 

international consensus regarding the definition of a ‘cyber weapon.’ The often low cost of developing malicious 

code and the high number and variety of actors in cyberspace make the discovery and tracking of malicious cyber 

tools difficult. Most of the technology used in this context is inherently dual-use, and even software might be 

minimally repurposed for malicious action.”); Department of Defense, Office of the General Counsel, An 

Assessment of International Legal Issues in Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S.

NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 459, 489 (2002) (“There need be less concern for the reaction 

of nations through whose territory or communications systems a destructive message may be routed. If only the 

nation’s public communications systems are involved, the transited nation will normally not be aware of the routing 

such a message has taken. Even if it becomes aware of the transit of such a message and attributes it to the United 

States, there would be no established principle of international law that it could point to as being violated. As 

discussed above, even during an international armed conflict international law does not require a neutral nation to 

restrict the use of its public communications networks by belligerents. Nations generally consent to the free use of 

their communications networks on a commercial or reciprocal basis. Accordingly, use of a nation’s communications 

networks as a conduit for an electronic attack would not be a violation of its sovereignty in the same way that would 

be a flight through its airspace by a military aircraft.”).

45 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).
1021

must comport with the requirements of distinction and proportionality.46

For example, a cyber attack that would destroy enemy computer systems could not be 

directed against ostensibly civilian infrastructure, such as computer systems belonging to stock 

exchanges, banking systems, and universities, unless those computer systems met the test for 

being a military objective under the circumstances.47 A cyber operation that would not 

constitute an attack, but would nonetheless seize or destroy enemy property, would have to be 

imperatively demanded by the necessities of war.

48

16.5.1.1 Assessing Incidental Injury or Damage During Cyber Operations. The 

principle of proportionality prohibits attacks in which the expected loss of life or injury to 

civilians, and damage to civilian objects incidental to the attack, would be excessive in relation 

to the concrete and direct military advantage expected to be gained.49

For example, in applying this prohibition to cyber operations, it might be important to 

assess the potential effects of a cyber attack on computers that are not military objectives, such 

as private, civilian computers that hold no military significance, but that may be networked to 

computers that are valid military objectives.50

In assessing incidental injury or damage during cyber operations, it may be important to 

consider that remote harms and lesser forms of harm, such as mere inconveniences or temporary 

disruptions, need not be considered in assessing whether an attack is prohibited by the principle 

of proportionality.51 For example, a minor, brief disruption of internet services to civilians that 

results incidentally from a cyber attack against a military objective generally would not need to 

be considered in a proportionality analysis.

52 In addition, the economic harms in the belligerent 

 46 Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected 

to Cause Excessive Incidental Harm).

47 Refer to § 5.6 (Military Objectives).

48 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

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

50 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 8 (Dec. 2012) (“As you all know, information and 

communications infrastructure is often shared between state militaries and private, civilian communities. The law of 

war requires that civilian infrastructure not be used to seek to immunize military objectives from attack, including in 

the cyber realm. But how, exactly, are the jus in bello rules to be implemented in cyberspace? Parties to an armed 

conflict will need to assess the potential effects of a cyber attack on computers that are not military objectives, such 

as private, civilian computers that hold no military significance, but may be networked to computers that are valid 

military objectives. Parties will also need to consider the harm to the civilian uses of such infrastructure in 

performing the necessary proportionality review. Any number of factual scenarios could arise, however, which will 

require a careful, fact-intensive legal analysis in each situation.”).

51 Refer to § 5.12.1.2 (Loss of Life, Injury, and Damage Versus Mere Inconveniences or Temporary Disruptions).

52 Cf. Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the HPCR 

Manual on International Law Applicable to Air and Missile Warfare, 28 (A.1.e.7) (2010) (“The definition of 

‘attacks’ also covers ‘non-kinetic’ attacks (i.e. attacks that do not involve the physical transfer of energy, such as 

certain CNAs [computer network attacks]; see Rule 1(m)) that result in death, injury, damage or destruction of 

persons or objects. Admittedly, whether ‘non-kinetic’ operations rise to the level of an ‘attack’ in the context of the 
1022

State resulting from such disruptions, such as civilian businesses in the belligerent State being 

unable to conduct e-commerce, generally would not need to be considered in a proportionality 

analysis.53

Even if cyber operations that constitute attacks are not expected to result in excessive 

incidental loss of life or injury or damage such that the operation would be prohibited by the 

principle of proportionality, the party to the conflict nonetheless would be required to take 

feasible precautions to limit such loss of life or injury and damage in conducting those cyber 

operations.

54

16.5.2 Cyber Operations That Do Not Amount to an “Attack” Under the Law of War. A 

cyber operation that does not constitute an attack is not restricted by the rules that apply to 

attacks.

55 Factors that would suggest that a cyber operation is not an “attack” include whether 

the operation causes only reversible effects or only temporary effects. Cyber operations that 

generally would not constitute attacks include:

• defacing a government webpage;

• a minor, brief disruption of internet services;

• briefly disrupting, disabling, or interfering with communications; and

• disseminating propaganda.

Since such operations generally would not be considered attacks under the law of war, 

they generally would not need to be directed at military objectives, and may be directed at 

civilians or civilian objects. Nonetheless, such operations must not be directed against enemy 

civilians or civilian objects unless the operations are militarily necessary.56 Moreover, such 

operations should comport with the general principles of the law of war.57 For example, even if 

a cyber operation is not an “attack” or does not cause any injury or damage that would need to be 

considered under the principle of proportionality in conducting attacks, that cyber operation still 

should not be conducted in a way that unnecessarily causes inconvenience to civilians or neutral 

persons.

16.5.3 Duty to Take Feasible Precautions and Cyber Operations. Parties to a conflict 

must take feasible precautions to reduce the risk of incidental harm to the civilian population and 

 

law of international armed conflict is a controversial issue. There was agreement among the Group of Experts that 

the term ‘attack’ does not encompass CNAs that result in an inconvenience (such as temporary denial of internet 

access).”).

53 Refer to § 5.12.1.2 (Loss of Life, Injury, and Damage Versus Mere Inconveniences or Temporary Disruptions).

54 Refer to § 16.5.3 (Duty to Take Feasible Precautions and Cyber Operations).

55 Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

56 Refer to § 5.2.2.1 (Non-Violent Measures That Are Militarily Necessary).

57 Refer to § 16.2.2 (Application of Law of War Principles as a General Guide to Cyber Operations).
1023

other protected persons and objects.58 Parties to the conflict that employ cyber operations should 

take precautions to minimize the harm of their cyber activities on civilian infrastructure and 

users.59

The obligation to take feasible precautions may be of greater relevance in cyber 

operations than other law of war rules because this obligation applies to a broader set of activities 

than those to which other law of war rules apply. For example, the obligation to take feasible 

precautions to reduce the risk of incidental harm would apply to a party conducting an attack 

even if the attack would not be prohibited by the principle of proportionality.60 In addition, the

obligation to take feasible precautions applies even if a party is not conducting an attack because 

the obligation also applies to a party that is subject to attack.

61

16.5.3.1 Cyber Tools as Potential Measures to Reduce the Risk of Harm to 

Civilians or Civilian Objects. In some cases, cyber operations that result in non-kinetic or 

reversible effects can offer options that help minimize unnecessary harm to civilians.62 In this 

regard, cyber capabilities may in some circumstances be preferable, as a matter of policy, to

kinetic weapons because their effects may be reversible, and they may hold the potential to 

accomplish military goals without any destructive kinetic effect at all.63

As with other precautions, the decision of which weapon to use will be subject to many 

practical considerations, including effectiveness, cost, and “fragility,” i.e., the possibility that 

once used an adversary may be able to devise defenses that will render a cyber tool ineffective in 

the future.64 Thus, as with special kinetic weapons, such as precision-guided munitions that have 

 58 Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other 

Protected Persons and Objects).

59 United States Submission to the U.N. Group of Governmental Experts on Developments in the Field of 

Information and Telecommunications in the Context of International Security 2012-2013, 4 (“The law of war also 

requires warring States to take all practicable precautions, taking into account military and humanitarian 

considerations, to avoid and minimize incidental death, injury, and damage to civilians and civilian objects. In the 

context of hostilities involving information technologies in armed conflict, parties to the conflict should take 

precautions to minimize the harm of such cyber activities on civilian infrastructure and users.”).

60 Refer to § 5.10.5 (Relationship Between the Requirement to Take Feasible Precautions in Planning and 

Conducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

61 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party 

Subject to Attack).

62 Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

63 United States Submission to the U.N. Group of Governmental Experts on Developments in the Field of 

Information and Telecommunications in the Context of International Security 2012-2013, 4 (“Cyber operations that 

result in non-kinetic or reversible effects can be an important tool in creating options that minimize unnecessary 

harm to civilians. In this regard, cyber capabilities may in some circumstances be preferable, as a matter of policy, 

to kinetic weapons because their effects may be reversible, and they may hold the potential to accomplish military 

goals without any destructive kinetic effect at all.”).

64 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 490 (2002) (“Another possible implication of a defender’s technological prowess may arise when a 

nation has the capacity for graduated self-defense measures. Some may argue that a nation having such capabilities 

must select a response that will do minimal damage. This is a variant of the argument that a nation possessing 
1024

the potential to produce less incidental damage than other kinetic weapons, cyber capabilities 

usually will not be the only type of weapon that is legally permitted.

16.5.4 Prohibition on Improper Use of Signs During Cyber Operations. Under the law of 

war, certain signs may not be used improperly.

65 These prohibitions may also be applicable 

during cyber operations. For example, it would not be permissible to conduct a cyber attack or

to attempt to disable enemy internal communications by making use of communications that 

initiate non-hostile relations, such as prisoner exchanges or ceasefires.66 Similarly, it would be 

prohibited to fabricate messages from an enemy’s Head of State falsely informing that State’s 

forces that an armistice or cease-fire had been signed.67

On the other hand, the restriction on the use of enemy flags, insignia, and uniforms only 

applies to concrete visual objects; it does not restrict the use of enemy codes, passwords, and 

countersigns.68 Thus, for example, it would not be prohibited to disguise network traffic as 

though it came from enemy computers or to use enemy codes during cyber operations.

16.5.5 Use of Civilian Personnel to Support Cyber Operations. As with non-cyber 

operations, the law of war does not prohibit States from using civilian personnel to support their 

cyber operations, including support actions that may constitute taking a direct part in 

hostilities.

69

Under the GPW, persons who are not members of the armed forces, but who are 

authorized to accompany them, are entitled to POW status.70 This category was intended to 

include, inter alia, civilian personnel with special skills in operating military equipment who 

 

precision-guided munitions must always use them whenever there is a potential for collateral damage. That position 

has garnered little support among nations and has been strongly rejected by the United States. There is broad 

recognition that the risk of collateral damage is only one of many military considerations that must be balanced by 

military authorities planning an attack. One obvious consideration is that a military force that goes into a protracted 

conflict with a policy of always using precision-guided munitions whenever there is any potential for collateral 

damage will soon exhaust its supply of such munitions. Similarly, military authorities must be able to weigh all 

relevant military considerations in choosing a response in self-defense against computer network attacks. These 

considerations will include the probable effectiveness of the means at their disposal, the ability to assess their 

effects, and the “fragility” of electronic means of attack (i.e., once they are used, an adversary may be able to devise 

defenses that will render them ineffective in the future).”).

65 Refer to § 5.24 (Improper Use of Certain Signs).

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

67 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 459, 473 (2002) (“Perfidy: It may seem attractive for a combatant vessel or aircraft to avoid being attacked 

by broadcasting the agreed identification signals for a medical vessel or aircraft, but such actions would be a war 

crime. Similarly, it might be possible to use computer ‘morphing’ techniques to create an image of the enemy’s 

chief of state informing his troops that an armistice or cease-fire agreement had been signed. If false, this would 

also be a war crime.”).

68 Refer to § 5.23.1.5 (Use of Enemy Codes, Passwords, and Countersigns Not Restricted).

69 Refer to § 4.15.2.2 (Employment in Hostilities).

70 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).
1025

support and participate in military operations, such as civilian members of military aircrews.

71 It 

would include civilian cyber specialists who have been authorized to accompany the armed 

forces.

Civilians who take a direct part in hostilities forfeit protection from being made the object 

of attack.

72

16.6 LEGAL REVIEW OF WEAPONS THAT EMPLOY CYBER CAPABILITIES

DoD policy requires the legal review of the acquisition of weapons or weapon systems.

73 

This policy would include the review of weapons that employ cyber capabilities to ensure that 

they are not per se prohibited by the law of war.

74 Not all cyber capabilities, however, constitute 

a weapon or weapons system. Military Department regulations address what cyber capabilities 

require legal review.75

The law of war does not prohibit the development of novel cyber weapons. The 

customary law of war prohibitions on specific types of weapons result from State practice and 

opinio juris demonstrating that a type of weapon is illegal; the mere fact that a weapon is novel 

or employs new technology does not mean that the weapon is illegal.76

Although which issues may warrant legal analysis would depend on the characteristics of 

the weapon being assessed, a legal review of the acquisition or procurement of a weapon that 

employs cyber capabilities likely would assess whether the weapon is inherently 

indiscriminate.77 For example, a destructive computer virus that was programmed to spread and 

destroy uncontrollably within civilian internet systems would be prohibited as an inherently

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

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

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

74 Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as 

Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 

HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 6 (Dec. 2012) (“States should undertake a legal review of 

weapons, including those that employ a cyber capability. Such a review should entail an analysis, for example, of 

whether a particular capability would be inherently indiscriminate, i.e., that it could not be used consistent with the 

principles of distinction and proportionality. The U.S. Government undertakes at least two stages of legal review of 

the use of weapons in the context of armed conflict: first, an evaluation of new weapons to determine whether their 

use would be per se prohibited by the law of war; and second, specific operations employing weapons are always 

reviewed to ensure that each particular operation is also compliant with the law of war.”).

75 See, e.g., DEPARTMENT OF THE ARMY REGULATION 27-53, Review of Legality of Weapons Under International 

Law (Jan. 1, 1979); SECRETARY OF THE NAVY INSTRUCTION 5000.2E, Department of the Navy Implementation and 

Operation of the Defense Acquisition System and the Joint Capabilities Integration and Development System (Sept. 

1, 2011); DEPARTMENT OF THE AIR FORCE INSTRUCTION 51-402, Legal Reviews of Weapons and Cyber Capabilities 

(Jul. 27, 2011).

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

77 Refer to § 6.7 (Inherently Indiscriminate Weapons).
1026

indiscriminate weapon.78

 78 United States Submission to the U.N. Group of Governmental Experts on Developments in the Field of 

Information and Telecommunications in the Context of International Security 2012-2013, 3 (“Weapons that cannot 

be directed at a specific military objective or whose effects cannot be controlled would be inherently indiscriminate, 

and per se unlawful under the law of armed conflict. In the traditional kinetic context, such inherently 

indiscriminate and unlawful weapons include, for example, biological weapons. Certain cyber tools could, in light

of the interconnected nature of the network, be inherently indiscriminate in the sense that their effects cannot be 

predicted or controlled; a destructive virus that could spread uncontrollably within civilian internet systems might 

fall into this category. Attacks using such tools would be prohibited by the law of war.”).
1027

XVII – Non-International Armed Conflict (NIAC)

Chapter Contents

17.1 Introduction

17.2 Application of International Law to NIACs

17.3 Special Agreements Between Parties to the Conflict

17.4 A State’s Use of Its Domestic Law and NIAC

17.5 Principle of Distinction in NIAC

17.6 Respect and Humane Treatment of Persons Taking No Active Part in 

Hostilities in NIAC

17.7 Rules on Conducting Attacks in NIAC

17.8 Impartial Humanitarian Organizations and Humanitarian Activities During 

NIAC

17.9 Protection of the Civilian Population in NIAC

17.10 Protection of Children in NIAC

17.11 Protection of Cultural Property in NIAC

17.12 Use of Captured or Surrendered Enemy Personnel in NIAC

17.13 Weapons in NIAC

17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC

17.15 Protection of Medical and Religious Personnel and Medical Transports in 

NIAC

17.16 Display of the Distinctive Emblem in NIAC

17.17 Detention in NIAC

17.18 Non-Intervention and Neutral Duties in NIAC

17.1 INTRODUCTION

This Chapter addresses the law of war rules applicable to armed conflict not of an 

international character, or non-international armed conflict (NIAC). Non-international armed 

conflicts are those armed conflicts that are not between States.

1

 In particular, this Chapter 

addresses the rules applicable to State armed forces conducting military operations against nonState armed groups.

The application of the law of war to non-international armed conflict may be complex.2 

In U.S. practice, in certain cases, the rules applicable in international armed conflict have been

applied as a matter of policy to military operations in non-international armed conflict.

17.1.1 Non-International Armed Conflict – Notes on Terminology. Non-international 

armed conflict is commonly referred to by the acronym “NIAC.” Although there has been a 

range of views on what constitutes a non-international armed conflict, the intensity of the 

conflict and the organization of the parties are criteria that have been assessed to distinguish 

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

2 Refer to § 17.2 (Application of International Law to NIACs).
1028

between non-international armed conflict and internal disturbances and tensions, such as riots, 

isolated and sporadic acts of violence, and other acts of a similar nature.

3

A variety of terms have been used to describe factual situations that often may be 

characterized as non-international armed conflict.

17.1.1.1 NIAC and Civil War. Civil war is a classic example of a noninternational armed conflict. For example, a non-international armed conflict could involve the 

open rebellion of segments of a nation’s armed forces (sometimes called dissident armed forces) 

against the incumbent regime, each claiming to be the legitimate government.

4

In some cases of civil war, the insurgent party has been recognized as a belligerent, and, 

at least in some respects, the law of international armed conflict would be applied by the States 

choosing to recognize the insurgent party as a belligerent.

5

17.1.1.2 NIAC and Internal Armed Conflict. In some cases, the term internal 

armed conflict is used as a synonym for non-international armed conflict. Such usage may 

reflect a traditional definition of non-international armed conflict as only those armed conflicts 

occurring within the borders of a single State.6 Non-international armed conflicts, however, are 

classified as such simply based on the status of the parties to the conflict, and sometimes occur in 

more than one State.

7

 The mere fact that an armed conflict occurs in more than one State and 

thus may be characterized as international “in scope” does not render it “international in 

character.”8

17.1.1.3 Transnational or Internationalized NIACs. Sometimes the terms of 

“transnational” or “internationalized” are used to describe certain non-international armed 

conflicts.

“Transnational” has been used to indicate that the non-international armed conflict takes 

place in more than one State. 

 3 Refer to § 3.4.2.2 (Distinguishing Armed Conflict From Internal Disturbances and Tensions).

4 See, e.g., LIEBER CODE art. 150 (“Civil war is war between two or more portions of a country or state, each 

contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also 

sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those 

containing the seat of government.”).

5 Refer to § 3.3.3 (State Recognition of Armed Groups as Belligerents).

6 See, e.g., GC COMMENTARY 36 (“Speaking generally, it must be recognized that the conflicts referred to in Article 

3 [of the GC] are armed conflicts, with armed forces on either side engaged in hostilities—conflicts, in short, which 

are in many respects similar to an international war, but take place within the confines of a single country.”).

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

8 Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“The Court of Appeals thought, and the Government asserts, that 

Common Article 3 [of the 1949 Geneva Conventions] does not apply to Hamdan because the conflict with al Qaeda, 

being ‘‘international in scope,’’ does not qualify as a ‘‘conflict not of an international character.’’ 415 F. 3d, at 41. 

That reasoning is erroneous. The term ‘conflict not of an international character’ is used here in contradistinction to 

a conflict between nations.”).
1029

“Internationalized” has been used to indicate that multiple States may be involved in a 

non-international armed conflict.

17.1.1.4 NIAC and Guerilla or Unconventional Warfare. Guerrilla warfare may 

be understood to be military and paramilitary operations conducted in enemy-held or hostile 

territory by irregular, predominantly indigenous forces.9 Guerrilla operations or unconventional 

warfare are common during non-international armed conflict. Such operations, however, are a 

method of warfare that has been employed in international armed conflicts and occupation as 

well. 

17.1.1.5 NIAC and Rebellion or Insurrection. Rebellion, insurrection, or 

insurgency may also be types of non-international armed conflict.10 Counter-insurgency 

operations generally occur in the context of non-international armed conflict, but could occur in 

the context of an international armed conflict and occupation as well.

17.1.1.6 NIAC and Terrorism. Issues surrounding terrorism and the activities of 

terrorist groups can arise in the contexts of non-international armed conflict, international armed 

conflict, and, of course, can arise outside the context of armed conflict altogether. Acts of 

terrorism are prohibited during international armed conflict and during non-international armed 

conflict.

11

17.1.1.7 NIAC and Small Wars or Low-Intensity Conflict. Non-international 

armed conflict has sometimes been discussed using the term “low-intensity” conflict.

12 The term 

 9 JOINT PUBLICATION 3-05.1, Joint Special Operations Task Force Operations, GL-11 (Apr. 26, 2007) (“guerrilla 

warfare. Military and paramilitary operations conducted in enemy-held or hostile territory by irregular, 

predominantly indigenous forces. Also called GW. (JP 3-05.1)”). See also FRANCIS LIEBER, GUERRILLA PARTIES 

CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 7-8 (1862) (“[B]ut it may be stated here that 

whatever may be our final definition, it is universally understood in this country at the present time that a guerrilla 

party means an irregular band of armed men, carrying on an irregular war, not being able, according to their 

character as a guerrilla party, to carry on what the law terms a regular war. The irregularity of the guerrilla party 

consists in its origin, for it is either self-constituted or constituted by the call of a single individual, not according to 

the general law of levy, conscription, or volunteering; it consists in its disconnection with the army, as to its pay, 

provision, and movements, and it is irregular as to the permanency of the band, which may be dismissed and called 

again together at any time.”).

10 See, e.g., LIEBER CODE art. 151 (“The term rebellion is applied to an insurrection of large extent, and is usually a 

war between the legitimate government of a country and portions of provinces of the same who seek to throw off 

their allegiance to it and set up a government of their own.”).

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

Acts of Terrorism).

12 John M. Collins, U.S. Low Intensity Conflicts, 1899-1990, 4 (Congressional Research Service, Sept. 10, 1990) 

(“This survey locates LIC [Low-Intensity Conflict] on the conflict spectrum just above normal peacetime 

competition and just below any kind of armed combat that depletes U.S. forces slightly, if at all (Figures 1 and 2 

graphically contrast LIC with mid- and high-intensity conflicts). Limitations on violence, rather than force levels 

and arsenals, determine the indistinct upper boundary of LIC. Large military formations conceivably could conduct 

low-intensity operations for limited objectives using the most lethal weapons (perhaps for signalling), provided few 

U.S. casualties and little U.S. damage ensued. The lower boundary, where nonviolent LICs abut normal peacetime 

competition, is equally inexact. Political, economic, technological, and psychological warfare, waged for deterrent, 

offensive, or defensive purposes, occupy prominent places. So do nonviolent military operations, typified by shows 

of force and peacekeeping. Insurgencies, counterinsurgencies, coups d’etat, transnational terrorism, 
1030

“small wars” has also been used in military doctrine to describe situations that may be 

characterized as non-international armed conflicts.13 “Low-intensity conflict” and “small wars”

are not synonymous with non-international armed conflict, but there is a high degree of overlap 

between those categories and non-international armed conflict.

17.1.2 Important Commonalities Between the Law Applicable to International Armed 

Conflict and the Law Applicable to Non-International Armed Conflict. 

17.1.2.1 Common Baseline Rules. Certain baseline rules, in particular relating to 

the humane treatment of detainees, must be observed regardless of the character of the armed 

conflict.14 The fact that certain baseline rules are common to international armed conflict and 

non-international armed conflict means that it may be unnecessary to determine the character of 

the armed conflict in order to assess whether the law has been violated.

17.1.2.2 Foundational Principles of the Law of War. The foundational principles 

of the law of war are common to both international armed conflict and non-international armed 

conflict.15 Thus, reference to first principles in the law of war may be most useful in assessing

the rules applicable during non-international armed conflict.16

17.1.2.3 Rules for Conducting Operations Against Unprivileged Belligerents. 

Rules for conducting operations against unprivileged belligerents are found in both the law 

applicable to international armed conflict and the law applicable to non-international armed 

 

anti/counterterrorism, minor conventional wars, and narco conflict lie between those poles. Variations within each 

category, overlaps, and interlocks are virtually endless.”).

13 MARINE CORPS, Small Wars Manual, ¶1-1-¶1-2 (1940), reprinted as FLEET MARINE FORCE REFERENCE 

PUBLICATION 12-15 (1990) (“The ordinary expedition of the Marine Corps which does not involve a major effort in 

regular warfare against a first-rate power may be termed a small war. It is this type of routine active foreign duty of 

the Marine Corps in which this manual is primarily interested. Small wars represent the normal and frequent 

operations of the Marine Corps. During about 85 of the last 100 years, the Marine Corps has been engaged in small 

wars in different parts of the world. The Marine Corps has landed troops 180 times in 37 countries from 1800 to 

1934. Every year during the past 36 years since the Spanish-American War, the Marine Corps has been engaged in 

active operations in the field. ... Most of the small wars of the United States have resulted from the obligation of the 

Government under the spirit of the Monroe Doctrine and have been undertaken to suppress lawlessness or 

insurrection. Punitive expeditions may be resorted to in some instances, but campaigns of conquest are contrary to 

the policy of the Government of the United States.”).

14 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 

1986 I.C.J. 14, 114 (¶219) (“Because the minimum rules applicable to international and to non-international 

conflicts are identical, there is no need to address the question whether those actions must be looked at in the context 

of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked 

for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in 

each Convention, expressly refers to conflicts not having an international character.”).

15 See Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for 

Interlocutory Appeal on Jurisdiction, ¶119 (Oct. 2, 1995) (“Indeed, elementary considerations of humanity and 

common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between 

themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is 

inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil 

strife.”). Refer to § 2.1 (Introduction).

16 Refer to § 17.2.2.1 (Use of Law of War Principles to Discern Rules Applicable to NIAC).
1031

conflict.17 The rules for States conducting military operations against unprivileged belligerents 

in international armed conflict are not significantly different from the rules for States conducting 

military operations against non-State armed groups during non-international armed conflict.

17.1.3 Important Differences Between the Law Applicable to International Armed 

Conflict and the Law Applicable to Non-International Armed Conflict. 

17.1.3.1 Nationality and Territoriality Exclusions in the Law of International 

Armed Conflict. Certain rules applicable to international armed conflict reflect concepts (e.g., 

nationality and territory) that preclude the application of those rules to internal armed conflicts. 

For example, nationals who are in the power of their State of nationality would not be provided 

POW status under the GPW or protected person status under the GC.18 Thus, even if the GPW 

and GC could otherwise be deemed applicable to a civil war, these exclusions based on 

nationality would limit the application of many of the provisions of the GPW and GC (as a 

matter of treaty law) to internal armed conflicts. In any case, it remains true that fundamental 

principles guaranteeing humane treatment (e.g., Common Article 3 of the 1949 Geneva 

Conventions) would apply in any such circumstances.

Similarly, it is the essence of belligerent occupation that it should be exercised over 

foreign, enemy territory;19 thus, occupation law rules would not apply to internal armed 

conflict.20

Certain non-international armed conflicts, however, are not internal armed conflicts.21

17.1.3.2 Prevalence of Customary Law Applicable to NIAC as Opposed to Treaty 

Law. There are fewer treaty provisions that address non-international armed conflict than that 

address international armed conflict.22 Put another way, practitioners are generally more likely 

to encounter situations regulated by customary law in non-international armed conflict than in 

international armed conflict. Certain guidelines may be helpful in assessing customary 

 17 Refer to § 4.3 (Lawful Combatants and Unprivileged Belligerents).

18 Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces); § 10.3.3.1 (A State’s Own Nationals).

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

20 See Richard A. Baxter, Ius in Bello Interno: The Present and Future Law, in JOHN NORTON MOORE, LAW AND 

CIVIL WAR IN THE MODERN WORLD 518, 531 (1974) (“Other provisions of the [Fourth Geneva] Convention apply to 

‘territory of a party to the conflict’ and to ‘occupied territory.’ In internal conflict, the lawful government and the 

insurgents will both maintain that there is only ‘territory of a party to the conflict.’ Territory cannot be belligerently 

occupied by the lawful government or the rebels. There is no starting point which divides territory into friendly and 

enemy areas, so that, when the latter type of area is occupied, it will be belligerently occupied. It surely cannot be 

maintained that the insurgents should be required to treat all territory over which they exercise control as being 

belligerently occupied or that the lawful government should be forced to treat territory liberated from the control of 

rebels as belligerently occupied. It is of the essence of belligerent occupation that it should be exercised over 

foreign, enemy territory. Such requirements as that of Article 43 of the Hague Regulations that the occupant must 

respect, ‘unless absolutely prevented, the laws in force in the country’ are simply unworkable in domestic 

conflict.”).

21 Refer to § 17.1.1.2 (NIAC and Internal Armed Conflict); § 17.1.1.3 (Transnational or Internationalized NIACs).

22 Refer to § 17.2.1 (Treaties That Apply to NIAC).
1032

international law applicable to non-international armed conflict.

23

17.1.3.3 Important Substantive Differences Between the Law Applicable to 

International Armed Conflict and the Law Applicable to Non-International Armed Conflict. 

There are important substantive differences between the law applicable to international armed 

conflict and the law applicable to non-international armed conflict, including the following three 

examples.

First, the different circumstances that typically arise in non-international armed conflicts 

as compared to international armed conflicts may need to be considered in applying the principle 

of distinction.24

Second, States have greater latitude to compel enemy persons to switch allegiance or to 

serve the State in hostilities during non-international armed conflict than States have to compel 

enemy nationals during international armed conflict.

25

Third, States have greater latitude to use their domestic law against enemy armed groups

in non-international armed conflict than States have to use their domestic law against enemy 

forces or enemy nationals in international armed conflict.

26

17.2 APPLICATION OF INTERNATIONAL LAW TO NIACS

In some cases, there may be important substantive differences between the rules 

applicable in international armed conflict and the rules applicable in non-international armed 

conflict.27 In some cases, only the general essence of a rule that applies during international 

armed conflict applies during non-international armed conflict, as opposed to the detailed 

provisions in some treaties relating to many aspects of international armed conflict.28

The extent to which the law of war rules that apply during international armed conflict 

must or should apply during non-international armed conflict has not been clearly defined as the 

law of war has developed.

29 The discretion afforded States in applying law of war rules to non-

 23 Refer to § 17.2.2 (Assessing Customary International Law Applicable to NIAC).

24 Refer to § 17.5 (Principle of Distinction in NIAC).

25 Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).

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

27 Refer to § 17.1.3.3 (Important Substantive Differences Between the Law Applicable to International Armed 

Conflict and the Law Applicable to Non-International Armed Conflict).

28 See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for 

Interlocutory Appeal on Jurisdiction, ¶¶126-127 (Oct. 2, 1995) (“The emergence of the aforementioned general 

rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its 

aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international 

armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken 

place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of 

those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.”).

29 See, e.g., FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF 

WAR 21 (1862) (“The application of the laws and usages of war to wars of insurrection or rebellion is always 
1033

international armed conflicts results, in part, because treaty provisions applicable to international 

armed conflict have been presumed not to apply to non-international armed conflict unless 

explicitly made applicable. For example, in the 1949 Geneva Conventions, only Common 

Article 3 applies to non-international armed conflict.30 The discretion afforded States in this 

regard may also be understood to result from the wide range of circumstances that constitute 

non-international armed conflict. The United States has objected to efforts to make the 

applicability of the rules of international armed conflict turn on subjective and politicized criteria

that would eliminate the distinction between international and non-international conflicts.

31

In the sections that follow, which reflect the practice of the U.S. armed forces in applying 

the law of war to non-international armed conflict, the rules articulated may exceed the 

requirements of applicable customary international law and treaty law.

17.2.1 Treaties That Apply to NIAC. Relatively few treaties have provisions that 

expressly apply to non-international armed conflicts. Some treaties, however, may apply 

implicitly to non-international armed conflict.

17.2.1.1 Treaties That Have Provisions That Explicitly Apply to NIAC. Certain 

treaties to which the United States is a Party have provisions that explicitly apply to noninternational armed conflict. These treaties include:

• the 1949 Geneva Conventions (i.e., Common Article 3);

32

• the 1954 Hague Cultural Property Convention;

33

• the CCW Amended Mines Protocol;

34

 

undefined, and depends on relaxations of municipal law, suggested by humanity or necessitated by the numbers 

engaged in the insurrection. The law of war, as acknowledged between independent belligerents, is, at times, not 

allowed to interfere with the municipal law of rebellion, or is allowed to do so only very partially, as was the case in 

Great Britain during the Stuart rebellion, in the middle of last century; at other times, again, measures are adopted in 

rebellions, by the victorious party or the legitimate government, more lenient even than the international law of 

war.”).

30 GC COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention in 

miniature’. It applies to non-international conflicts only, and will be the only Article applicable to them until such 

time as a special agreement between the Parties has brought into force between them all or part of the other 

provisions of the Convention.”).

31 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).

32 GPW art. 3 (“In the case of armed conflict not of an international character occurring in the territory of one of the 

High Contracting Parties ... .”); GWS (same); GWS Sea (same); GC (same).

33 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of an 

international character occurring within the territory of one of the High Contracting Parties, each party to the 

conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for 

cultural property.”).

34 CCW AMENDED MINES PROTOCOL art. 1 (“2. This Protocol shall apply, in addition to situations referred to in 

Article I of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August 

1949. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and 

sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 3. In case of armed 
1034

• the Amended CCW, including Protocols I, III, and IV;

35

• the CCW Protocol V on Explosive Remnants of War;

36 and

• AP III.37

Treaties to which the United States is not a Party that have provisions applicable to 

“armed conflict not of an international character” include: 

• AP II;38 and 

• the Rome Statute of the International Criminal Court.39

17.2.1.2 Implicit Application of Treaty Provisions to Situations in NIAC. Some 

treaties may apply implicitly to certain situations in non-international armed conflict. For 

example, the Genocide Convention does not expressly refer to non-international armed conflict,

but recognizes that acts of genocide are criminal “whether committed in time of peace or time of 

war” and whether they are committed by “constitutionally responsible rulers, public officials or 

private individuals.”40 Similarly, the Convention Against Torture recognizes that “No 

 conflicts not of an international character occurring in the territory of one of the High Contracting Parties, each party 

to the conflict shall be bound to apply the prohibitions and restrictions of this Protocol.”).

35 CCW AMENDED art. 1 (“2. This Convention and its annexed Protocols shall also apply, in addition to situations 

referred to in paragraph 1 of this Article, to situations referred to in Article 3 common to the Geneva Conventions of 

12 August 1949. This Convention and its annexed Protocols shall not apply to situations of internal disturbances 

and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being 

armed conflicts. 3. In case of armed conflicts not of an international character occurring in the territory of one of the 

High Contracting Parties, each party to the conflict shall be bound to apply the prohibitions and restrictions of this 

Convention and its annexed Protocols.”).

36 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (“This Protocol shall apply to situations resulting 

from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.”).

37 AP III art. 1 (“2. This Protocol reaffirms and supplements the provisions of the four Geneva Conventions of 12 

August 1949 (‘the Geneva Conventions’) and, where applicable, of their two Additional Protocols of 8 June 1977 

(‘the 1977 Additional Protocols’) relating to the distinctive emblems, namely the red cross, the red crescent and the 

red lion and sun, and shall apply in the same situations as those referred to in these provisions.”).

38 AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 

12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which 

are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating 

to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a 

High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, 

under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained 

and concerted military operations and to implement this Protocol.”).

39 ROME STATUTE art. 8(2)(c) (“In the case of an armed conflict not of an international character, serious violations 

of article 3 common to the four Geneva Conventions ..., namely, any of the following acts committed against 

persons taking no active part in the hostilities”); ROME STATUTE art. 8(2)(f) (“Paragraph 2(e) applies to armed 

conflicts not of an international character ... .”).

40 Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 UNTS 277, 280 

(“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime 

under international law which they undertake to prevent and to punish.”); id. at art. 4 (“Persons committing genocide 
1035

exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political 

instability or any other public emergency, may be invoked as a justification of torture”; thus, the 

state of non-international armed conflict could not be justification for torture.41

The prohibitions in Article 1 of the Chemical Weapons Convention have been interpreted 

to apply to non-international armed conflict.42

In addition, the prohibitions and restrictions on acquisition and development of biological 

weapons in the Biological Weapons Convention effectively prevent the use of biological 

weapons by States in non-international armed conflict.43

Further, the obligations in the Child Soldiers Protocol relate implicitly to noninternational armed conflict.44

17.2.1.3 Human Rights Treaties and NIAC. During an internal non-international 

armed conflict, a State would continue to be bound by applicable human rights treaty 

obligations.

45

The applicability of human rights treaty obligations during non-international armed 

conflict may depend on a variety of factors. Such applicability depends on the terms of the 

particular treaty in question, and whether the State has exercised an authorized derogation from 

its provisions due to an emergency situation. The applicability of a human rights treaty 

obligation with respect to an individual, such as an obligation under the International Covenant 

on Civil and Political Rights, for example, may depend on whether the person is located outside 

the territory of the State Party.

46 In addition, law of war rules constitute the lex specialis during 

situations of armed conflict, and as such, serve as the controlling body of law with regard to the 

conduct of hostilities and the protection of war victims.

47

17.2.2 Assessing Customary International Law Applicable to NIAC. As a consequence 

of the fewer treaty provisions applicable to non-international armed conflict, many of the rules 

applicable to non-international armed conflict are found in customary international law. The 

following guidelines may be helpful in assessing the customary international law applicable to 

non-international armed conflict.

17.2.2.1 Use of Law of War Principles to Discern Rules Applicable to NIAC. The 

 

or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible 

rulers, public officials or private individuals.”).

41 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10, 

1984, 1465 UNTS 85, 114. Refer to § 1.6.3.4 (Convention Against Torture).

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

43 Refer to § 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).

44 Refer to § 4.20.5.2 (Child Soldiers Protocol).

45 Refer to § 1.6.3 (Human Rights Treaties).

46 Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).

47 Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).
1036

fundamental principles of the law of war also provide the foundation for the rules applicable 

during non-international armed conflict.48 As during international armed conflict, the principles 

of the law of war form the general guide for conduct during non-international armed conflict, 

when no specific rule applies.49

However, the application of law of war principles may differ insofar as the circumstances 

in international armed conflicts may often be quite different from the circumstances in noninternational armed conflicts.50

17.2.2.2 Considered Absence of a Restriction in NIAC. Under general principles 

of legal interpretation, when a rule mentions specific circumstances or conditions in which it 

applies, it may give rise to a presumption that the rule was not intended to apply in other related 

circumstances or conditions that are not specifically mentioned.

51

Thus, if a treaty addresses both international armed conflict and non-international armed 

conflict, and provides for a restriction in international armed conflict but does not provide for 

that restriction in non-international armed conflict, then this omission may, to some extent, 

reflect States’ views that such restrictions were not applicable in non-international armed 

conflict.

52 Similarly, States negotiated and adopted AP I and AP II at the same diplomatic 

 48 Refer to § 17.1.2.2 (Foundational Principles of the Law of War).

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

50 Refer to § 17.5 (Principle of Distinction in NIAC).

51 See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (“But whatever view might be taken of the question of 

delivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia having 

contained a convention upon this subject, that convention must alone be looked to in determining the rights of the 

Russian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the terms 

upon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles of 

comity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to the 

construction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is a 

negation of all other analogous powers with respect to the same subject-matter. As observed by Lord Denham in 

Aspdin v. Austin, ‘where parties have entered into written engagements with express stipulations, it is manifestly not 

desirable to extend them by any implications; the presumption is that, having expressed some, they have expressed 

all the conditions by which they intend to be bound under that instrument.’ The rule is curtly stated in the familiar 

legal maxim, Expressio unius est exclusio alterius.”) (internal citations omitted); The S.S. Wimbledon, (United 

Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, at 23-24 (“Although the Kiel 

Canal, having been constructed by Germany in German territory, was, until 1919, an internal waterway of the state 

holding both banks, the Treaty has taken care not to assimilate it to the other internal navigable waterways of the 

German Empire. A special section has been created at the end of Part XII, dealing with ports, waterways and 

railways, and in this special section rules exclusively designed for the Kiel Canal have been inserted; these rules 

differ on more than one point from those to which other internal navigable waterways of the Empire are subjected by 

Articles 321 to 327. ... The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore selfcontained; if they had to be supplemented and interpreted by the aid of those referring to the inland navigable 

waterways of Germany in the previous Sections of Part XII, they would lose their ‘raison d’être’, such repetitions as 

are found in them would be superfluous and there would be every justification for surprise at the fact that, in certain 

cases, when the provisions of Articles 321 to 327 might be applicable to the canal, the authors of the Treaty should 

have taken the trouble to repeat their terms or re-produce their substance.”).

52 See, e.g., II OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON 

THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 157-58 (A/CONF.183/C.1/SR.4, ¶¶33-34) (2002) 

(“33. Mr. van der Wind (Netherlands), acting as Coordinator of part 2 of the draft Statute, said that the definition 
1037

conference, and the omission from AP II of restrictions present in AP I may, to some extent,

reflect States’ views that such restrictions were not applicable in non-international armed 

conflict.53

17.2.2.3 Application of IAC Rules by Analogy. If an action is not prohibited by 

the law of war applicable to international armed conflict, it generally would not be prohibited by 

the law of war applicable to non-international armed conflict.

For example, analogous provisions of the GPW and GC may be helpful for understanding 

the baseline standards in international law for detention because the baseline standards applicable 

to all detainees during armed conflict (e.g., Common Article 3 of the 1949 Geneva Conventions) 

are not more favorable than the treatment and protections applicable to POWs and civilian 

internees under the GPW and GC, respectively.

54 Thus, in some instances it may be appropriate 

to implement measures during detention of persons during non-international armed conflict by 

analogy to the internment of POWs during international armed conflict or by analogy to the 

 of war crimes was divided into four sections, of which sections A and B concerned norms applicable in international 

armed conflict and sections C and D those applicable in internal armed conflict. ... 41. Under section D, 

subparagraph (f), the options were very similar to those proposed in section B, subparagraph (t), the differences in 

wording stemming from the fact that the norms applicable to international armed conflict and the sources used were 

somewhat different, as could be seen, for example, in options 2 and 3 which referred to armed forces or groups, and 

in the reference to allowing children to take part.”).

53 See, e.g., XIV OFFICIAL RECORDS OF THE CDDH 67 (CDDH/III/SR.8, ¶¶67-72) (“Mr. ALDRICH (United States 

of America) said that article 46 was important for giving general guidance to military commanders in the conduct of 

their operations. ... His delegation supported the amendments to article 26 of draft Protocol II in document 

CDDH/III/36. It was inappropriate to include the same detailed provisions in a protocol on non-international armed 

conflicts as in one on international armed conflicts.”); XIV OFFICIAL RECORDS OF THE CDDH 179 

(CDDH/III/SR.20, ¶53) (Mrs. DARIIMAA (Mongolia) said that the Working Group should consider the differences 

between article 28 of draft Protocol II and the corresponding article of draft Protocol I, since the practices and rules 

current in international and internal law were not the same. Unless that was taken into account, the Protocol would 

be inapplicable and might open the way to various forms of interference in the internal affairs of State.”); XIV 

OFFICIAL RECORDS OF THE CDDH 73 (CDDH/III/SR.9, ¶14) (“Mr. BLISHCHENKO (Union of Soviet Socialist 

Republics) said that he wished to reply to certain delegations which had expressed the desire to see the same 

revisions in article 26 of draft Protocol II and in article 46 of draft Protocol I. He pointed out that there were 

differences between international and internal conflicts. With regard to the latter, it was essential to make rules that 

everyone could accept.”); XV OFFICIAL RECORDS OF THE CDDH 460 (Committee III Report, CDDH/407/Rev.1, 

¶40) (“The Committee was also aided in its task by the somewhat similar word done at the third session of the 

Conference by Committee I with respect to draft Protocol II. As a matter of drafting, the Committee adopted the 

texts of those parts of Articles 6 and 10 of draft Protocol II which it decided to include in Article 65. The rule 

applied was that the same text would be used unless there was reason for changing it inherent in the differences 

between international and non-international armed conflicts.”); XI OFFICIAL RECORDS OF THE CDDH 248 

(CDDH/II/SR.25, ¶¶16-18) (“Mr. IJAS (Indonesia) said that his delegation understood the concern of those who 

objected to draft Protocol II on the grounds that some of its provisions interfered in the internal affairs of States and 

were contrary to the principle of national sovereignty. ... The provisions of Part III of draft Protocol II should not 

reproduce automatically those of the corresponding part of draft Protocol I, since they are concerned with different 

type of armed conflict. For example, article 16, paragraph 3 could give rise to serious problems if it was left as it 

stood.”); XIV OFFICIAL RECORDS OF THE CDDH 312 (CDDH/III/SR.32, ¶15) (“Mr. WOLFE (Canada), referring to 

his delegation’s amendment (CDDH/III/221), said that he thought it was dangerous to try to introduce in draft 

Protocol II a notion of perfidy which was only valid in international conflicts and very difficult to apply in internal 

conflicts.”).

54 Refer to § 8.1.4.4 (Analogous GPW and GC Provisions).
1038

internment of protected persons in occupied territory.55 

17.2.2.4 Application of Law Enforcement Rules. The law applicable to noninternational armed conflict generally has been crafted to reflect baseline rules that States respect 

even in addressing common criminals.56 Thus, if an action would be permissible under the 

domestic law enforcement rules of many States, it likely would be permissible as a matter of 

customary international law during non-international armed conflict. 

17.2.3 Application of Humanitarian Rules and the Legal Status of the Parties to the 

Conflict. The application of humanitarian rules to enemy non-State armed groups does not affect 

the legal status of such groups.57 For example, a State’s decision to apply humanitarian rules in 

military operations against a non-State armed group would not constitute an implicit recognition 

of a government that such an armed group has purported to establish nor an implicit recognition 

of the legitimacy of the armed group’s cause. Such application also would not implicitly provide 

the members of the armed group with any legal immunity from prosecution. 

The principle that the application of humanitarian rules to an armed group does not affect 

the legal status of that armed group has been recognized in a number of treaties. For example, by 

its express terms, the application of Common Article 3 of the 1949 Geneva Conventions shall not 

affect the legal status of the parties to the conflict.58 Also by express treaty terms, the 

application of the provisions of the CCW and its annexed Protocols to parties to a conflict that 

are not High Contracting Parties that have accepted the CCW or its annexed Protocols shall not 

change their legal status or the legal status of a disputed territory, either explicitly or implicitly.59 

Further, by the express terms of the 1954 Hague Cultural Property Convention, its provisions 

that relate to non-international armed conflict shall not affect the legal status of the parties to the 

 55 Refer to § 17.17.1.1 (Non-Punitive Detention in Non-International Armed Conflict).

56 See, e.g., GWS COMMENTARY 50 (“What Government would dare to claim before the world, in a case of civil 

disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was 

entitled to leave the wounded uncared for, to inflict torture and mutilations and to take hostages? However useful, 

therefore, the various conditions stated above may be, they are not indispensable, since no Government can object to 

respecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few 

essential rules which it in fact respects daily, under its own laws, even when dealing with common criminals.”).

57 See LIEBER CODE art. 152 (“When humanity induces the adoption of the rules of regular war toward rebels, 

whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgement of 

their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no 

right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own 

acknowledgment of the revolted people as an independent power.”).

58 GWS art. 3 (“The application of the preceding provisions [in Article 3] shall not affect the legal status of the 

Parties to the conflict.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).

59 CCW AMENDED art. 1(6) (“The application of the provisions of this Convention and its annexed Protocols to 

parties to a conflict which are not High Contracting Parties that have accepted this Convention or its annexed 

Protocols, shall not change their legal status or the legal status of a disputed territory, either explicitly or 

implicitly.”); CCW AMENDED MINES PROTOCOL art. 1(6) (“The application of the provisions of this Protocol to 

parties to a conflict, which are not High Contracting Parties that have accepted this Protocol, shall not change their 

legal status or the legal status of a disputed territory, either explicitly or implicitly.”); CCW AMENDED MINES 

PROTOCOL art. 12(1)(b) (“The application of the provisions of this Article to parties to a conflict which are not High 

Contracting Parties shall not change their legal status or the legal status of a disputed territory, either explicitly or 

implicitly.”).
1039

conflict.60

17.2.4 Binding Force of the Law of War on Insurgents and Other Non-State Armed 

Groups. The law of war applicable in a non-international armed conflict is binding upon all 

parties to the armed conflict, including State armed forces and non-State armed groups. A 

variety of explanations have been offered for this principle. 

Customary law of war rules are binding on a State, even if it is not a Party to a treaty 

containing the rule.

61 Similarly, customary law of war rules are binding on those parties to the 

armed conflict that intend to make war and to claim the rights of a belligerent, even if they are 

not States.

62

Treaty provisions that address non-international armed conflict provide that they apply 

not only to the State, but to each party to the conflict.63 In many cases, these treaty provisions

would also be binding on non-State armed groups as a matter of customary international law.64

As a practical matter, non-State armed groups would often be bound by their State’s 

treaty obligations due to the very fact that the leaders of those non-State armed groups would 

 60 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(4) (“The application of the preceding provisions shall not 

affect the legal status of the parties to the conflict.”).

61 Refer to § 1.8 (Customary International Law).

62 See Trial of Henry Wirz, Argument of the Judge Advocate (Special Military Commission, Washington D.C., Oct. 

20, 1865), reprinted in 40th Congress, House Executive Document No. 23, A Congressionally Mandated Report 

Summarizing the Military Commission’s Proceedings, 722, 764 (Dec. 7, 1867) (“Whatever the form of government 

may have been to which the leaders of the confederacy, so-called, aspired; whatever of wrong and injustice they 

sought to embody in their system; with whatever of oppression and tyranny they sought to grind down their subjects, 

the moment they asked a place among nations they were bound to recognize and obey those laws international 

which are and of necessity must be applicable alike to all.”); Chacon v. Eighty-Nine Bales of Cochineal, 5 F. Cas. 

390, 394 (C.C.D. Va. 1821) (Marshall, C.J.) (whether an entity “be a state or not, if she is in a condition to make 

war, and to claim the character and rights of a belligerent, she is bound to respect the laws of war;”). Refer to

§ 3.4.1.2 (Non-State Armed Groups With the Intention of Conducting Hostilities).

63 See, e.g., GWS art. 3 (“In the case of armed conflict not of an international character occurring in the territory of 

one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, ... .”); 1954

HAGUE CULTURAL PROPERTY CONVENTION ART. 19(1) (“In the event of an armed conflict not of an international 

character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be 

bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural 

property.”); CCW AMENDED MINES PROTOCOL art. 1(3) (“In case of armed conflicts not of an international 

character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound 

to apply the prohibitions and restrictions of this Protocol.”); CCW AMENDED art. 1(3) (“In case of armed conflicts 

not of an international character occurring in the territory of one of the High Contracting Parties, each party to the 

conflict shall be bound to apply the prohibitions and restrictions of this Convention and its annexed Protocols.”).

64 Special Court for Sierra Leone Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 

SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), ¶47 (Mar. 13, 2004) (“It suffices to say, for the purpose of the 

present case, that no one has suggested that insurgents are bound because they have been vested with personality in 

international law of such a nature as to make it impossible for them to be a party to the Geneva Conventions. 

Rather, a convincing theory is that they are bound as a matter of international customary law to observe the 

obligations by common Article 3 which is aimed at the protection of humanity.”).
1040

claim to be the State’s legitimate representatives.

65 Other practical considerations, such as the 

desire to be seen as legitimate, may also contribute to their compliance with the law of war.

66

17.3 SPECIAL AGREEMENTS BETWEEN PARTIES TO THE CONFLICT

Parties to a conflict may enter into agreements to bring into force law of war rules.

67 For 

example, pursuant to Common Article 3 of the 1949 Geneva Conventions, the parties to the 

conflict should further endeavor to bring into force, by means of special agreements, all or part 

of the other provisions of the 1949 Geneva Conventions.68 Similarly, pursuant to the 1954 

 65 GWS COMMENTARY 51-52 (“On the other hand, what justification is there for the obligation on the adverse Party 

in revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether 

insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible 

authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the 

country, or part of the country. The ‘authority’ in question can only free itself from its obligations under the 

Convention by following the procedure for denunciation laid down in Article 63. But the denunciation would not be 

valid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as a 

competent Government. It should, moreover, be noted that under Article 63 denunciation does not take effect 

immediately.”).

66 GWS COMMENTARY 52 (“If an insurgent party applies Article 3, so much the better for the victims of the conflict. 

No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy 

or brigandage are right.”). Refer to § 18.2 (Prudential Reasons Supporting the Implementation and Enforcement of 

the Law of War).

67 For example, Letter from James Robertson to George Washington (May 1, 1782) (“Sir, A Commission from the 

King appointing me Commander in Chief of his forces in this country having arrived by a late conveyance, I make it 

one of my first cares, to convince you of my wish to carry on the war agreeable to the rules which humanity formed, 

and the example of the politest nations recommended. I make this declaration of my resolution, in hope that I may 

find a similar inclination in you. To effect this, let us agree to prevent or punish every breach of the rules of war 

within the spheres of our command.”) and, Letter from George Washington to James Robertson (May 5, 1782) 

(“Sincerely lamenting the cruel necessity, which alone can induce so distressing a measure in the present instance, I 

do assure your Excellency, I am as earnestly desirous as you can be, that the war may be carried on agreeable to the 

rules which humanity formed, and the example of the politest nations recommends, and shall be extremely happy in 

agreeing with you to prevent or punish every breach of the rules of war within the sphere of our respective 

commands.”), reprinted in THE REMEMBRANCER; OR, IMPARTIAL REPOSITORY OF PUBLIC EVENTS FOR THE YEAR 

1782, PART II, 156-57.

68 GWS art. 3 (“The Parties to the conflict should further endeavour to bring into force, by means of special 

agreements, all or part of the other provisions of the present Convention.”); GWS-SEA art. 3 (same); GPW art. 3 

(same); GC art. 3 (same). For example, Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992, reprinted in

Marco Sassòli, Antoine A. Bouvier, Anne Quintin, III How Does Law Protect In War? Cases and Documents, Case 

No. 204: Former Yugoslavia, Special Agreements Between Parties to the Conflicts, 116-17 ¶2 (Mar. 2011) (“In 

accordance with the Article 3 of the four Geneva Conventions of August 12, 1949, the Parties agree to bring into 

force the following provisions ... . Captured combatants shall enjoy the treatment provided for by the Third Geneva 

Convention.”); U.N. COMMISSION ON HUMAN RIGHTS, Report on the situation of human rights in Afghanistan 

prepared by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights 

resolution 1984/55, U.N. Doc. E/CN.4/1985/21, 28-29 ¶104 (Feb. 19, 1985) (“Apparently in 1982 an agreement on 

conditions for the internment of foreign prisoners was signed between the Afghan resistance movement and the 

International Committee of the Red Cross (ICRC) under which the resistance expressed its intention to respect the 

spirit of the provisions of the Geneva Convention relative to the Treatment of Prisoners of War. This involves the 

application of article 3 of the Geneva Conventions under which the parties to armed conflict can conclude 

agreements or make statements specifying that they will apply all or part of the other provisions of the Conventions. 

Analysing this agreement as calculated to set an example for better treatment of prisoners of war, witnesses stated 

that since then the resistance movements had endeavoured to ensure that foreign prisoners were not tortured or 

assassinated.”).
1041

Hague Cultural Property Convention, the parties to the conflict shall endeavor to bring into force, 

by means of special agreements, all or part of the other provisions of that Convention.69

Parties to a non-international armed conflict may wish to conclude agreements on these 

and a variety of other subjects, such as:

• temporary ceasefire agreements to collect the wounded;

• agreements to permit passage of medical or other relief supplies for the civilian 

population;

• agreements for the accommodation of detainees in other States;70

• agreements to establish hospital or safety zones;

• agreements for the cessation of hostilities; and

• agreements for post-conflict clearance of remnants of war.71 

17.3.1 Communications Between Parties to the Conflict. The procedures that are used

for non-hostile relations between belligerents during international armed conflict may also be 

applied by parties to a non-international armed conflict.72

As is the case during international armed conflict, parties to a non-international armed 

conflict may agree to specific means of communication between them.

17.4 A STATE’S USE OF ITS DOMESTIC LAW AND NIAC

17.4.1 Ability of a State to Use Its Domestic Law Against Non-State Armed Groups. A 

fundamental principle of the international legal order is the sovereign equality of States, which 

 69 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(2) (“The parties to the Conflict shall endeavour to bring 

into force, by means of special agreements, all or part of the other provisions of the present Convention.”).

70 For example, International Committee of the Red Cross, External Activities: Africa—Latin American—Asia—

Middle East—Europe, 24 INTERNATIONAL REVIEW OF THE RED CROSS 230, 239-40 (Jul.-Aug. 1984) (“Negotiations 

carried out by the ICRC with, successively, the USSR, the Afghan opposition movement, Pakistan and Switzerland 

led to partial success. The parties agreed to the transfer and internment in a neutral country of Soviet soldiers 

detained by the Afghan opposition movements, in application, by analogy, of the Third Geneva Convention, relative 

to the treatment of prisoners of war. On the basis of this agreement, the ICRC has had access to some of the Soviet 

prisoners in the hands of the Afghan movements and has informed them, in the course of interviews without witness, 

of the possibility for transfer by the ICRC to Switzerland, where they would spend two years under the 

responsibility and watch of the Swiss government before returning to their country of origin. ... To date, eleven 

Soviet soldiers have accepted the proposal. The first three were transferred to Switzerland on 28 May 1982. Eight 

others arrived in August and October 1982, January and October 1983, and February and April 1984. One of them 

escaped to the Federal Republic of Germany in July 1983.”).

71 Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by 

the Cessation of Active Hostilities).

72 Refer to § 12.3 (Methods for Communication Between Belligerents).
1042

generally prohibits States from exercising sovereignty over one another.73 However, the 

principle of the sovereign equality of States is not applicable in armed conflicts between a State 

and a non-State armed group. A State may exercise both sovereign and belligerent rights over 

non-State armed groups.74 This means that a State may use not only its war powers to combat 

non-State armed groups, but it may also use its domestic law, including its ordinary criminal law, 

to combat non-State armed groups. 

The limits imposed by international law on a State’s action against non-State armed 

groups do not alter the basic principle that the State may exercise its sovereign powers against 

the non-State armed group.75

17.4.1.1 A State’s Power to Prosecute Hostile Activities. An important 

consequence of the fact that States may exercise sovereignty over persons belonging to a nonState armed group is that a State may prosecute individuals for participating in hostilities against 

it. Such conduct frequently constitutes crimes under ordinary criminal law (e.g., murder, assault, 

illegal destruction of property).

Although, during international armed conflict, lawful combatants are afforded certain 

immunities from the enemy State’s jurisdiction,

76 persons belonging to non-State armed groups 

lack any legal privilege or immunity from prosecution by a State that is engaged in hostilities 

against that group.

On the other hand, the non-State armed group lacks authority to prosecute members of 

the State armed forces. In addition, the non-State status of the armed group would not render 

inapplicable the privileges and immunities afforded lawful combatants and other State officials. 

Thus, for example, members of the armed forces of a State would continue to benefit from any 

privileges or immunities from the jurisdiction of foreign States that sought to exercise 

jurisdiction with respect to the actions of such State armed forces in a non-international armed 

conflict.77

 73 See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 2012 I.C.J. 99, 123 

(¶57) (“The Court considers that the rule of State immunity occupies an important place in international law and 

international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, 

of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal 

order.”).

74 The Prize Cases, 67 U.S. 635, 673 (1863) (“Now, it is a proposition never doubted, that the belligerent party who 

claims to be sovereign, may exercise both belligerent and sovereign rights, ... .”).

75 CCW AMENDED art. 1(4) (“Nothing in this Convention or its annexed Protocols shall be invoked for the purpose 

of affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintain 

or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.”). 

Consider AP II art. 3(1) (“Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a 

State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in 

the State or to defend the national unity and territorial integrity of the State.”).

76 Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

77 For example, Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in THE DIPLOMATIC AND OFFICIAL 

PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 124 (1848) (“This doubt has occasioned the President 

some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be 
1043

17.4.1.2 Range of Activities Subject to Prosecution. A State may also use its 

domestic law to make punishable a wide range of activity that extend beyond the activities that 

constitute actual fighting against the State. For example, joining the non-State armed group, 

providing material support to the armed group, failing to report the treasonous activities of the 

armed group, and other conduct may be punishable under a State’s domestic law.

78

17.4.1.3 Other Sovereign Authorities. In addition to the power to criminalize 

certain conduct, a State may use its law and other regulatory powers in its effort to address the 

threat of non-State armed groups. 

For example, the State could use its authority to tax, regulate, seize, or destroy property 

(e.g., weapons, vehicles, food, and medical equipment) within its jurisdiction as part of its effort 

against the non-State armed group.79 The use of these sovereign powers would be subject to 

domestic law restrictions, and might not depend on whether such action would be imperatively 

required by the necessities of war – the standard for the seizure of destruction of enemy property 

during international armed conflict.80 In any event, however, it would not be permissible for the 

State to seek to starve civilians as a method of combat.81 

17.4.2 Emergency Laws and Regulations. Many States have laws permitting the

government to alter or suspend laws (such as a declaration of martial law, and the establishment 

of curfews and other controls on the movement of persons and traffic), to enact emergency 

regulations (such as the establishment of monetary or trade regulations, or the rationing of food, 

fuel, and other critical materials), and to take other steps to protect the public (such as the 

issuance of identification cards, the development of detention rules for members of non-State 

 

signified to the government of the United States that the attack upon the steamboat ‘Caroline’ was an act of public 

force, done by the British colonial authorities [intended to address insurgents], and fully recognized by the queen’s 

government at home; and that, consequently, no individual concerned in that transaction can, according to the just 

principles of the laws of nations, be held personally answerable in the ordinary courts of law as for a private offense; 

and that upon this avowal of her majesty’s government, Alexander McLeod, now imprisoned on an indictment for 

murder alleged to have committed in that attack, ought to be released by such proceedings as are usual and are 

suitable to the case.”).

78 For example, 18 U.S.C. § 2339B(a)(1) (“Whoever knowingly provides material support or resources to a foreign 

terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 

years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To 

violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as 

defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 

212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism 

(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).”); 18 

U.S.C. § 2382 (“Whoever, owing allegiance to the United States and having knowledge of the commission of any 

treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President 

or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of 

misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.”).

79 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶3-170 (Apr. 

2009) (“Resource control measures include control of select resources to include foodstuffs, medical supplies, and 

key equipment through: • Rationing or purchase permits • Registration of firearms. • Registration of automobiles 

and trucks. • Export and import restrictions.”).

80 Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

81 Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).
1044

armed groups, and the establishment of special emergency courts).82 

The full range of actions that a State may take under its domestic law during noninternational armed conflict would depend on the content of that law, including applicable

constitutional restrictions.

83

17.4.3 Special Courts. As part of its emergency regulations, a State may establish special 

or emergency courts for cases involving unprivileged belligerents or other persons suspected of 

committing offenses related to the non-international armed conflict.

Such courts must be regularly constituted and afford all the judicial guarantees that are 

recognized as indispensable by civilized peoples.

84 Such courts may distinguish based on 

nationality.85 The procedures of such courts may deviate from those applicable during ordinary 

 82 For example, David Galula, Pacification in Algeria, 1956-1958, 21 (RAND Corporation, 2006) (“In the existing 

legal framework, proclamation of martial law was the only provision in case of disturbances endangering the 

security of the state. It would have entailed handing over all powers to the military authority and suspending private 

and public liberties. Government and Parliament considered this step too extreme. Hence they devised a new 

contingency, the so-called ‘state of emergency,’ which was declared for the first time for the Constantine area and 

for Kabylia in April 1955, and was extended to all Algeria in August 1955. Parliament voted a Special Powers Act 

(with the support of the Communists!), which gave the government a free hand for conducting its policy in Algeria 

by decree, notably in matters pertaining to economic development, economic and social reforms, territorial 

reorganization, public order, security of persons and property, and protection of the integrity of the territory. These 

special powers were vested in the existing government and would lapse with the end of its incumbency; the 

succeeding government would have to request an extension from the Parliament. The government in turn gave 

authority to the Minister-Resident (who by then had replaced the Governor General in Algiers) to regulate 

movements of persons and goods, assign places of residence, create forbidden zones, order searches, ban meetings, 

control the press, dissolve associations, collect reparations for willful damage and for aid given to the rebels, 

suspend or transfer civil servants, deprive elected representatives of their seats, postpone by-elections, and delegate 

certain civil powers to the military. Travel between France and Algeria was made subject to strict control (at least in 

theory).”); FRANK KITSON, GANGS AND COUNTER-GANGS 44 (1960) (“The legal code in Kenya in October 1952 was 

not very different from that in England. Certain acts such as theft or murder were illegal and if you committed them 

you were prosecuted. When the Emergency started some extra laws were made to fit the special circumstances. For 

example, it became illegal to administer the Mau Mau oath or to carry arms and certain areas of the forest were 

placed out of bounds. These extra laws, and there were many of them, were known as Emergency Regulations.”).

83 For example, FRANK KITSON, GANGS AND COUNTER-GANGS 289 (1960) (“No country which relies on the law of 

the land to regulate the lives of its citizens can afford to see that law flouted by its own government, even in an 

insurgency situation. In other words everything done by a government and its agents in combating insurgency must 

be legal. But this does not mean that the government must work within exactly the same set of laws during an 

insurgency as existed beforehand, because it is a function of a government when necessary. It does not mean that 

the law must be administered in exactly the same way during an uprising as it was in more peaceful times, because 

once again a government has the power to modify the way in which the law is administered if necessary, for the 

wellbeing of the people, although the exercise of such power is usually – and rightly – subject to considerable 

constitutional restraint.”).

84 Refer to § 8.16 (Criminal Procedure and Punishment).

85 For example, 10 U.S.C. § 948b (“(a) Purpose. –This chapter establishes procedures governing the use of military 

commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable 

by military commission.”) (emphasis added).
1045

proceedings, but deviations should be warranted by practical need.86

17.4.4 Reintegration Programs and Amnesty. States have used reconciliation and 

reintegration programs during hostilities as alternatives to prosecution to seek to de-radicalize 

and rehabilitate violent extremists.87

Although amnesty is normally left to the discretion of the State, AP II provides that, at 

the end of hostilities, the authorities in power shall endeavor to grant the broadest possible 

amnesty to persons who have participated in the armed conflict, or those deprived of their liberty 

for reasons related to the armed conflict, whether they are interned or detained.88

17.5 PRINCIPLE OF DISTINCTION IN NIAC

As discussed below, the principle of distinction applies during non-international armed 

conflict. It may be important to note certain differences between the situations that typically 

arise in non-international armed conflict as compared to those typically arising in international 

armed conflict.

 86 See Hamdan v. Rumsfeld, 548 U.S. 557, 632-33 (2006) (“The Government offers only a cursory defense of 

Hamdan's military commission in light of Common Article 3. As Justice Kennedy explains, that defense fails 

because ‘[t]he regular military courts in our system are the courts-martial established by congressional statutes.’ At 

a minimum, a military commission ‘can be ‘regularly constituted’ by the standards of our military justice system 

only if some practical need explains deviations from court-martial practice.’ As we have explained, no such need 

has been demonstrated here.”) (internal citations omitted); id. at 645-46 (Kennedy, J., concurring) (“At a minimum a 

military commission like the one at issue--a commission specially convened by the President to try specific persons 

without express congressional authorization--can be ‘regularly constituted’ by the standards of our military justice 

system only if some practical need explains deviations from court-martial practice. ... Relevant concerns, as noted 

earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not 

mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional 

principle that congressional statutes can be controlling, including the congressional direction that the law of war has 

a bearing on the determination.”).

87 For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for 

War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 131-34 (2008) 

(“In Pakistan, there is a reintegration program akin to the idea of ‘it takes a village.’ Village loyalties are 

paramount, and Pakistani leaders have found that returning a former combatant to his village and holding the village 

responsible for his conduct is a successful way to ensure that the person does not return to violence. Under this 

program, a village must agree to accept the return of the person and must pay the Government of Pakistan a 

‘retainer’ equal to about $5000 that it forfeits if the individual returns to hostilities. ... The Kingdom of Saudi 

Arabia uses a similar program, referred to as a ‘counseling program,’ to ‘de-radicalize’ and reintegrate former 

security prisoners back into society. ... Prisoners who have not committed capital crimes or killings enter the 

program immediately after they are captured. Upon release, the former prisoners are then reconnected with their 

families and given psychological evaluation and counseling. After a few months of rehabilitation, they are brought 

into contact with moderate Islamic scholars and encouraged to enter into discussions about their beliefs. The 

moderate scholars are able to counter extremist views with the Koran and other authoritative texts to explain 

alternative interpretations that the former prisoner may not have heard before. Along with the counseling program, 

the Saudis try to convince the former combatants that they have a stake in a peaceful and stable government by 

encouraging them to marry, paying for their weddings and subsequent education for their children, and helping them 

to find suitable employment and housing.”).

88 Consider AP II art. 6(5) (“At the end of hostilities, the authorities in power shall endeavour to grant the broadest 

possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for 

reasons related to the armed conflict, whether they are interned or detained.”).
1046

17.5.1 Discrimination in Conducting Attacks Against the Enemy in NIAC. Parties to a 

conflict must conduct attacks in accordance with the principle of distinction.

89

As during international armed conflict, an adversary’s failure to distinguish its forces 

from the civilian population does not relieve the attacking party of its obligations to discriminate 

in conducting attacks.

90 On the other hand – also as during international armed conflict – such

conduct by the adversary does not increase the legal obligations on the attacking party to 

discriminate in conducting attacks against the enemy. For example, even though tactics used by 

non-State armed groups may make discriminating more difficult, State armed forces – though 

obligated to be discriminate – are not required to take additional protective measures to 

compensate for such tactics.

17.5.1.1 Increased Difficulty in Identifying Enemy Forces and Other Military 

Objectives. During international armed conflict, State armed forces generally are readily 

distinguishable from the civilian population. Traditionally, conventional armed forces would 

often confront one another, with the civilian population of each opposing State remaining to the 

rear of the lines separating their respective military forces.91 During non-international armed 

conflict, however, discriminating in conducting attacks against the enemy may be more difficult 

because non-State armed groups often seek to blend in with the civilian population.92

17.5.1.2 Different Support Structures for Non-State Armed Groups. In addition to 

non-State armed groups, other military objectives may also be more difficult to identify because 

non-State armed groups often do not use military infrastructure (e.g., military bases, logistics 

facilities) to conduct and sustain their operations. Rather, non-State armed groups may seek to 

use ostensibly civilian buildings and resources to conduct and sustain their operations. Denying 

non-State armed groups such support may be particularly important to the success of military 

operations and justifiable under the law of war.

93

 89 Refer to § 17.7 (Rules on Conducting Attacks in NIAC).

90 Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to 

Discriminate in Conducting Attacks).

91 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE 

VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND 

HUMANITARIAN ACTION (1982) 26 (1984) (“The Falkland-Malvinas Islands' conflict provides a rare example of 

hostilities conducted by both sides with particular concern for the safety of the civilian population, as there were 

three civilian casualties. The instructions received both by the Argentine armed forces when disembarking on the 

island of South Georgia and on the archipelago, and by the British pilots and soldiers emanated from the desire to 

respect the civilian population. However, mention must also be made of the precautionary measures which were 

taken by the Parties to the civilian population in accordance with Part II of the Fourth Convention.”).

92 For example, Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the 

American Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010 

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717 (“As recent events have shown, al-Qaeda has not 

abandoned its intent to attack the United States, and indeed continues to attack us. ... As you know, this is a conflict 

with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks 

against us and our allies while hiding among civilian populations. That behavior simultaneously makes the 

application of international law more difficult and more critical for the protection of innocent civilians.”).

93 Christopher Paul, Colin P. Clarke, and Beth Grill, Victory Has a Thousand Fathers: Sources of Success in 

Counterinsurgency, 98 (RAND Corporation, 2010) (“The ability of insurgents to replenish and obtain personnel, 
1047

17.5.1.3 Increased Strategic Importance of Minimizing Incidental Civilian 

Casualties. For various reasons, there may be an increased emphasis by State armed forces on 

minimizing the risk of incidental civilian casualties, even beyond the requirements of the law of 

war.

The sympathy and support of the civilian population are frequently important objectives

in non-international armed conflict.94 In order to ensure such support, commanders and their 

forces may operate under rules of engagement that are more restrictive than what the law of war

requires.

95

17.5.2 Distinguishing State Forces From the Civilian Population in NIAC. During noninternational armed conflict, as during international armed conflict, the principle of distinction 

prohibits the use of protected persons or objects to shield, favor, or impede military operations.96 

However, it may be important to consider certain differences in the circumstances arising in non-

 

materiel, financing, intelligence, and sanctuary (tangible support) perfectly predicts success or failure in the 30 

COIN cases considered here. In all eight cases in which the COIN force prevailed, it also disrupted at least three 

insurgent support factors, while none of the COIN forces in the 22 losing cases managed to disrupt more than 

two.”); Robert Wayne Gehring, Protection of Civilian Infrastructures, 42 LAW AND CONTEMPORARY PROBLEMS 86, 

95 (1978) (“The importance of those who collect funds for the insurgent organization’s operations, gather and 

analyze information about government forces, procure the necessary supplies from within or without the country, 

organize the delivery of the supplies to the military forces of the insurgency, and organize the recruitment of 

members of the local population cannot be overestimated. While these functions may be performed by military 

members of the movement, in many cases military training is not required or is not even an asset in their 

performance. One experienced observer, Sir Robert Thompson, believes that so long as the supporting organization 

remains intact, killing insurgents in the field is largely useless: the casualties will be replaced by new recruits. A 

study of characteristics that determined the outcome in forty-four revolutions of this century found the single most 

important factor was not battlefield success but whether the government was successful in interdicting the 

insurgents’ supply of arms and ammunition. The government cannot rely upon success on the field of battle to bring 

its ultimate victory. It must starve the insurgent military forces by uncovering and neutralizing the civilian 

infrastructure supporting those military forces.”).

94 FRANK KITSON, BUNCH OF FIVE 59, 282, 289 (1977) (“The first aim of a government in an Emergency is to retain 

or regain the allegiance of the population. [...] There has never been much doubt that the main characteristic which 

distinguishes campaigns of insurgency from other forms of war is that they are primarily concerned with the struggle 

for men’s minds, since only by succeeding in such a struggle with a large enough number of people can the rule of 

law be undermined and constitutional institutions overthrown.”).

95 For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in

International Security Assistance Force – Afghanistan, Headquarters, General Petraeus Issues Updated Tactical 

Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“We must continue – indeed, redouble – our 

efforts to reduce the loss of innocent civilian life to an absolute minimum. Every Afghan civilian death diminishes 

our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may 

prove to be strategic setbacks. We must never forget that the center of gravity in this struggle is the Afghan people; 

it is they who will ultimately determine the future of Afghanistan ... Prior to the use of fires, the commander 

approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence, 

fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational 

security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with the 

previous version, does not prevent commanders from protecting the lives of their men and women as a matter of 

self-defense where it is determined no other options are available to effectively counter the threat.).”) (ellipsis in 

original).

96 Refer to § 17.6.3 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).
1048

international armed conflict.

17.5.2.1 Positioning Military Forces Near the Civilian Population to Win Their 

Support and to Protect Them. During non-international armed conflict, insurgents or terrorists 

may seek to attack the civilian population, and the use of the State’s forces to protect the civilian 

population from such attacks may be a key objective of State operations in non-international 

armed conflict.

97 Thus, positioning military forces near the civilian population may be essential

to the protection of the civilian population, and States have not interpreted such practices to be 

inconsistent with the principle of distinction.98

17.5.2.2 Role of Civilian Personnel, Including Law Enforcement Personnel, in 

Addressing Non-State Armed Groups. Members of States’ civilian agencies, such as judges, 

prosecutors, and police and other members of its law enforcement apparatus, often play a critical 

role in addressing non-State armed groups.99 Although such personnel might be viewed by the 

adversary as “military objectives” or as taking a direct part in hostilities, States have not 

interpreted the principle of distinction to require the separation of such personnel from the 

civilian population in non-international armed conflict.

17.6 RESPECT AND HUMANE TREATMENT OF PERSONS TAKING NO ACTIVE PART IN HOSTILITIES

IN NIAC

All persons who do not take a direct part or who have ceased to take part in hostilities,

whether or not their liberty has been restricted, are entitled to respect for their person, honor and 

convictions, and religious practices. They shall in all circumstances be treated humanely, 

 97 For example, General David Petraeus, Multi-National Force – Iraq Counterinsurgency Guidance, 1 (Jun. 13, 

2007) (“1. Secure the people where they sleep. Population security is our primary mission. And achieving 

population security promises to be an extremely long-term endeavor – a marathon, not a sprint – so focusing on this 

mission now is essential. Most extra-judicial killings occur at night and in people’s homes, while most spectacular 

terrorist attacks occur during the day, where people shop, work and play – anywhere they gather publicly. These 

key areas must be secured. Once secured, an area cannot be abandoned; it must be permanently controlled and 

protected, 24 hours a day, or else the enemy will re-infiltrate and kill or intimidate those who have supported us. 

This protection must be kept up until the area can be effectively garrisoned and controlled by Iraqi police (ideally 

from the area being secured) and other security services. We can’t be everywhere – therefore you must assess your 

AOR, identify priority areas, work to secure them first, and then expand into other areas.”).

98 For example, General David Petraeus, International Security Assistance Force/United States Forces-Afghanistan 

Headquarters, COMISAF’s Counterinsurgency Guidance, 1 (Aug. 1, 2010) (“Live among the people. We can’t 

commute to the fight. Position joint bases and combat outposts as close to those we're seeking to secure as is 

feasible. Decide on locations with input from our partners and after consultation with local citizens and informed by 

intelligence and security assessments.”).

99 For example, A.H. Peterson, G.C. Reinhardt and E.E. Conger, Symposium on the Role of Airpower in 

Counterinsurgency and Unconventional Warfare: The Malayan Emergency, 13 (RAND Corporation, Jul. 1963) 

(“COMMODORE GARRISSON: This Malayan campaign was run basically as a civilian operation by the civilian 

power. The first line of defense was the civilian Police, who received more equipment than the normal police. Any 

military operation had to be cleared with the civilian authority, who in effect called for military operations of a 

specific nature. I think this is the first thing to bear in mind. Police provided protection of the local population 

wherever possible. The true military forces went out to try to get the bandits.”).
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without any adverse distinction.100

In addition, the following prohibitions apply:

17.6.1 Prohibition on Declaring That No Quarter Be Given. It is prohibited to order that 

there shall be no survivors.

101

Prohibition on the Taking of Hostages. The taking of hostages is prohibited.102 17.6.2

17.6.3 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede 

Military Operations. It is prohibited to use civilians, persons placed hors de combat, or other 

protected persons to shield, favor, or impede military operations.103

Prohibition on Pillage. Pillage is prohibited.

104 17.6.4 There is an affirmative obligation 

to take measures to protect the wounded, sick, and shipwrecked from pillage, and the dead from 

being despoiled.105

17.6.5 Prohibition on Acts of Terrorism. It is prohibited to commit, or threaten to 

commit, acts of terrorism against persons who do not take a direct part or who have ceased to 

take part in hostilities.106

17.6.6 Prohibition on Offering of Rewards for Persons Dead or Alive. As during 

international armed conflict, it is prohibited to offer a reward for enemy persons to be turned 

over dead or alive.107 On the other hand, as in international armed conflict, there is no 

prohibition against offering rewards for the apprehension of insurgents or for giving information 

 100 Consider AP II art. 4(1) (“All persons who do not take a direct part or who have ceased to take part in hostilities, 

whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and 

religious practices. They shall in all circumstances be treated humanely, without any adverse distinction.”).

101 Consider AP II art. 4(1) (“It is prohibited to order that there shall be no survivors.”). Refer to § 5.4.7 (Prohibition 

Against Declaring That No Quarter Be Given).

102 See GWS art. 3 (prohibiting “taking of hostages;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 

(same). Consider AP II art. 2 (prohibiting “taking of hostages;”). Refer to § 5.16.3 (Prohibition on Taking 

Hostages).

103 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).

104 Consider AP II art. 4(2)(g) (prohibiting pillage “at any time and in any place whatsoever” against “[a]ll persons 

who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been 

restricted”). Refer to § 5.17.4 (Pillage Prohibited).

105 Refer to § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).

106 Consider AP II art. 4(2) (prohibiting with respect to all persons who do not take a direct part or who have ceased 

to take part in hostilities, whether or not their liberty has been restricted, “d) acts of terrorism” and “h) threats to 

commit any of the foregoing acts”). Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or 

Terrorism).

107 Refer to § 5.26.3.1 (Prohibition on Offering Rewards for Enemy Persons Dead or Alive).
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leading to the apprehension or killing of insurgents in combat.108

17.6.7 Prohibition on Collective Punishment. Collective punishments, whether 

administered by a court or through administrative measures, are prohibited.109 Collective 

penalties are prohibited as a general matter.110

17.7 RULES ON CONDUCTING ATTACKS IN NIAC

Parties to a conflict must conduct attacks in accordance with the principles of distinction 

and proportionality. In particular, the following rules must be observed: 

• Combatants may not direct attacks against civilians, civilian objects, or other protected 

persons and objects.111

• The distinctive emblem must not be used while engaging in attacks.112

• Combatants must refrain from attacks in which the expected loss of life or injury to 

civilians, and damage to civilian objects incidental to the attack, would be excessive in 

relation to the concrete and direct military advantage expected to be gained.

113

• Combatants must take feasible precautions in planning and conducting attacks to avoid

incidental harm to civilians and civilian objects.

114

• In conducting attacks, combatants must assess in good faith the information that is 

 108 See 1958 UK MANUAL ¶116 note 1(b) (“If a government or military commander offers rewards for all or 

individual armed insurgents killed or wounded by the forces engaged in quelling the insurrection, such offers are 

open to the same objection as those set out above in respect of hostilities between belligerents, and are probable 

unlawful. On the other hand, there is no objection to offering rewards for the apprehension of insurgents or for 

giving information leading to the apprehension or killing of insurgents in combat. A State is entitled to secure the 

capture of armed rebels in order that they may be tried as such, or to kill or wound them in combat. However, the 

probable effect of the common Art. 3, when applicable, is to prohibit inducements being given to troops, police or 

civilians, to take the law into their own hands.”).

109 Consider AP II art. 4(2) (“Without prejudice to the generality of the foregoing, the following acts against the 

persons referred to in paragraph 1 [i.e., all persons who do not take a direct part or who have ceased to take part in 

hostilities, whether or not their liberty has been restricted,] are and shall remain prohibited at any time and in any 

place whatsoever: ... b) collective punishments;”); BOTHE, PARTSCH, & SOLF, NEW RULES 642 (AP II art. 4, ¶2.5) 

(“Paragraph 2 (b) prohibits ‘collective punishments’. The Committee had proposed ‘collective penalties’. The 

change of this wording was accepted in order to include not only penalties imposed by a court but also penalties 

imposed by administrative measures.”).

110 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

111 Refer to § 5.5 (Discrimination in Conducting Attacks).

112 Refer to § 17.16.2 (Improper Use of the Distinctive Emblem).

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

114 Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of 

Harm to Protected Persons and Objects).
1051

available to them.115

• Specific rules apply to the use of certain types of weapons.116

These rules apply to all parties to a non-international armed conflict, including persons 

belonging to non-State armed groups, and persons who decide to participate in hostilities of their 

own initiative. However, persons who belong to non-State armed groups, or who decide to 

participate in hostilities of their own initiative, may also be subject to the State’s domestic 

law.

117

17.7.1 AP II Rule on Works and Installations Containing Dangerous Forces. AP II 

provides that works or installations containing dangerous forces, namely dams, dykes, and 

nuclear electrical generating stations, shall not be made the object of attack, even where these 

objects are military objectives, if such attack may cause the release of dangerous forces and 

consequent severe losses among the civilian population.118 The United States has objected to 

this rule in the context of international armed conflict and does not view it as reflecting 

customary international law in either international or non-international armed conflict insofar as 

the rule deviates from the regular application of the principles of distinction and 

proportionality.

119

However, the Executive, in submitting AP II to the Senate for its advice and consent to 

ratification in 1987, did not recommend a reservation from or an understanding applicable to this 

provision of AP II based on an assessment that preserving the option to attack works or 

installations containing dangerous forces would not be as important in internal conflicts as 

preserving that option would be in international armed conflicts.120

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

116 Refer to § 17.13.2 (Certain Types of Weapons With Specific Rules on Use in NIAC).

117 Refer to § 17.4 (A State’s Use of Its Domestic Law and NIAC).

118 Consider AP II art. 15 (“Works or installations containing dangerous forces, namely dams, dykes and nuclear 

electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, 

if such attack may cause the release of dangerous forces and consequent severe losses among the civilian 

population.”).

119 Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).

120 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the 

Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the 

Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law

(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 434 (1987) 

(“Professor HAMILTON DESAUSSURE asked for an explanation of the apparent inconsistency between the United 

States rejection of the provisions in article 56 of Protocol I, relating to dams and dykes, and the simultaneous 

acceptance of article 15 of Protocol II, which contains similar provisions. Mr. MATHESON replied that the United 

States military based its objections on a pragmatic, real-world estimation of the difference between the two 

situations. The military perceives that in international conflicts, many situations may arise where it is important to 

attack and destroy parts of an electric power grid, such as a nuclear or hydroelectric generating station. In internal 

conflicts, on the other hand, such a significant real-world need will not exist. Preserving the military option in 

international conflicts where such facilities are more likely to become an object of military attack, therefore, is very 

important.”).
1052

17.8 IMPARTIAL HUMANITARIAN ORGANIZATIONS AND HUMANITARIAN ACTIVITIES DURING 

NIAC

An impartial humanitarian body, such as the International Committee of the Red Cross, 

may offer its services to the parties to the conflict.121 The civilian population may, even on its 

own initiative, offer to collect and care for the wounded, sick, and shipwrecked.122 Similarly, the 

United Nations Educational, Scientific and Cultural Organization may offer its services to the 

parties to the conflict.123 

17.8.1 State Consent for Humanitarian Organizations. The activities of relief 

organizations are subject to the consent of the State concerned.124 

States may withhold consent for, inter alia, legitimate military reasons, but should not 

arbitrarily withhold consent.125 The safety of personnel of humanitarian organizations is a 

legitimate consideration for a government in consenting to their operations. Where a State has 

accepted the services of an impartial humanitarian organization, the State must not regard such 

service, such as the provision of medical care, as unlawful and subject to punishment.126

17.9 PROTECTION OF THE CIVILIAN POPULATION IN NIAC

17.9.1 Displacement of the Civilian Population. The displacement of the civilian 

population shall not be ordered for reasons related to the conflict unless the security of the 

 121 GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer 

its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). Consider

AP II art. 18 (“Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red 

Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional 

functions in relation to the victims of the armed conflict.”).

122 Consider AP II art. 18(1) (“The civilian population may, even on its own initiative, offer to collect and care for 

the wounded, sick and shipwrecked.”).

123 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(3) (“The United Nations Educational, Scientific and 

Cultural Organization may offer its services to the parties to the conflict.”).

124 Consider AP II art. 18(2) (“If the civilian population is suffering undue hardship owing to a lack of the supplies 

essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are 

of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall 

be undertaken subject to the consent of the High Contracting Party concerned.”).

125 Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE 

FROM THE PRESIDENT TRANSMITTING AP II 6 (“For its part, the United States would expect that the requirement of 

consent [in article 18 of AP II] by the party concerned would not be implemented in an arbitrary manner, and that 

essential relief shipments would only be restricted or denied for the most compelling and legitimate reasons.”).

126 Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During 

Armed Conflict, ¶VI, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to the 

Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3, 

2016 (“VI. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. A. 

States should not arbitrarily withhold their consent to the activities of humanitarian organizations. B. Where a State 

has accepted the services of an impartial humanitarian organization, it must not regard such services, including the 

provision of medical care, as unlawful and subject to punishment.”).
1053

civilians involved or imperative military reasons so demand.127 Should such displacements have 

to be carried out, all possible measures shall be taken in order that the civilian population may be

received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.

128

Civilians shall not be compelled to leave their own territory for reasons connected with 

the conflict.129 A State must not compel civilians to leave its territory for reasons connected to 

the conflict, while insurgents that control territory must not compel civilians to leave the area 

under their authority.130

17.9.1.1 Security of the Civilians Involved or Imperative Military Reasons. 

Legitimate reasons to order the movement of the civilian population may include, for example:

• affording the civilian population greater protection from insurgents; and

• reducing the support provided to insurgents from elements of the civilian population.131

Legitimate reasons to order the movement of civilians do not include the use of individuals or 

groups of civilians around military objectives as involuntary human shields.

132

17.9.2 Prohibition on Starvation of Civilians as a Method of Combat. Starvation of 

civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, 

remove, or render useless, for that purpose, objects indispensable to the survival of the civilian 

population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, 

 127 Consider AP II art. 17(1) (“The displacement of the civilian population shall not be ordered for reasons related to 

the conflict unless the security of the civilians involved or imperative military reasons so demand.”).

128 Consider AP II art. 17(1) (“Should such displacements have to be carried out, all possible measures shall be 

taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, 

safety and nutrition.”).

129 Consider AP II art. 17(2) (“Civilians shall not be compelled to leave their own territory for reasons connected 

with the conflict.”).

130 Cf. ICRC AP COMMENTARY 1475 (¶4859) (“First, there is a question whether, within the meaning of this 

provision [in article 17 of AP II], the term ‘territory’ is equivalent to country. The ICRC draft referred to ‘national 

territory’. Some amendments proposed substituting the formula ‘across the frontiers of the country of origin’. It is 

clear that there was never any doubt in anyone's mind that the phrase was intended to refer to the whole of the 

territory of a country. However, the text states that it is prohibited to compel civilians to leave ‘their own territory’. 

In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by 

Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive 

part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel 

civilians to leave the area under their authority.”).

131 For example, Lt. Col. Jerome F. Bierly and Timothy W. Pleasant, Malaya—A Case Study, MARINE CORPS 

GAZETTE 46, 48 (Jul. 1990) (“The Briggs Plan called for the movement of the general population into protected 

areas. In all, a total of 410 villages were eventually moved into areas fortified against guerrilla attacks. This served 

two purposes: It helped to protect the populace from the attacks, and at the same time it cut off the majority of the 

food supply to the guerillas. Also, the Chinese population, from which the guerillas drew most of their support, was 

provided a situation in which they could participate in the local government and establish a degree of economic 

prosperity they had not previously enjoyed.”).

132 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military 

Operations).
1054

livestock, drinking water installations and supplies, and irrigation works.133

17.9.2.1 Starvation of Enemy Forces Not Prohibited. It is only actions that are for 

the purpose of starving civilians as a method of combat that are prohibited under this rule; 

measures to starve enemy forces are not prohibited.134 For example, States may institute general 

food control programs that involve the destruction of crops and the adequate provision of the 

civilian population with food.135

Military action intended to starve enemy forces, however, must not be taken where it is 

expected to result in incidental harm to the civilian population that is excessive in relation to the 

military advantage anticipated to be gained.136

Feasible precautions to reduce the risk of harm to the civilian population or other 

reasonable measures to mitigate the burden to the civilian population may also be warranted 

when seeking to starve enemy forces.137

17.10 PROTECTION OF CHILDREN IN NIAC

17.10.1 General Protection and Care of Children. Children shall be provided with the 

care and aid they require.

138

Children shall receive an education, including religious and moral education, in keeping 

with the wishes of their parents, or in the absence of parents, of those responsible for their 

care.139

All appropriate steps shall be taken to facilitate the reunion of families temporarily 

 133 Consider AP II art. 14 (“Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to 

attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian 

population, such as food stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water 

installations and supplies and irrigation works.”).

134 Refer to § 5.20.1 (Starvation – Distinction).

135 For example, R.W. Komer, The Malayan Emergency in Retrospect: Organization of A Successful 

Counterinsurgency Effort, 59 (RAND Corporation, Feb. 1972) (“In order to force the insurgents to make supply 

their major concern, the GOM turned to sizable food denial campaigns as the preferred form of security force 

operations. By July 1953 no less than 77 such operations had been mounted in the state of Negri Sembilan alone. ... 

It did not take much ‘seepage’ to feed a guerrilla who could subsist on a daily ration of a handful of rice. But he 

could store without detection only about six to eight weeks’ supply, and the number of people, time, and effort 

involved in a ‘food lift’ from village to jungle edge to deep jungle was such as to make the lift vulnerable to 

discovery.”).

136 Refer to § 5.20.2 (Starvation – Proportionality).

137 Refer to § 5.20.2 (Starvation – Proportionality).

138 Consider AP II art. 4(3) (“Children shall be provided with the care and aid they require, ... .”).

139 Consider AP II art. 4(3)(a) (“they shall receive an education, including religious and moral education, in keeping 

with the wishes of their parents, or in the absence of parents, of those responsible for their care;”).
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separated.

140

Measures shall be taken, if necessary, and whenever possible with the consent of their 

parents or persons who by law or custom are primarily responsible for their care, to remove 

children temporarily from the area in which hostilities are taking place to a safer area within the 

country and ensure that they are accompanied by persons responsible for their safety and wellbeing.141

The death penalty shall not be pronounced on persons who were under the age of 

eighteen years at the time of the offense and shall not be carried out on pregnant women or 

mothers of young children.142

17.10.2 Children and Participation in Non-International Armed Conflict. Children who 

have not attained the age of fifteen years shall neither be recruited in the armed forces or groups 

nor allowed to take part in hostilities.143 Children who are captured and who have taken a direct 

part in hostilities remain entitled to the special protections afforded to children.

144

The use or recruitment of child soldiers is an offense in U.S. law.145 The United States 

has additional obligations as a Party to the Child Soldiers Protocol.146

17.11 PROTECTION OF CULTURAL PROPERTY IN NIAC

17.11.1 Application of Certain Provisions of the 1954 Hague Cultural Property 

Convention. In the event of an armed conflict not of an international character occurring within

the territory of one of the Parties to the 1954 Hague Cultural Property Convention, each party to 

the conflict shall be bound to apply, as a minimum, the provisions of the 1954 Hague Cultural 

Property Convention that relate to respect for cultural property.147

 140 Consider AP II art. 4(3)(b) (“all appropriate steps shall be taken to facilitate the reunion of families temporarily 

separated;”).

141 Consider AP II art. 4(3)(e) (“[M]easures shall be taken, if necessary, and whenever possible with the consent of 

their parents or persons who by law or custom are primarily responsible for their care, to remove children 

temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they 

are accompanied by persons responsible for their safety and well-being.”).

142 Refer to § 8.16.2.4 (Limitations on the Death Penalty).

143 Consider AP II art. 4(3)(c) (“[C]hildren who have not attained the age of fifteen years shall neither be recruited in 

the armed forces or groups nor allowed to take part in hostilities;”); ROME STATUTE art. 8(2)(e)(vii) (defining “war 

crime” to include “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or 

using them to participate actively in hostilities” in non-international armed conflict).

144 Consider AP II art. 4(3)(d) (“the special protection provided by this Article to children who have not attained the 

age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of 

sub-paragraph c) and are captured;”).

145 Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).

146 Refer to § 4.20.5 (Child Soldiers); § 17.2.1.2 (Implicit Application of Treaty Provisions to Situations in NIAC).

147 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of an 

international character occurring within the territory of one of the High Contracting Parties, each party to the 
1056

17.11.2 Obligations to Respect Cultural Property. The obligation to respect cultural 

property includes essentially negative duties, i.e., duties to refrain from acts of hostility directed 

against cultural property and duties to refrain from the use of cultural property in support of 

military operations where such use is not imperatively necessary.148 

For example, parties to a conflict must not direct acts of hostility against cultural 

property, its immediate surroundings, or appliances in use for its protection, unless such action is 

required by imperative military necessity.149 

In addition, no use should be made of cultural property, its immediate surroundings, or 

appliances in use for its protection, for purposes that are likely to expose it to destruction or 

damage in the event of armed conflict, unless such action is required by imperative military 

necessity.150

17.12 USE OF CAPTURED OR SURRENDERED ENEMY PERSONNEL IN NIAC

In contrast to the rules during international armed conflict, State forces may use captured 

or surrendered enemy personnel in operations against enemy non-State armed groups. The 

cooperation of enemy personnel may not, however, be procured through illegal methods.

17.12.1 Compelling Captured or Surrendered Enemy Personnel to Take Part in the 

Conflict. During international armed conflict, it is prohibited to compel the nationals of the 

hostile party to take part in the operations of war directed against their own country.151 

Additional restrictions apply with respect to POWs, retained personnel, protected persons in the 

home territory of a belligerent, and protected persons in occupied territory.

152

These rules, however, do not apply during non-international armed conflict. Under 

international law, a State may compel its nationals to serve in its armed forces and to fight 

against non-State armed groups.

153 For example, in contrast to POWs, captured insurgents who 

are nationals of that State could be required to serve in that State’s armed forces or to take part in 

 

conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for 

cultural property.”).

148 Refer to § 5.18.2 (Respect and Safeguarding of Cultural Property). Consider AP II art. 16 (“Without prejudice to 

the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 

May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places 

of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military 

effort.”).

149 Refer to § 5.18.5 (Refraining From Any Act of Hostility).

150 Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or 

Damage).

151 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed 

Against Their Own Country).

152 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties); 

§ 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on 

Compulsory Service in an Occupying Power’s Armed Forces).

153 Refer to § 4.5.2.4 (Draftees).
1057

operations directed against their former comrades.154

17.12.2 Methods of Gaining Cooperation. Inhumane treatment or other illegal methods 

(such as threats to commit unlawful acts) may not be used to gain the cooperation of captured 

enemy persons.155

However, a combination of threats of criminal punishment and inducements (e.g., 

amnesty, monetary rewards) may be used to seek to gain the cooperation of captured enemy 

persons.

156 For example, law enforcement authorities often use the cooperation of members of 

criminal gangs or conspiracies to thwart and to prosecute the other participants or leaders in that 

criminal enterprise.157

17.13 WEAPONS IN NIAC

17.13.1 Prohibited Weapons in NIAC. The use of the following types of weapons is 

 154 For example, Donald A. MacCuish and Spencer C. Tucker, Pseudoforces, in ENCYCLOPEDIA OF INSURGENCY 

AND COUNTERINSURGENCY: A NEW ERA OF MODERN WARFARE 452 (2013) (“Pseudoforces are military units made 

up of former insurgents who have been turned to work with counterinsurgency forces against their former 

colleagues. This is possible because insurgent rank and filers are generally not as committed as their ideologically 

bound leaders. Pseudoforces are a tremendous advantage in counterinsurgency operations. They can identify 

certain of the insurgents, are well familiar with the operational terrain and the villagers, and understand what 

motivates the insurgents and their supporters. They are of immense importance. Pseudoforces have played a role in 

virtually every insurgency since World War II (1939-1945). ... During the Dhofar campaigns in Oman (1970-1975), 

the British made extensive use of pseudoforces, employing some 1,600 in 21 different units based on tribal 

affiliations. The Portuguese also made extensive use of pseudoforces during the insurgencies in their African 

territories. Notable among these were the Flechas (‘Arrows’) in Angola.”); MAJOR LAWRENCE M. GREENBERG, THE 

HUKBALAHAP INSURRECTION: A CASE STUDY OF A SUCCESSFUL ANTI-INSURGENCY OPERATION IN THE PHILIPPINES 

– 1946-1955 125 (1986) (“On the island of Panay, the Philippine Army tried a variation of the ‘Force X’ concept to 

break the local guerrilla structure. Accompanied by three military intelligence agents, a group of twenty former 

Huks were infiltrated into the island’s interior. After three months of gathering information, establishing their cover 

as a bona fide Huk unit, and gaining the confidence of the island’s Huk leadership, they hosted a ‘by invitation only’ 

barbecue for the Panay High Command. Between the ribs and potato salad, the covert government force sprang an 

ambush that killed or captured nearly all the Panay commanders and crippled the organization on the island for the 

duration of the campaign.”).

155 Refer to § 8.2 (Humane Treatment of Detainees); § 8.2.4 (Threats to Commit Inhumane Treatment).

156 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-19 (¶1-104) (Dec. 2006) 

(“Nothing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters 

among the public are deserting or providing information to government authorities. Counterinsurgents may attract 

deserters or informants by arousing fear of prosecution or by offering rewards.”).

157 For example, Benjamin Weiser, Terrorist Has Cooperated With U.S. Since Secret Guilty Plea in 2011, Papers 

Show, THE NEW YORK TIMES, Mar. 25, 2013 (“A Somali terrorist with ties to Al Qaeda whose capture and 

interrogation aboard a United States naval ship in 2011 fueled debate about the Obama administration’s 

counterterrorism tactics secretly pleaded guilty in Manhattan and has been cooperating with the authorities, court 

documents released on Monday show. The terrorist, Ahmed Abdulkadir Warsame, served as a military commander 

with the Shabab in Somalia and worked as a liaison with Al Qaeda’s branch in Yemen, including brokering a deal 

for the Shabab to buy weapons directly from the Qaeda group, the government has said. The newly unsealed court 

papers show Mr. Warsame pleaded guilty in a closed court proceeding in Manhattan in December 2011, about five 

months after he was brought to New York. After the plea, he met weekly with the government for hours at a time, 

disclosing intelligence information about his Shabab and Qaeda co-conspirators, who included ‘high-level 

international terrorist operatives,’ prosecutors said in one highly redacted letter dated March 2012.”).
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prohibited during non-international armed conflict:

• weapons calculated to cause superfluous injury;

158

• inherently indiscriminate weapons;159

• poison, poisoned weapons, poisonous gases, and other chemical weapons;160

• biological weapons;161

• weapons that injure by fragments that are non-detectable by X-rays;

162

• certain types of mines, booby-traps, and other devices;163 and

• blinding lasers.

164

17.13.2 Certain Types of Weapons With Specific Rules on Use in NIAC. Certain types 

of weapons are subject to specific rules that apply to their use by the U.S. armed forces in noninternational armed conflict. These weapons include:

• mines, booby-traps, and other devices (except certain specific classes of prohibited 

mines, booby-traps, and other devices);165

• incendiary weapons;166

• laser weapons (except blinding lasers);167 and

• explosive ordnance.168

17.14 PROTECTION OF THE WOUNDED, SICK, SHIPWRECKED, AND DEAD IN NIAC

17.14.1 Respect, Protection, Humane Treatment, and Medical Care of the Wounded, 

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

159 Refer to § 6.7 (Inherently Indiscriminate Weapons).

160 Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).

161 Refer to § 6.9 (Biological Weapons).

162 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

163 Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).

164 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

165 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

166 Refer to § 6.14 (Incendiary Weapons).

167 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent 

Blindness).

168 Refer to § 6.19 (Explosive Ordnance).
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Sick, and Shipwrecked. All the wounded, sick, and shipwrecked, whether or not they have taken 

part in the armed conflict, shall be respected and protected.169 

17.14.1.1 Types of Persons Who Are Considered Wounded, Sick, and 

Shipwrecked in NIAC. The wounded, sick, and shipwrecked in non-international armed conflict 

may be understood to include:

• persons who have been rendered unconscious or otherwise have been incapacitated 

because of their wounds, sickness, or shipwreck;

170

• persons who have surrendered as a consequence of their health; and171

• persons who have been shipwrecked (i.e., helpless persons in distress at sea or stranded 

on the coast) from any cause, including forced landings at sea by or from aircraft.172

Of course, any person who commits hostile acts or attempts to evade capture forfeits 

protection as someone who is placed hors de combat.

173

17.14.1.2 Meaning of “Respect and Protection” of the Wounded, Sick, and 

Shipwrecked. The wounded, sick, and shipwrecked must be respected and protected at all times. 

This means that they should not be knowingly attacked, fired upon, or unnecessarily interfered 

with.174 

Persons who are part of armed forces or groups, however, are deemed to have accepted 

the risk of harm due to deliberate proximity to military objectives.

175 Although the presence of 

such persons does not serve to exempt nearby military objectives from attack due to the risk that 

such persons would be incidentally harmed, feasible precautions to reduce the risk of harm to 

such persons who are wounded, sick, or shipwrecked must be taken.

176

The respect and protection afforded the wounded, sick, and shipwrecked do not 

immunize them from search, or other necessary security measures, or capture and detention, even 

if they are receiving medical care.

177

 169 Consider AP II art. 7(1) (“All the wounded, sick and shipwrecked, whether or not they have taken part in the 

armed conflict, shall be respected and protected.”).

170 Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or 

Shipwreck).

171 Refer to § 5.9.3 (Persons Who Have Surrendered).

172 Compare § 7.3.1.2 (Shipwrecked).

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

174 Compare § 7.3.3 (Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked).

175 Compare § 7.3.3.1 (Incidental Harm Not Prohibited).

176 Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

177 Compare § 7.3.3.2 (Search and Other Security Measures Not Prohibited); § 7.3.3.3 (Capture of Wounded, Sick, 

and Shipwrecked Not Prohibited).
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Booby-trapping the wounded or sick is expressly prohibited.178

17.14.2 Humane Treatment and Practicable Medical Care and Attention. In all 

circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive, 

to the fullest extent practicable and with the least possible delay, the medical care and attention 

required by their condition.179 There shall be no distinction among them founded on any 

grounds other than medical ones.180

17.14.3 Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and 

Dead. Whenever circumstances permit, and particularly after an engagement, all possible

measures shall be taken, without delay, to search for and collect the wounded, sick, and 

shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and 

to search for the dead, prevent their being despoiled, and decently dispose of them.181

The obligations to search for, collect, and take affirmative steps to protect the wounded, 

sick, and shipwrecked are subject to practical limitations; military commanders are to judge what 

is possible, and to what extent they can commit their personnel to these duties.182 

17.14.3.1 Mistreatment and Booby-Trapping of the Dead Prohibited. The 

mistreatment of the dead is prohibited.183 In addition, the dead may not be booby-trapped.184

17.15 PROTECTION OF MEDICAL AND RELIGIOUS PERSONNEL AND MEDICAL TRANSPORTS IN 

NIAC

17.15.1 Protection of Medical and Religious Personnel. Medical and religious personnel 

 178 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

179 Consider AP II art. 7(2) (“In all circumstances they shall be treated humanely and shall receive, to the fullest 

extent practicable and with the least possible delay, the medical care and attention required by their condition.”).

180 Consider AP II art. 7(2) (“There shall be no distinction among them founded on any grounds other than medical 

ones.”).

181 Consider AP II art. 8 (“Whenever circumstances permit, and particularly after an engagement, all possible 

measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them 

against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being 

despoiled, and decently dispose of them.”).

182 Compare § 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the 

Wounded, Sick, and Shipwrecked).

183 For example, Karen Parrish, Panetta Orders Investigation of Video, Vows Accountability, AMERICAN FORCES 

PRESS SERVICE, Jan. 12, 2012 (“Defense Secretary Leon E. Panetta released a statement today strongly condemning 

the actions of a small group of Marines depicted in a video that began circulating online yesterday. The video shows 

four Marines apparently urinating over three enemy corpses in Afghanistan. The secretary’s statement said he has 

seen the footage and finds the behavior depicted in it ‘utterly deplorable.’ ‘I condemn it in the strongest possible 

terms,’ Panetta said. ‘I have ordered the Marine Corps and ISAF commander [Marine Corps] Gen. John Allen to 

immediately and fully investigate the incident. This conduct is entirely inappropriate for members of the United 

States military and does not reflect the standards or values our armed forces are sworn to uphold. Those found to 

have engaged in such conduct will be held accountable to the fullest extent.’”). Compare § 7.7.1.1 (No 

Disrespectful or Degrading Treatment of the Dead).

184 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).
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shall be respected and protected and shall be granted all available help for the performance of 

their duties. They shall not be compelled to carry out tasks that are not compatible with their 

humanitarian mission.185

17.15.1.1 Types of Persons Who Are Considered Medical and Religious 

Personnel in NIAC. Medical and religious personnel include those persons who are exclusively

(e.g., permanently) engaged in those duties.186 For example, persons who intermittently take a 

direct part in hostilities are not considered medical and religious personnel.187

17.15.1.2 Meaning of “Respect and Protection” of Medical and Religious 

Personnel. The respect and protection accorded to medical and religious personnel mean that 

they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging 

their proper functions.188

Medical and religious personnel who are part of armed forces or groups, however, are 

deemed to have accepted the risk of harm due to their deliberate proximity to military 

objectives.

189 Although the presence of such personnel would not serve to exempt nearby 

military objectives from attack due to the risk that such personnel would be incidentally harmed,

feasible precautions must be taken to reduce the risk of harm to such personnel.

190

The respect and protection afforded medical and religious personnel do not immunize 

them from search, or from other necessary security measures, or from capture and detention.191 

AP II and applicable treaties to which the United States is a Party (such as the 1949 Geneva 

Conventions) do not afford medical and religious personnel belonging to non-State armed groups 

retained personnel status if captured.

17.15.2 Protection of Medical Units and Transports. Medical units and transports shall 

be respected and protected at all times and shall not be the object of attack.192 The protection to 

which medical units and transports are entitled shall not cease unless they are used to commit 

hostile acts, outside their humanitarian function. Protection may, however, cease only after a 

warning has been given setting, whenever appropriate, a reasonable time-limit, and after such 

 185 Consider AP II art. 9(1) (“Medical and religious personnel shall be respected and protected and shall be granted 

all available help for the performance of their duties. They shall not be compelled to carry out tasks which are not 

compatible with their humanitarian mission.”).

186 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

187 Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

188 Compare § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

189 Compare § 7.8.2.1 (Incidental Harm Not Prohibited).

190 Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

191 Compare § 7.8.2.2 (Search and Other Security Measures Not Prohibited); § 7.8.2.3 (Capture Not Prohibited).

192 Consider AP II art. 11(1) (“Medical units and transports shall be respected and protected at all times and shall not 

be the object of attack.”).
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warning has remained unheeded.193

17.15.2.1 Types of Units and Vehicles That Are Considered Medical Units and 

Transports. Medical units and transports include those units and vehicles that are exclusively 

(e.g., permanently) engaged in those activities.194 For example, units and transports that 

intermittently are used in hostilities are not considered medical units and transports.

17.15.2.2 Meaning of “Respect and Protection” of Medical Units and Transports. 

The respect and protection accorded to medical units and transports mean that they must not 

knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper 

functions.195

Medical units and transports that are part of armed forces or groups, however, are deemed 

to have accepted the risk of harm due to their deliberate proximity to military objectives.

196 

Although the presence of such medical units and transports would not serve to exempt nearby 

military objectives from attack due to the risk that such medical units and transports would be 

incidentally harmed, feasible precautions must be taken to reduce the risk of harm to such 

medical units and transports.197

The respect and protection afforded medical units and facilities does not immunize them 

from search or capture.

198

17.16 DISPLAY OF THE DISTINCTIVE EMBLEM IN NIAC

Under the direction of the competent authority concerned, the distinctive emblem of the 

red cross, red crescent, or red lion and sun on a white ground shall be displayed by medical and 

religious personnel and medical units, and on medical transports. It shall be respected in all 

circumstances. It shall not be used improperly.199

These rules also apply to the distinctive emblem of the red crystal.200

 193 Consider AP II art. 11(2) (“The protection to which medical units and transports are entitled shall not cease 

unless they are used to commit hostile acts, outside their humanitarian function. Protection may, however, cease 

only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning 

has remained unheeded.”).

194 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

195 Compare § 7.10.1 (Meaning of “Respect and Protection” of Military Medical Units and Facilities).

196 Compare § 7.10.1.1 (Incidental Harm Not Prohibited).

197 Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

198 Compare § 7.10.1.2 (Search Not Prohibited); § 7.10.1.3 (Capture Not Prohibited).

199 Consider AP II art. 12 (“Under the direction of the competent authority concerned, the distinctive emblem of the 

red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel 

and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used 

improperly.”).

200 Refer to § 7.15.1.3 (Red Crystal); § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
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17.16.1 Display of the Emblem Under the Direction of the Competent Authority 

Concerned. The display of the distinctive emblem is under the direction of the competent 

authority concerned, which authority may authorize the removal or obscuring of the distinctive 

emblem for tactical purposes, such as camouflage.201 Similarly, it would be appropriate for the 

distinctive emblem to be removed if it is assessed that enemy forces will fail to respect the 

emblem and seek to attack medical personnel; display of the emblem in such circumstances 

would be deemed not to be feasible.202

17.16.2 Improper Use of the Distinctive Emblem. Improper use of the distinctive 

emblem includes use: (1) while engaging in attacks; (2) in order to shield, favor, or protect one’s 

own military operations; or (3) to impede enemy military operations.203 

17.17 DETENTION IN NIAC

17.17.1 State Authority to Detain. Law of war treaties have not limited the scope of 

whom a State may detain for reasons related to a non-international armed conflict, but have 

prescribed humane treatment for such persons.204 A State’s authority to conduct detention 

operations has often been understood as incident to the legal basis of the State to engage in 

operations against the non-State armed group.205

The precise legal requirements for a detention regime established by a State in noninternational armed conflict would likely depend a great deal on its domestic law.

17.17.1.1 Non-Punitive Detention in Non-International Armed Conflict. Nonpunitive detention may be conducted on a variety of legal theories under international law.206 

For example, although enemy non-State armed groups would not be entitled to POW status, a 

State may detain persons belonging to enemy armed groups, by analogy to the detention of 

POWs in international armed conflict. Similarly, although persons would not be protected 

persons under the GC, a State may detain persons for security reasons, by analogy to the 

 201 Compare § 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).

202 Refer to § 5.2.3.2 (What Precautions Are Feasible).

203 Refer to § 5.24 (Improper Use of Certain Signs).

204 AP II art. 5(1) (“In addition to the provisions of Article 4, the following provisions shall be respected as a 

minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are 

interned or detained:”).

205 Refer to § 8.1.3.1 (Detention Authority).

206 For example, FRANK KITSON, GANGS AND COUNTER-GANGS 45 (1960) (“There was one other legal means of 

getting at the Mau Mau. This was for the Police to submit a dossier giving a full list of all that was known against a 

person to the Governor, who could then sign an order for detention during the Emergency providing he was satisfied 

that such action was necessary in the interests of maintaining public order. This was a good idea as far as it went but 

the Governor could only sign a comparatively limited number. Certainly the system could not take care of all the 

committee members of all the committees though it was satisfactory for the most senior ones. It was an advance in 

another way, in that it all but recognized the status of prisoner of war by saying to a man ‘You are not a criminal but 

you are on the wrong side. You must be restrained until this trouble is over.’ It was of course contrary to the 

principles of British justice but it was merciful. In its extended form later in the Emergency it saved thousands of 

loyalist lives by reducing the number of Mau Mau, and probably saved many Mau Mau lives by locking up people 

who would otherwise have joined the gangs and been killed by the Security Forces.”).
1064

detention of protected persons in international armed conflict or occupation. Other legal 

rationales for the detention of persons in non-international armed conflict also may be available.

17.17.1.2 Punitive Detention in Non-International Armed Conflict. During noninternational armed conflict, a State could also detain persons pursuant to its criminal law. For 

example, persons who support enemy non-State armed groups could be sentenced to a variety of 

offenses (e.g., murder, criminal conspiracy, treason or other offenses against the State, material 

support to terrorism or terrorist organizations).

17.17.2 Detention by Non-State Armed Groups. Non-State armed groups typically 

would lack domestic legal authority to conduct detention operations. Their actions may be 

subject to prosecution under domestic statutes making punishable kidnapping, hostage taking, 

false imprisonment, interference with State officials, etc. Nonetheless, detention during noninternational armed conflict by non-State armed groups is not prohibited by international law. In 

any case, non-State armed groups that conduct detention operations must provide humane 

treatment to detainees.

17.17.3 Humane Treatment and Other Applicable Requirements. All persons (including 

those belonging to the State or those belonging to non-State armed groups) who are detained by 

the adverse party are entitled to the protections of Common Article 3 of the 1949 Geneva 

Conventions, including humane treatment.

207 Although detainees are afforded humane 

treatment, they do not receive POW status.208

Chapter VIII addresses the baseline rules for the humane treatment of detainees that 

apply to all U.S. military operations, including those in non-international armed conflict.209

17.18 NON-INTERVENTION AND NEUTRAL DUTIES IN NIAC

17.18.1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by NonState Armed Groups Against Other States. Under international law, principles of friendly 

relations and non-intervention require States to refrain from supporting non-State armed groups 

in hostilities against other States.210

 207 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

208 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 646 (AP II art. 5, ¶2.3) (“It must be emphasized in this 

connection that Protocol II does not confer a special status on members of the armed forces of either side captured 

by the adverse party similar to the status of a prisoner of war in an international armed conflict. The rebel does not 

enjoy any privilege with regard to acts committed during the rebellion.”); ICRC AP COMMENTARY 1386 (¶4570) 

(“Protocol II, following the example of common Article 3, does not grant a special status to members of the armed 

forces or armed groups who have fallen into enemy hands. They are not legally prisoners of war entitled to special 

protection; this is why it is so important that the rules laid down in this article [5 of AP II] establish minimum 

guarantees.”).

209 Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

210 See, e.g., Declaration on Principles of International Law concerning Friendly Relations and Co-operation 

among States in accordance with the Charter of the United Nations, annex to U.N. GENERAL ASSEMBLY 

RESOLUTION 2625 (XXV), U.N. Doc. A/RES/2625(XXV) (1970) (“Every State has the duty to refrain from 

organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion 

into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or 
1065

These are closely analogous to the duties that neutral States have under the law of 

neutrality to refrain from supporting military operations against belligerents.211

In particular, States are required to take all reasonable steps to ensure that their territory is 

not used by non-State armed groups for purposes of armed activities—including planning, 

threatening, perpetrating, or providing material support for armed attacks—against other States 

and their interests.212 The failure to fulfill this duty may have consequences in regard to whether 

other States that are threatened by these armed activities must seek the consent of that State 

before taking action in self-defense in that State’s territory.

213

Violations of law of war treaties applicable to non-international armed conflict by a State

generally have not been understood to provide an independent basis in international law for a 

non-belligerent State to intervene against the violating State in that conflict.214

17.18.2 Duty of Belligerent States to Respect the Sovereignty of Other States. States that 

are engaged in hostilities against non-State armed groups must respect the sovereignty of other 

States.215 In general, States must obtain the consent of a territorial State before conducting 

 

participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its 

territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a 

threat or use of force.”).

211 See, e.g., Christopher Greenwood, International law and the ‘war on terrorism,’ 78 INTERNATIONAL AFFAIRS

301, 313 (2002) (“By allowing Al-Qa’ida to operate from the territory which it controlled, the Taliban—and thus 

Afghanistan—violated the general duty of a state under international law not to allow its territory to be used as a 

base for attacks on other states. ... At the very least, its position was analogous to that of a neutral state which 

allows a belligerent to mount military operations from its territory: even though it is not responsible for those 

operations, it exposes itself to the risk of lawful military action to put a stop to them. Similarly, where a state allows 

terrorist organizations to mount concerted operations against other states from its territory and refuses to take the 

action required by international law to put a stop to such operations, the victims of those operations are entitled to 

take action against those terrorists.”); H. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign 

States, 22 AJIL 105, 127 (1928) (“The nearest approach to what is believed to be the true juridical construction of 

the state’s duty to prevent organized hostile expeditions from proceeding in times of peace against a friendly state 

will be found in the law of neutrality. ... The two situations being closely analogous, it is only natural that they are 

regulated in Great Britain and in the United States in the same legal enactments. The law of hostile expeditions is 

nothing else than the law of neutrality in relation to an actual or impending civil war.”).

212 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or 

Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“9. States are required to take all reasonable steps 

to ensure that their territory is not used by nonstate actors for purposes of armed activities—including planning, 

threatening, perpetrating, or providing material support for armed attacks—against other states and their interests.”).

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

214 See, e.g., CCW AMENDED art. 1(5) (“Nothing in this Convention or its annexed Protocols shall be invoked as a 

justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or 

external affairs of the High Contracting Party in the territory of which that conflict occurs.”). Consider AP II art. 

2(2) (“Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any 

reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the 

territory of which that conflict occurs.”). Refer to § 1.11.4.4 (Humanitarian Intervention).

215 See, e.g., Jeh Charles Johnson, General Counsel, Department of Defense, National Security Law, Lawyers, and 

Lawyering in the Obama Administration, Feb. 22, 2012, 2012 DIGEST OF UNITED STATES PRACTICE IN 

INTERNATIONAL LAW 575, 577 (“Third: there is nothing in the wording of the 2001 AUMF or its legislative history 

that restricts this statutory authority to the ‘hot’ battlefields of Afghanistan. ... The legal point is important because, 
1066

military operations against a non-State armed group in that State’s territory.216

The consent of the territorial State, however, is not necessary when the U.N. Security 

Council has authorized the military operations.

217

In addition, the United States has expressed the view that consent is not required when 

the territorial State is unwilling or unable to prevent its territory from being used by non-State 

armed groups as a base for launching attacks.

218 Other States have also expressed this view.219

 in fact, over the last 10 years al Qaeda has not only become more decentralized, it has also, for the most part, 

migrated away from Afghanistan to other places where it can find safe haven. However, this legal conclusion too 

has its limits. It should not be interpreted to mean that we believe we are in any ‘Global War on Terror,’ or that we 

can use military force whenever we want, wherever we want. International legal principles, including respect for a 

state’s sovereignty and the laws of war, impose important limits on our ability to act unilaterally, and on the way in 

which we can use force in foreign territories.”); Harold Hongju Koh, Legal Adviser, Department of State, Address at 

the Annual Meeting of the American Society of International Law: The Obama Administration and International 

Law Mar. 25, 2010, 2010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717-18 (“As recent events 

have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. 

Thus, in this ongoing armed conflict, the United States has the authority under international law, and the 

responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such 

as high-level al-Qaeda leaders who are planning attacks. ... Of course, whether a particular individual will be 

targeted in a particular location will depend upon considerations specific to each case, including those related to the 

imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states 

to suppress the threat the target poses.”).

216 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or 

Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“Subject to the following paragraphs, a state may 

not take armed action in self-defense against a nonstate actor in the territory or within the jurisdiction of another 

state (‘the third state’) without the consent of that state. The requirement for consent does not operate in 

circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed 

force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”).

217 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or 

Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“The requirement for consent does not operate in 

circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed 

force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”). Refer to

§ 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the Charter of the 

United Nations).

218 See, e.g., Samantha J. Power, Letter dated 23 September 2014 from the Permanent Representative of the United 

States of America to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014) 

(“ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the 

United States and our partners in the region and beyond. States must be able to defend themselves, in accordance 

with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the 

United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or 

unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not 

confront these safe havens effectively itself.”); John B. Bellinger, III, Legal Adviser, Department of State, Legal 

Issues in the War on Terrorism, Oct. 31, 2006, 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 

1104, 1109-10 (“Let me be very clear here: I am not suggesting that, because we remain in a state of armed conflict 

with al Qaida, the United States is free to use military force against al Qaida in any state where an al Qaida terrorist 

may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, 

though, a state must be responsible for preventing terrorists from using its territory as a base for launching attacks. 

And, as a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use 

military force in self-defense to address that threat.”); Abraham Sofaer, The Sixth Annual Waldemar A. Solf Lecture 

in International Law: Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 108 (1989) 
1067

It may be unnecessary for a belligerent State to seek consent when there is a strong, 

reasonable, and objective basis for concluding that the seeking of consent would be likely to 

undermine materially the effectiveness of the action against the non-State armed group (e.g., 

reasons of disclosure, delay, incapacity to act) or would increase the risk of armed attack, 

vulnerability to future attacks, or other development that would give rise to an independent 

imperative to act in self-defense.220

17.18.3 States’ Support to Other States in Hostilities Against Non-State Armed Groups. 

 (“The United States in fact supported the legality of a nation attacking a terrorist base from which attack on its 

citizens are being launched, if the host country is either unwilling or unable to stop the terrorists from using its 

territory for that purpose.”).

219 For example, Michael Grant, Letter dated 31 March 2015 from the Chargé d’affaires a.i. of the Permanent 

Mission of Canada to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/221 

(Mar. 31, 2015) (“ISIL also continues to pose a threat not only to Iraq, but also to Canada and Canadians, as well as 

to other countries in the region and beyond. In accordance with the inherent rights of individual and collective selfdefence reflected in Article 51 of the United Nations Charter, States must be able to act in self-defence when the 

government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its 

territory.”); Russian Federation President V.V. Putin, Statement of Sept. 11, 2002, annexed to Sergey Lavrov, Letter 

dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations 

addressed to the Secretary-General, U.N. Doc. S/2002/1012 (Sept. 11, 2002) (“The Russian Federation firmly 

adheres to its international obligations and respects the sovereignty and integrity of other States, but it demands the 

same attitude towards itself. If the Georgian leadership is unable to establish a security zone in the area of the 

Georgian-Russian border, continues to ignore United Nations Security Council resolution 1373 (2001) of 28 

September 2001, and does not put an end to the bandit sorties and attacks on adjoining areas in the Russian 

Federation, we reserve the right to act in accordance with Article 51 of the Charter of the United Nations, which lays 

down every Member State’s inalienable right of individual or collective self-defence. ... None of this will be 

necessary, no measures or special operations will be needed if the Georgian leadership actually controls its own 

territory, carries out international obligations in combating international terrorism and prevents possible attacks by 

international terrorists from its territory against the territory of the Russian Federation.”); Hayati Güven, Letter 

Dated 24 July 1995 from the Charge D’affaires A.I. of the Permanent Mission of Turkey to the United Nations 

Addressed to the President of the Security Council, U.N. Doc. S/1995/605 (Jul. 24, 1995) (“As Iraq has not been 

able to exercise its authority over the northern part of its country since 1991 for reasons well known, Turkey cannot 

ask the Government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for the 

staging of terrorist acts against Turkey. Under these circumstances, Turkey’s resorting to legitimate measures which 

are imperative to its own security cannot be regarded as a violation of Iraq’s sovereignty. No country could be 

expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a 

terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to 

such attacks. The recent operations of limited time and scope were carried out within this framework, as explained 

to the world public.”); Statement of Mr. Blum, representative of Israel, in U.N. Doc. S/PV.2292 ¶¶54-56 (“Members 

of the [Security] Council need scarcely be reminded that under international law, if a State is unwilling or unable to 

prevent the use of its territory to attack another State, that latter state is entitled to take all necessary measures in its 

own defence. The Government of Israel is in fact exercising the inherent right of self-defence enjoyed by every 

sovereign State, a right also preserved under Article 51 of the Charter of the United Nations. Israel’s response to 

PLO terror is what any self-respecting sovereign State would do in similar circumstances. I must stress that Israel’s 

actions are specifically directed against concentrations of PLO terrorists in Lebanon.”).

220 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or 

Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“In such circumstances, in addition to the preceding 

requirements, there must also be a strong, reasonable, and objective basis for concluding that the seeking of consent 

would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of 

disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to future 

attacks, or other development that would give rise to an independent imperative to act in self-defense.”).
1068

International law does not prohibit States from assisting other States in their armed conflicts 

against non-State armed groups. To the extent those States intend to conduct hostilities or 

actually do so, they may incur obligations under the law of war.221 For example, a State that is 

conducting detention operations would have obligations to treat detainees (e.g., persons 

belonging to non-State armed groups) humanely regardless of whether it considers itself a party 

to the non-international armed conflict.

17.18.4 Liability of Private Individuals for Supporting Non-State Armed Groups. Private 

individuals who support non-State armed groups that are preparing for, or engaged in, hostilities 

against a State may be subject to prosecution. Such conduct may be criminalized under a variety 

of domestic laws relating to treason, hostile expeditions against other States, material support to 

terrorism, or piracy.222

The State that is threatened by such activities may prosecute such individuals for treason

or other offenses against the State.

States in which such conduct occurs may seek to prosecute such conduct for a variety of 

reasons, including its duties under international law to refrain from materially supporting

hostilities against another State, and to repress terrorism or piracy.

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

222 Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).
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XVIII – Implementation and Enforcement of the Law of War

Chapter Contents

18.1 Introduction

18.2 Prudential Reasons Supporting the Implementation and Enforcement of the 

Law of War

18.3 Duties of Individual Members of the Armed Forces

18.4 Commanders’ Duty to Implement and Enforce the Law of War

18.5 Role of Judge Advocates and Legal Advisers

18.6 Dissemination, Study, and Other Measures to Facilitate Understanding of 

Duties Under the Law of War

18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law 

of War

18.8 Considering Law of War Obligations in the Planning of Military Operations

18.9 States’ Obligations With Respect to Violations of the Law of War

18.10 Methods for Responding to Violations of the Law of War by the Enemy

18.11 Protests and Demands to the Offending Party

18.12 U.N. Security Council and Enforcement of the Law of War

18.13 National Investigations of Alleged Violations of the Law of War

18.14 International Mechanisms to Investigate Alleged Law of War Violations

18.15 Protecting Power and Other Neutral Intermediaries

18.16 Compensation for Violations of the Law of War

18.17 Retorsion

18.18 Reprisals

18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law 

of War

18.20 Prosecution in International and Hybrid Courts

18.21 Limits on the Punishment of Individuals Under the Law of War

18.22 Principles of Individual Criminal Responsibility for Crimes Under 

International Law

18.23 Theories of Individual Criminal Liability

18.1 INTRODUCTION

This Chapter addresses the implementation and enforcement of the law of war. It 

discusses activities that are undertaken in order to prevent violations of the law of war (such as 

training and the promulgation of policies, regulations, and orders). It discusses activities to 

respond to alleged violations, such as reporting, investigation, and corrective or punitive 

measures.

18.1.1 DoD Policy on Implementing and Enforcing the Law of War. DoD policy has 

addressed the policies and responsibilities for ensuring DoD compliance with the law of war 
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obligations of the United States.1

 It has been DoD policy that:

• Members of the DoD Components comply with the law of war during all armed conflicts, 

however such conflicts are characterized, and in all other military operations;2

• The law of war obligations of the United States are observed and enforced by the DoD 

Components and DoD contractors assigned to, or accompanying, deployed armed 

forces;3

• An effective program to prevent violations of the law of war is implemented by the DoD 

Components.

4

These policies follow a longer tradition of compliance with the law of war by U.S. armed 

forces.5

 1 See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶1 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“This Directive: 1.1. Reissues Reference (a) to update the policies and responsibilities ensuring DoD 

compliance with the law of war obligations of the United States.”); DOD DIRECTIVE 5100.77, DoD Program for the 

Implementation of the Law of War, ¶I (Nov. 5, 1974) (“This Directive provides policy guidance and assigns 

responsibilities within the Department of Defense for a program to insure implementation of the law of war.”).

2 See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.1 (May 9, 2006, Certified Current as of Feb. 

22, 2011) (“Members of the DoD Components comply with the law of war during all armed conflicts, however such 

conflicts are characterized, and in all other military operations.”); DOD DIRECTIVE 5100.77, DoD Law of War 

Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of their 

DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, 

and with the principles and spirit of the law of war during all other operations.”); DOD DIRECTIVE 5100.77, DoD 

Law of War Program, ¶E(1)(a) (Jul. 10, 1979) (“The Armed Forces of the United States shall comply with the law 

of war in the conduct of military operations and related activities in armed conflict, however such conflicts are 

characterized.”); DOD DIRECTIVE 5100.77, DoD Program for the Implementation of the Law of War, ¶V(A) (Nov. 5, 

1974) (“The Armed Forces of the United States will comply with the law of war in the conduct of military 

operations and related activities in armed conflict however such conflicts are characterized.”).

3 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.2 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“The law of war obligations of the United States are observed and enforced by the DoD Components and DoD 

contractors assigned to or accompanying deployed Armed Forces.”).

4 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.3 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“An effective program to prevent violations of the law of war is implemented by the DoD Components.”).

5 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶7 (“In consequence, treaties relating to the law of war have a force 

equal to that of laws enacted by the Congress. Their provisions must be observed by both military and civilian 

personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the 

Constitution and statutes enacted in pursuance thereof. ... The unwritten or customary law of war is binding upon all 

nations. It will be strictly observed by United States forces, subject only to such exceptions as shall have been 

directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy (see par. 497).”); 

U.S. Navy Regulations Article 0505 (1948) (“Observance of International Law. 1. In the event of war between 

nations with which the United States is at peace, a commander shall observe, and require his command to observe, 

the principles of international law. He shall make every effort consistent with those principles to preserve and 

protect the lives and property of citizens of the United States wherever situated. 2. When the United States is at war, 

he shall observe, and require his command to observe, the principles of international law and the rules of humane 

warfare. He shall respect the rights of neutrals as prescribed by international law and by pertinent provisions of 

treaties, and shall exact a like observance from neutrals.”).
1071

18.1.2 National Obligations to Implement and Enforce the Law of War. States, as Parties 

to treaties, have certain obligations to implement and enforce those treaties. These obligations 

may be written as a general obligation to undertake to respect and to ensure respect for the treaty. 

In addition, treaties may provide for more specific obligations to help implement and 

enforce their provisions, such as obligations with respect to violations of the treaty or 

dissemination of the text of the treaty.

Different treaties may have different mechanisms to implement and to ensure compliance 

with that treaty.

18.1.2.1 General Treaty Obligations to Take Appropriate Actions to Implement 

and Enforce the Treaty – 1949 Geneva Conventions. Parties to the 1949 Geneva Conventions 

undertake to respect and ensure respect for the conventions in all circumstances.6 This is a 

general obligation to take the measures that the State deems appropriate in order to fulfill its 

obligations under the conventions. Although this provision does not reflect an obligation to 

ensure implementation of the conventions by other States or parties to a conflict, the United 

States, as a matter of policy, often seeks to promote adherence to the law of war by others.7

18.1.2.2 General Treaty Obligations to Take Appropriate Actions to Implement 

and Enforce the Treaty – AP III. Parties to AP III undertake to respect and to ensure respect for 

AP III in all circumstances.8

18.1.2.3 General Treaty Obligations to Take Appropriate Actions to Implement 

and Enforce the Treaty – CCW Amended Mines Protocol. Parties to the CCW Amended Mines 

Protocol shall take all appropriate steps, including legislative and other measures, to prevent and 

suppress violations of that Protocol by persons or on territory under its jurisdiction or control.9

18.1.2.4 General Treaty Obligations to Take Appropriate Actions to Implement 

 6 GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention 

in all circumstances.”); GWS-SEA art. 1 (same); GPW art. 1 (same); GC art. 1 (same).

7 Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International Law: 

International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“Some have argued that the 

obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires 

us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged in 

armed conflict. Although we do not share this expansive interpretation of Common Article 1, as a matter of policy, 

we always seek to promote adherence to the law of armed conflict generally and encourage other States to do the 

same. As a matter of international law, we would look to the law of State responsibility and our partners’ 

compliance with the law of armed conflict in assessing the lawfulness of our assistance to, and joint operations with, 

those military partners.”).

8 AP III art. 1(1) (“The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all 

circumstances.”).

9 CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps, 

including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on 

territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include 

appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed 

conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring 

such persons to justice.”).
1072

and Enforce the Treaty – Child Soldiers Protocol. Each Party to the Child Soldiers Protocol 

shall take all necessary legal, administrative, and other measures to ensure the effective 

implementation and enforcement of the provisions of this Protocol within its jurisdiction.10

18.1.3 International or Multi-National Actions to Implement and Enforce the Law of 

War. States sometimes take actions on the international or multinational level to implement and 

enforce the law of war.

For example, NATO Standardization Agreements might specify common procedures to 

implement obligations under the 1949 Geneva Conventions for the treatment of POWs. States 

may investigate alleged violations of the law of war through international commissions of 

inquiry.11 As another example, States may establish international criminal tribunals to try enemy 

belligerents.12

18.1.4 Law of War Obligations and International Organizations. International 

organizations, such as the United Nations or NATO, are not Parties to law of war treaties, such 

as the 1949 Geneva Conventions. Thus, these organizations do not have obligations under those 

treaty instruments. However, the member States of international organizations are Parties to 

these treaties, and as a general matter, a State’s obligations under law of war treaties would not 

be rendered inapplicable simply because its forces are part of an international or multinational 

force or are acting through an international organization.

18.1.5 Application of Implementation and Enforcement Measures Outside the Context of 

International Armed Conflict. Certain treaty obligations with respect to the implementation and 

enforcement of the law of war may not apply outside the context of international armed conflict. 

Nonetheless, many of the domestic law, policies, and regulations that are used to 

implement and enforce the law of war are applicable outside the context of international armed 

conflict. Thus, for example, many of the provisions of the Uniform Code of Military Justice may 

be used to punish crimes that have been committed in the context of a non-international armed 

conflict or a military operation other than war.

18.2 PRUDENTIAL REASONS SUPPORTING THE IMPLEMENTATION AND ENFORCEMENT OF THE LAW 

OF WAR

The implementation and enforcement of the law of war have been supported by strong 

practical considerations. Compliance with the law of war is not only legally required but also in 

 10 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 

art. 6(1), May 25, 2000, 2173 UNTS 222, 238 (“Each State Party shall take all necessary legal, administrative and 

other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its 

jurisdiction.”).

11 Refer to § 18.14 (International Mechanisms to Investigate Alleged Law of War Violations).

12 Refer to § 18.20.1 (Post-World War II International Military Tribunals).
1073

the strong self-interest of everyone subject to the law of war.

13

18.2.1 Reinforcing Military Effectiveness. Conducting military operations in accordance 

with the law of war is not fighting with one hand tied behind one’s back. Rather, law of war 

principles and rules are consistent with military doctrines for a profession of arms that are the 

basis for effective combat operations.14

For example, various military doctrines, such as accuracy of targeting, concentration of 

effort, maximization of military advantage, conservation of resources, avoidance of excessive 

collateral damage, and economy of force are not only fully consistent with compliance with the 

law of war, but also reinforce its observance. Use of indiscriminate and excessive force is costly, 

highly inefficient, and a waste of scarce resources.15

Similarly, the necessity of discipline for an effective armed force reinforces the 

implementation and enforcement of the law of war. An undisciplined force is more likely to 

commit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilian 

population.16

18.2.2 Encouraging Reciprocal Adherence by the Adversary. The requirement to comply 

with many law of war rules (such as the obligation to treat detainees humanely) does not depend 

on whether the enemy complies with that rule.17

Nevertheless, reciprocity may be a critical factor in the actual observance of the law of 

war. Adherence to law of war rules in conducting military operations can encourage an

adversary also to comply with those law of war rules.18 For example, humane treatment of 

enemy persons detained by U.S. forces can encourage enemy forces to treat detained U.S. 

 13 1976 AIR FORCE PAMPHLET 110-31 ¶1-6 (“The law of armed conflict developed from an amalgam of social, 

political and military considerations. The primary basis for the law, and the principal reason for its respect, is that it 

generally serves the self-interest of everyone subject to its commands.”).

14 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF 

HUMANITARIAN LAW IN ARMED CONFLICTS 33 (¶132) (1999) (“It should not be assumed, however, that 

humanitarian law and military requirements will necessarily be opposed to one another. On the contrary, most rules 

of humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforce 

discipline and good order within the forces concerned.”).

15 1976 AIR FORCE PAMPHLET 110-31 ¶1-6b (“More importantly, various military doctrines, such as accuracy of 

targeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance of 

excessive collateral damage, and economy of force are not only fully consistent with compliance with the law of 

armed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficient—and to 

be avoided for those reasons—it may also be a waste of scarce resources.”).

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

17 Refer to § 3.6 (Reciprocity and Law of War Rules).

18 1976 AIR FORCE PAMPHLET 110-31 ¶10-1b (“The most important relevant treaties, the 1949 Geneva Conventions 

for the Protection of War Victims, are not formally conditioned on reciprocity. ... Yet reciprocity is an implied 

condition in other rules and obligations including generally the law of armed conflict. It is moreover a critical factor 

in actual observance of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine of 

reprisals.”).
1074

persons humanely.19 Conversely, the maltreatment of detained personnel by U.S. forces may 

have a dramatic and negative effect on how U.S. personnel in the hands of the enemy are treated 

and the degree to which the law of war is respected generally.20

18.2.3 Maintaining Public Support and Political Legitimacy. The implementation and 

enforcement of the law of war are also supported by the fact that violations of the law of war are 

counterproductive to the political goals sought to be achieved by military operations.21 For 

example, violations of the law of war in counter-insurgency operations may diminish the support 

of the local population. Violations of the law of war may also diminish the support of the 

populace in democratic States, including the United States and other States that would otherwise 

support or participate in coalition operations. Violations of the law of war committed by one 

side may encourage third parties to support the opposing side.

18.3 DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES

Each member of the armed services has a duty to: (1) comply with the law of war in 

good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of 

war. 

18.3.1 Comply With the Law of War in Good Faith. Each member of the armed forces 

has a duty to comply with the law of war in good faith.22 In practice, the obligation of individual 

service members to comply with the law of war in good faith is met when service members: (1) 

perform their duties as they have been trained and directed; and (2) apply the training on the law 

of war that they have received.23

The duty of each individual service member to comply with the law of war in good faith 

rests within a broader framework of law of war implementation by the U.S. armed forces. 

18.3.1.1 Implementation of International Obligations by Persons With the 

Authority to Make the Necessary Decisions and Judgments Required by International Law. As a 

general matter, the persons within a party to a conflict who are responsible for implementing an 

obligation are those persons with the authority to make the necessary decisions and judgments

required by that international obligation. It is not the case that every individual who belongs to a 

party to the conflict is responsible for implementing every obligation held by that party.

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

20 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1274 (“It is 

almost inevitable that the murder of innocent members of the population, including the relatives and friends of the 

franc-tireurs, would generate a hatred that was bound to express itself in counterreprisals and acts of atrocity.”).

21 1976 AIR FORCE PAMPHLET 110-31 ¶1-6a (“However, the application of military force has never been an end in 

itself. In many respects, the overall political context has increased in importance in recent years although that 

political context has always influenced the means of destruction or tactics used in warfare. Violations of the law of 

armed conflict have been recognized as counterproductive to the political goals sought to be achieved. For example, 

they may arouse public opinion and induce neutrals to become involved in the conflict on the adversary’s side, such 

as the entry of the United States into World War I.”).

22 Refer to § 1.10.2 (Force of the Law of War Under U.S. Domestic Law).

23 Refer to § 18.6.2 (Special Instruction or Training).
1075

For example, certain law of war obligations only apply to commanders or to specialized 

units, such as units providing medical care, conducting detention operations, or engaging in the 

protection of cultural property. As a case in point, although the specific responsibilities that 

individual combatants have to implement the principle of proportionality will depend on their 

role and assigned military duties in planning or conducting an attack, commanders are 

responsible for making the decisions and judgments required by the principle of proportionality 

in conducting attacks.

24

18.3.1.2 Practical Ways in Which the Requirement to Comply With the Law of 

War in Good Faith is Met by Individual Service Members. Individual service members are not 

expected to be experts in the law of war. The burden on individual members of the armed forces 

to know the relevant requirements of the law of war is addressed in practice through the 

following ways. 

First, service members should receive training commensurate with their duties on the 

relevant requirements of the law of war.

Second, law of war requirements have also been incorporated into domestic law, policy, 

regulations, and orders, which often are reviewed by counsel for consistency with the law of 

war.

25 Moreover, in most cases, the requirements and standards in applicable policies, 

regulations, and orders will often impose higher standards than the requirements of the law of 

war.26

Third, when appropriate, service members should ask questions through appropriate 

channels and consult with the command legal adviser on issues relating to the law of war. 

18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations. 

Members of the armed forces must refuse to comply with clearly illegal orders to commit law of 

war violations. In addition, orders should not be construed to authorize implicitly violations of 

law of war.

18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The 

requirement to refuse to comply with orders to commit law of war violations applies to orders to 

perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. 

For example, orders to fire upon the shipwrecked would be clearly illegal.27 Similarly, orders to 

 24 Refer to § 5.10.2 (Responsibility of Commanders for Implementing the Principle of Proportionality in Conducting 

Attacks).

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

26 Refer to § 18.7.2.3 (Setting Higher Standards as a Matter of Policy).

27 Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second Criminal 

Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (“It is 

certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of 

their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an 

order is universally known to everybody, including also the accused, to be without any doubt whatever against the 

law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present 

instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else 

but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter has 
1076

kill defenseless persons who have submitted to and are under effective physical control would 

also be clearly illegal.28 On the other hand, the duty not to comply with orders that are clearly 

illegal would be limited in its application when the subordinate is not competent to evaluate 

whether the rule has been violated.29

Subordinates are not required to screen the orders of superiors for questionable points of 

legality, and may, absent specific knowledge to the contrary, presume that orders have been 

lawfully issued.30

18.3.2.2 Commands and Orders Should Not Be Understood as Implicitly 

Authorizing Violations of the Law of War. Commands and orders should not be understood as 

implicitly authorizing violations of the law of war where other interpretations are reasonably 

available.31

 strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case 

here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They 

could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out 

a breach of the law. They should, therefore, have refused to obey.”).

28 United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (“In the stress of combat, a member of the 

armed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if 

he guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreement 

as to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that even 

in war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.”).

29 Refer to § 5.10.2.3 (Duty Not to Comply With Clearly Illegal Orders and the Principle of Proportionality).

30 United States v. von Leeb, et al. (The High Command Case), XI TRIAL OF WAR CRIMINALS BEFORE THE NMT

510-11 (“Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are 

issued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it is 

certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable 

points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state 

which he serves and which are issued to him are in conformity with international law. ... He has the right to 

presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly 

determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to 

disputable legal questions.”); WINTHROP, MILITARY LAW & PRECEDENTS 296-97 (“But for the inferior to assume to 

determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, 

amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where 

the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has 

proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of 

obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of 

no rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rare 

occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in 

obeying it can scarcely fail to be held justified by a military court ... .”).

31 See Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson Plan—

Second Hour, ¶5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva Conventions 

of 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (“You should not presume that an order is 

criminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol we 

capture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning he 

tells you ‘get rid of that man.’ That order is not clear. The patrol leader undoubtedly means to take the man to the 

Detainee Collection Point. ... Rather than presume that an unclear order directs you to commit a crime, ask your 

superior for a clarification of the order. Above all, remember that if you are the leader, make your order clear and 
1077

For example, if a commander issues an order to attack a town, one should assume that the 

order directs attacks on military objectives located in that area.32 Similarly, speeches by 

commanders before combat operations to rally members of their command should not be 

understood to authorize implicitly law of war violations against the enemy.33

18.4 COMMANDERS’ DUTY TO IMPLEMENT AND ENFORCE THE LAW OF WAR

Military commanders have a duty to take appropriate measures as are within their power 

to control the forces under their command for the prevention of violations of the law of war.34 

For example, commanders have obligations to take appropriate measures to prevent pillage and 

 

understandable. Don’t put your subordinates in the position where they may think you are giving a criminal 

order.”).

32 For example, Prosecutor v. Gotovina and Markač, ICTY Appellate Chamber, IT-06-09-A, Judgment, ¶77 (Nov. 

16, 2012) (“More specifically, the Trial Chamber relied on the Impact Analysis to discount Witness Rajčić’s 

assertion that the 2 August Order called for shelling only lawful military targets. In addition, neither Witness 

Konings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction to 

commence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order was 

relatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Order 

could not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.”).

33 For example, L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 131-32 (1976) (“The 

controversy arose over Patton’s prepared remarks, which included these statements: ‘The fact we are operating in 

enemy country does not permit us to forget our American tradition of respect for private property, non-combatants, 

and women. ...Attack rapidly, ruthlessly, viciously and without rest, and kill even civilians who have the stupidity to 

fight us.’ Several days after the operation began, during which time the fighting was extremely fierce, a Captain 

Compton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearing 

civilian clothes, and had them executed by machine gun. At about the same time and in the same general location, a 

Sergeant West (of another company) shot and killed thirty-six Germans whom he was escorting to the prisoner-ofwar cage in the rear. When General Patton learned of these incidents, he ordered both men court-martialed on 

charges of premeditated murder. At their trials, the two men asserted as a defence the orders issued by General 

Patton on June 27, 1943 in his preparatory speech. ... The defence’s assertions prompted a subsequent inquiry into 

the speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speech 

and delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, were 

convicted as charged.”) (first ellipsis in original).

34 See In re Yamashita, 327 U.S. 1, 16 (1946) (“The question, then, is whether the law of war imposes on an army 

commander a duty to take such appropriate measures as are within his power to control the troops under his 

command for the prevention of the specified acts which are violations of the law of war and which are likely to 

attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal 

responsibility for his failure to take such measures when violations result. ... These provisions [of the Hague IV 

Reg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military 

governor of the Philippines as well as commander of the Japanese forces, an affirmative duty to take such measures 

as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian 

population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own 

military tribunals.”); Elihu Root, Secretary of War, Memorandum Transmitting the Record and Proceedings of the 

Trial of Brigadier General Jacob H. Smith, Jul. 12, 1902, reprinted in H.C. Corbin, Adjutant General, Major 

General, U.S. Army, General Orders, No. 80, 2, 3 Jul. 16, 1902, GENERAL ORDERS AND CIRCULARS OF THE 

ADJUTANT GENERAL’S OFFICE, 1902 (1903) (“It is the duty of a general officer whose age and experience have 

brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the 

application of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part and 

supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for 

this he has been justly convicted.”).
1078

to protect the wounded, sick, and shipwrecked within their control.35

18.4.1 Background on Commander’s Duties to Implement and Enforce the Law of War. 

The law of war presupposes that its violation is to be avoided through the control of the 

operations of war by commanders who are to some extent responsible for their subordinates.36

One of the requirements for armed forces to receive the privileges of combatant status is that 

they operate under a responsible command.37 In addition, law of war treaties have specified that 

commanders must take appropriate measures to ensure that the provisions of those treaties are 

observed.38

18.4.2 Discipline of Subordinates. In carrying out their duties to implement and enforce 

the law of war, commanders may use disciplinary or penal measures.39 Under international law, 

commanders have discretion about how to implement and enforce their law of war obligations; 

there is no absolute or automatic requirement under international law to punish particular 

offenders within their armed forces in a specific way.40

18.4.3 Duty to Investigate Reports of Alleged Law of War Violations. Commanders 

have a duty to investigate reports of alleged law of war violations committed by persons under 

 35 Refer to § 5.17.4 (Pillage Prohibited); § 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick, 

Shipwrecked, and Dead).

36 In re Yamashita, 327 U.S. 1, 15 (1946) (“It is evident that the conduct of military operations by troops whose 

excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations 

which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war 

from brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to take 

reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided 

through the control of the operations of war by commanders who are to some extent responsible for their 

subordinates.”). Consider AP I art. 87(1) (“The High Contracting Parties and the Parties to the conflict shall require 

military commanders, with respect to members of the armed forces under their command and other persons under 

their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the 

[Geneva] Conventions and of this Protocol.”).

37 Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

38 See, e.g., GWS art. 45 (“Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure the 

detailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the general 

principles of the present Convention.”); GWS-SEA art. 46 (same). Consider HAGUE X art. 19 (“The Commandersin-chief of the belligerent fleets must see that the above Articles are properly carried out; they will have also to see 

to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity 

with the general principles of the present Convention.”).

39 Consider AP I art. 87(3) (“The High Contracting Parties and Parties to the conflict shall require any commander 

who is aware that subordinates or other persons under his control are going to commit or have committed a breach 

of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the 

Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators 

thereof.”). Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

40 United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT

524 (“With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit 

offences against the indigenous population, this obligation as a matter of International Law is considered doubtful. 

The duty imposed upon a military commander is the protection of the civilian population. Whether this protection 

be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be 

assured by disciplinary measures or otherwise, is immaterial from an international standpoint.”).
1079

their command or against persons to whom they have a legal duty to protect.41

18.4.4 Issuance of Guidance, Training of Subordinates, and Other Preventive or

Corrective Measures. Apart from disciplinary measures, a variety of other measures may be 

appropriate to prevent or address violations of the law of war by subordinates. For example, 

commanders should ensure that members of the armed forces under their command are, 

commensurate with their duties, aware of their duties under the law of war.42 After violations 

have occurred, retraining personnel or revising procedures may be appropriate, particularly 

where the underlying facts or nature of the violations do not warrant punitive measures.

18.5 ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS

18.5.1 Legal Advisers. The United States has provided for legal advisers to advise 

military commanders on the law of war.43 For example, DoD policy has required that each head 

of a DoD component make qualified legal advisers available at all levels of command to provide 

advice about law of war compliance during planning and execution of exercises and operations.44 

18.5.1.1 Review of Plans, Policies, Directives, and Rules of Engagement by Legal 

Advisers. DoD policy has required that commanders of the combatant commands ensure that all 

plans, policies, directives, and rules of engagement, and those of subordinate commands and 

components, are reviewed by legal advisers to ensure their consistency with the law of war and 

DoD policy on the law of war.

45

18.5.1.2 Supervision of Administration of Programs to Address Enemy Violations 

of the Law of War. DoD policy has required that commanders of the combatant commands 

 41 Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War).

42 Consider AP I art. 87(2) (“In order to prevent and suppress breaches, High Contracting Parties and Parties to the 

conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the 

armed forces under their command are aware of their obligations under the Conventions and this Protocol.”).

43 Consider AP I art. 82 (“The High Contracting Parties at all times, and the Parties to the conflict in time of armed 

conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the 

appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be 

given to the armed forces on this subject.”).

44 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“The Heads of the DoD Components shall: ... [¶5.7.3] Make qualified legal advisers at all levels of command 

available to provide advice about law of war compliance during planning and execution of exercises and operations; 

and institute and implement programs to comply with the reporting requirements established in section 6.”); DOD

DIRECTIVE 5100.77, DoD Law of War Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: ... 

[¶5.3.3] “Ensure that qualified legal advisers are immediately available at all levels of command to provide advice 

about law of war compliance during planning and execution of exercises and operations; and institute and 

implement programs to comply with the reporting requirements established in section 6., below.”).

45 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“The Commanders of the Combatant Commands shall: ...[¶5.11.8] Ensure all plans, policies, directives, and 

rules of engagement issued by the command and its subordinate commands and components are reviewed by legal 

advisers to ensure their consistency with this Directive and the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of 

War Program, ¶5.8 (Dec. 9, 1998) (“The Commanders of the Combatant Commands shall: ... [¶5.8.6] Ensure all 

plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and 

components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.”).
1080

designate a command legal adviser to supervise the administration of those aspects of the 

command’s program dealing with possible, suspected, or alleged enemy violations of the law of 

war.46

18.5.1.3 Review of the Acquisition of Weapons. DoD policy has required the legal 

review of the intended acquisition of weapons.47

18.5.2 Law of War Questions During Military Operations. During military operations, 

questions on the law of war from U.S. forces or coalition partners related to a specific issue 

should be referred through the operational chain of command for resolution. It may also be 

appropriate to refer questions to either the office of the Judge Advocate General of a Military 

Department, the Staff Judge Advocate to the Commandant of the Marines Corps, the General 

Counsel of a Military Department, the Legal Counsel to the Chairman of the Joint Chiefs of 

Staff, or the DoD General Counsel.

18.5.3 Role of the DoD Law of War Working Group. The DoD Law of War Working 

Group is a DoD internal mechanism for coordination on law of war issues. It consists of 

representatives of the General Counsel, Department of Defense; representatives, at the election 

of each, of the General Counsel of each Military Department, the Judge Advocate General of 

each Military Department, the Staff Judge Advocate to the Commandant of the Marine Corps, 

and the Legal Counsel to the Chairman of the Joint Chiefs of Staff.48 The DoD Law of War 

Working Group develops and coordinates law of war initiatives and issues, manages other law of 

war matters as they arise, and provides advice to the DoD General Counsel on legal matters 

covered by DoD Directive 2311.01E.49 This includes the preparation, review, and updating of 

 46 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“The Commanders of the Combatant Commands shall: ... [¶5.11.5] Designate the command legal adviser to 

supervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy 

violations of the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶5.8 (Dec. 9, 1998) (“The 

Commanders of the Combatant Commands shall: ... [¶5.8.3] Designate the command legal adviser to supervise the 

administration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of the 

law of war.”).

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

48 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“The General Counsel of the Department of Defense (GC, DoD) shall: Supervise and assign a chair for the 

DoD Law of War Working Group, consisting of representatives, at the election by each of the GC, DoD; the General 

Counsel of each Military Department; the Counsel to the Commandant of the Marine Corps; the Judge Advocate 

General of each Military Department; the Staff Judge Advocate to the Commandant of the Marine Corps; and the 

Legal Counsel to the Chairman of the Joint Chiefs of Staff.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, 

¶5.1.2 (Dec. 9, 1998) (“The General Counsel of the Department of Defense shall: Establish a DoD Law of War 

Working Group consisting of representatives from the General Counsel of the Department of Defense (GC, DoD), 

the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the International and Operational Law Division of 

the Office of the Judge Advocate General of each Military Department, and the Operational Law Branch of the 

Office of the Staff Judge Advocate to the Commandant of the Marine Corps.”).

49 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22, 

2011) (“The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues; 

support the research, preparation, review, and updating of the DoD Law of War Manual; manage other law of war 

matters as they arise; and provide advice to the General Counsel on legal matters covered by this Directive.”); DOD

DIRECTIVE 5100.77, DoD Law of War Program, ¶5.1.2 (Dec. 9, 1998) (“The DoD Law of War Working Group shall 
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this manual.

18.6 DISSEMINATION, STUDY, AND OTHER MEASURES TO FACILITATE UNDERSTANDING OF DUTIES 

UNDER THE LAW OF WAR

A basic step in implementing and enforcing the law of war is to ensure that people 

understand its requirements. Certain treaties require that Parties disseminate the text of that 

treaty and promote its study, especially by those personnel who are assigned to implement its 

obligations. 

18.6.1 General Dissemination and Study of Treaties. Certain treaties require that Parties 

disseminate the treaty and promote study of that treaty by the armed forces and the civilian 

population.

18.6.1.1 Dissemination and Study - 1949 Geneva Conventions. Parties to 1949 

Geneva Conventions undertake, in time of peace, as in time of war, to disseminate the text of 

those Conventions widely as possible in their respective countries, and in particular, to include 

the study of the Conventions in their programs of military and, if possible, civil instruction.50 In 

addition to the entire population of the Party to the GPW, the GPW emphasizes that Parties’

armed forces should know the principles of the GPW.51 Similarly, the GWS and GWS-Sea 

emphasize that the armed fighting forces, medical personnel, and chaplains should know the 

principles of those treaties.52

18.6.1.2 Dissemination and Study - CCW and Protocols. Parties to the CCW also 

undertake, in time of peace as in time of armed conflict, to disseminate the CCW and those of its 

annexed Protocols by which they are bound as widely as possible in their respective countries 

and, in particular, to include the study of these instruments in their program of military 

instruction, so that those instruments may become known to their armed forces.53

 

develop and coordinate law of war initiatives and issues, manage other law of war matters as they arise, and provide 

advice to the General Counsel on legal matters covered by this Directive.”).

50 GC art. 144 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text 

of the present Convention as widely as possible in their respective countries, and, in particular, to include the study 

thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become 

known to the entire population.”).

51 GPW art. 127 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text 

of the present Convention as widely as possible in their respective countries, and, in particular, to include the study 

thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become 

known to all their armed forces and to the entire population.”).

52 GWS art. 47 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text 

of the present Convention as widely as possible in their respective countries, and, in particular, to include the study 

thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become 

known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.”); 

GWS-SEA art. 48 (same).

53 CCW art. 6 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, to 

disseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible in 

their respective countries and, in particular, to include the study thereof in their programmes of military instruction, 

so that those instruments may become known to their armed forces.”).
1082

18.6.1.3 Dissemination and Study – AP III. Parties to AP III undertake, in time of 

peace as in time of armed conflict, to disseminate this Protocol as widely as possible in their 

respective countries and, in particular, to include the study of it in their program of military 

instruction and to encourage the study of it by the civilian population, so that this instrument may 

become known to the armed forces and to the civilian population.54

18.6.1.4 Dissemination and Study – 1954 Hague Cultural Property Convention. 

Parties to the 1954 Hague Cultural Property Convention undertake, in time of peace as in time of 

armed conflict, to disseminate the text of the Convention and the Regulations for its execution as 

widely as possible in their respective countries. They undertake, in particular, to include the 

study thereof in their programs of military and, if possible, civilian training, so that its principles 

are made known to the whole population, especially the armed forces and personnel engaged in 

the protection of cultural property.55

18.6.1.5 Dissemination and Study – Child Soldiers Protocol. Parties to the Child 

Soldiers Protocol undertake to make the principles and provisions of the Child Soldiers Protocol 

widely known and promoted by appropriate means, to adults and children alike.56

18.6.2 Special Instruction or Training. In addition to requirements to disseminate and to 

promote the study of treaties, treaties also require States to ensure that members of the armed 

forces who have duties under those treaties are trained commensurate with those duties. DoD 

policy has required, as a general matter, that personnel are trained in the law of war 

commensurate with their duties.57 

Training may involve not only classroom instruction or individualized study, but also, for 

example, unit training exercises.58 

 54 AP III art. 7 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, to 

disseminate this Protocol as widely as possible in their respective countries and, in particular, to include the study 

thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so 

that this instrument may become known to the armed forces and to the civilian population.”).

55 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 25 (“The High Contracting Parties undertake, in time of 

peace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its 

execution as widely as possible in their respective countries. They undertake, in particular, to include the study 

thereof in their programmes of military and, if possible, civilian training, so that its principles are made known to the 

whole population, especially the armed forces and personnel engaged in the protection of cultural property.”).

56 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 

art. 6(2), May 25, 2000, 2173 UNTS 222, 238 (“States Parties undertake to make the principles and provisions of the 

present Protocol widely known and promoted by appropriate means, to adults and children alike.”).

57 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.8 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“The Secretaries of the Military Departments shall develop internal policies and procedures consistent with this 

Directive in support of the DoD Law of War Program to: ... 5.8.1. Provide directives, publications, instructions, and 

training so the principles and rules of the law of war will be known to members of their respective Departments. 

Such knowledge will be commensurate with each individual's duties and responsibilities.”).

58 For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL 

RESEARCH 981, 995-96 (2002) (“The Army also maintains four permanent Combat Training Centers (CTCs). The 

CTCs-at Ft. Irwin, California; Ft. Polk, Louisiana; Ft. Leavenworth, Kansas; and Hohenfels, Germany-offer a 

variety of combat and peace operations training for Army units. Three of the CTCs are staffed with a full-time 
1083

In many cases, training on law of war requirements may not be classified as “law of war”

training, or may be conducted without acknowledgment that the requirements are law of war 

requirements.59 Rather, it may be the case that military forces would be trained according to 

military doctrines or regulations, which have incorporated law of war requirements and have 

been reviewed for consistency with the law of war.60

The 1949 Geneva Conventions, the CCW Amended Mines Protocol, and the CCW 

Protocol V on Explosive Remnants of War each have specific provisions relating to special 

instruction or training.

18.6.2.1 Special Instructions or Training - 1949 Geneva Conventions. The GPW 

and GC further provide that the military or other authorities who assume responsibilities for 

POWs or protected persons must possess the text of the GPW or the GC and be specially 

instructed as to its provisions.61

18.6.2.2 Special Instructions or Training - CCW Amended Mines Protocol. Each 

Party to the CCW Amended Mines Protocol shall require that armed forces personnel receive 

training commensurate with their duties and responsibilities to comply with the provisions of the 

 

opposing force (the OPFOR), which ‘engages’ the training unit, as well as an observer-controller (OC) contingent. 

The OCs observe the mission, mentor the training unit's commanders and soldiers, and direct some of the activity 

that occurs during the training exercise. The Army Judge Advocate General's Corps has assigned Army judge 

advocates to serve as OCs at each of the CTCs. As part of their duties, these judge advocate OCs script events 

involving civilians, who, in turn, interact with the personnel of the unit being trained. These civilians, or roleplayers, serve critical training functions. For example, they may play the part of ICRC personnel who visit a 

training unit for the purpose of inspecting the unit's EPW holding facilities. They may also live in full-scale 

‘villages’ on the battlefield, playing the role of civilians who find themselves caught up in the context of an ongoing 

conflict. The judge advocate observer-controllers monitor the training unit's interaction with these civilians, 

ensuring that commanders, staff, and individual soldiers understand and meet their law of war obligations. These 

‘villages’ also include such structures as churches and historic sites. Thus, the unit also is ‘tested’ on law of war 

compliance as it relates to targeting and weaponeering considerations. Experience has shown this type of hands-on, 

realistic law of war training to be exceptionally effective.”).

59 For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL 

RESEARCH 981, 982-83 (2002) (“Other training may cover law of war topics, or address law of war obligations, 

without necessarily referring to the law of war. An example is teaching a soldier how to handle an enemy prisoner 

of war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, military 

police personnel working in each will go about their assigned duties to process and care for the prisoner of war. In 

all likelihood each soldier handling an EPW will have received training relative to his or her assigned duties. But 

the training of each will not necessarily be listed or categorized as ‘law of war training,’ since it is based on doctrine 

or regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on the 

basis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. The 

same may be said for training provided to combat engineers in laying minefields. The doctrine will have been 

reviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliance 

with the country’s treaty obligations. The combat engineer will employ lawful mines in a manner consistent with 

his or her doctrine. It is unlikely this will be classified as law of war training.”).

60 Refer to § 18.7.2 (Reasons for Implementation Through Instructions, Regulations, and Procedures).

61 GPW art. 127 (“Any military or other authorities, who in time of war assume responsibilities in respect of 

prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions.”); GC art. 

144 (“Any civilian, military, police or other authorities, who in time of war assume responsibilities in respect of 

protected persons, must possess the text of the Convention and be specially instructed as to its provisions.”).
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CCW Amended Mines Protocol.62

18.6.2.3 Special Instructions or Training - CCW Protocol V On Explosive 

Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War shall 

require that its personnel receive training consistent with the relevant provisions of this 

Protocol.63

18.7 INSTRUCTIONS, REGULATIONS, AND PROCEDURES TO IMPLEMENT AND ENFORCE THE LAW OF 

WAR

The law of war has traditionally been implemented through military instructions, 

regulations, and procedures. For example, the Lieber Code, one of the first codifications of the 

law of war, was called “Instructions for the Government of Armies of the United States in the 

Field,” and was issued as a General Order.64 Similarly, directives and regulations have been 

issued to implement law of war obligations relating to detainees and to establish higher standards 

as a matter of policy.

65

18.7.1 Treaty Provisions Specifically Contemplating or Requiring Military Instructions, 

Regulations, and Procedures. Law of war treaties contemplate or in some cases require that such 

instructions will be issued. In some cases, the implementation of a treaty through military 

instructions or regulations may be understood as a part of the general requirements for States to 

take appropriate actions to implement and enforce their obligations under that treaty.66

18.7.1.1 Instructions, Regulations, and Procedures – Hague Conventions on Land 

Warfare. Parties to Hague IV shall issue instructions to their armed land forces, which shall be 

in conformity with the “Regulations respecting the Laws and Customs of War on Land” annexed 

 62 CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed 

forces issue relevant military instructions and operating procedures and that armed forces personnel receive training 

commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).

63 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require that 

its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and 

that its personnel receive training consistent with the relevant provisions of this Protocol.”).

64 Refer to § 19.3 (Lieber Code).

65 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program (Aug. 19, 2014); DOD DIRECTIVE 2310.01E, 

The Department of Defense Detainee Program (Sept. 5, 2006); 1997 MULTI-SERVICE DETENTION REGULATION §1-

1.b (“This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODs 

which includes those persons held during military operations other than war. The principal treaties relevant to this 

regulation are: (1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded and 

Sick in Armed Forces in the Field (GWS). (2) The 1949 Geneva Convention Relative to the Amelioration of the 

Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GWS Sea). (3) The 1949 

Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (4) The 1949 Geneva Convention 

Relative to the Protection of Civilian Persons in Time of War (GC), and In the event of conflicts or discrepancies 

between this regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.”). 

Refer to § 8.1.2 (DoD Policies and Regulations Regarding the Treatment of Detainees); § 9.1.3 (DoD Policies and 

Regulations for the Treatment of POWs); § 10.1.2 (DoD Policies and Regulations for the Treatment of Internees).

66 Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War).
1085

to Hague IV.67

18.7.1.2 Instructions, Regulations, and Procedures – 1949 Geneva Conventions. 

The 1949 Geneva Conventions contemplate that Parties will adopt laws and regulations to ensure 

the proper application of the Conventions.68 The requirement to issue implementing instructions 

may be understood as part of the general obligation of Parties to undertake to respect and to 

ensure respect for the Conventions.69 

18.7.1.3 Instructions, Regulations, and Procedures – CCW Amended Mines 

Protocol. Each Party to the CCW Amended Mines Protocol shall require that its armed forces 

issue relevant military instructions and operating procedures.70

18.7.1.4 Instructions, Regulations, and Procedures – 1954 Hague Cultural 

Property Convention. Parties to the 1954 Hague Cultural Property Convention undertake to 

introduce in time of peace into their military regulations or instructions such provisions as may 

ensure observance of that Convention, and to foster in the members of their armed forces a spirit 

of respect for the culture and cultural property of all peoples.71

18.7.1.5 Instructions, Regulations, and Procedures – CCW Protocol V on 

Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War 

shall require that its armed forces and relevant agencies or departments issue appropriate 

instructions and operating procedures.72

18.7.2 Reasons for Implementation Through Instructions, Regulations, and Procedures. 

In addition to cases in which instructions or regulations are required by a treaty, there are a 

number of reasons for implementing law of war obligations through instructions, regulations, and 

 67 HAGUE IV art. 1 (“The Contracting Powers shall issue instructions to their armed land forces which shall be in 

conformity with the Regulations respecting the laws and customs of war on land, annexed to the present 

Convention.”). Cf. 1899 HAGUE II art. 1 (“The High Contracting Parties shall issue instructions to their armed land 

forces, which shall be in conformity with the ‘Regulations respecting the Laws and Customs of War on Land’ 

annexed to the present Convention.”).

68 GWS art. 48 (“The High Contracting Parties shall communicate to one another through the Swiss Federal Council 

and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as 

the laws and regulations which they may adopt to ensure the application thereof.”); GWS-SEA art. 49 (same); GPW 

art. 128 (same); GC art. 145 (same).

69 Refer to § 18.1.2.1 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty 

– 1949 Geneva Conventions).

70 CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed 

forces issue relevant military instructions and operating procedures and that armed forces personnel receive training 

commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).

71 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7 (“The High Contracting Parties undertake to introduce in 

time of peace into their military regulations or instructions such provisions as may ensure observance of the present 

Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural 

property of all peoples.”).

72 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require that 

its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and 

that its personnel receive training consistent with the relevant provisions of this Protocol.”).
1086

other procedures.

18.7.2.1 Re-characterizing National Obligations Into Rules for Individuals. First, 

under the traditional view of international law, obligations are owed between States, and not as 

between States and individuals.73 Thus, treaty provisions may need to be re-characterized from 

obligations that Parties to the treaty promise to one another into rules for individual conduct.

18.7.2.2 Implementing the Rules in Non-Self-Executing Treaties. The adoption of 

instructions, regulations, or procedures may assist in the implementation of non-self-executing 

treaties. When treaties or provisions of treaties are regarded as “non-self-executing,” such

provisions do not constitute enforceable domestic law even though the State has ratified them, 

but require further implementing action by the ratifying State.74

However, a State may adopt instructions, regulations, or procedures that are enforceable 

under its domestic law and that implement the rules reflected in a treaty. Thus, because such 

instructions, regulations, or procedures are enforceable domestically, the State can enforce the 

rules in the treaty, even though the treaty remains non-self-executing.

18.7.2.3 Setting Higher Standards as a Matter of Policy. In addition, States may 

choose to implement law of war obligations through instructions, regulations, and procedures 

because they wish to set a higher standard for their armed forces as a matter of policy. For 

example, rules of engagement are often more restrictive than relevant law of war requirements.75 

As another example, U.S. military operations are routinely subject to more restrictions and apply 

standards that are more protective of civilians than required by the law of war.

76

Although failures to adhere to such more restrictive standards may be punishable under 

the UCMJ, such failures would not necessarily be violations of the law of war.

18.7.2.4 Clarifying Ambiguities in the Law. States may choose to implement law 

of war obligations through instructions, regulations, and procedures because they wish to clarify 

their interpretation of the obligations, which otherwise may not be clear because a treaty 

provision is ambiguous or because the obligation is reflected in customary international law. 

18.7.2.5 Ensuring Detailed Requirements Are Not Neglected, and Assistance in 

Training. In cases in which treaty requirements are detailed and extensive, the promulgation of 

military instructions may also help ensure that treaty requirements are not omitted or neglected. 

Similarly, the promulgation of military instructions also assists in conducting training or special 

instruction.77

 73 Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).

74 Refer to § 1.10.2.1 (Force of Self-Executing and Non-Self-Executing Treaties Under U.S. Domestic Law).

75 Refer to § 1.6.5 (Rules of Engagement (ROE)).

76 Refer to § 5.1.2.1 (Applying Standards in the Conduct of Hostilities That Pose More Restrictions on Military 

Operations and That Are More Protective of Civilians Than Required By the Law of War). 

77 Refer to § 18.6.2 (Special Instruction or Training).
1087

18.7.3 Enforcement of Law of War Obligations Through Military Instructions, 

Regulations, and Procedures. The implementation of law of war treaties and obligations through 

military instructions, regulations, and procedures has the effect of making such rules enforceable 

because military personnel are required to comply with duly issued instructions, regulations, and 

procedures. Military personnel may be punished for failure to comply with such orders and 

instructions.78 Conduct that violates the law of war has often been punished through this 

mechanism.79

18.8 CONSIDERING LAW OF WAR OBLIGATIONS IN THE PLANNING OF MILITARY OPERATIONS

Military commanders and planners should consider law of war obligations in the planning 

of military operations. DoD policy has required the review of plans by legal advisers to ensure 

their consistency with the law of war.80

It may be especially important to consider affirmative obligations imposed by the law of 

war. For example, military commanders and planners should plan for their medical facilities to 

consider needing to treat enemy wounded and sick. Similarly, the requirements to care for 

detainees should also be considered. Potential responsibilities as an Occupying Power should 

also be considered. 

18.9 STATES’ OBLIGATIONS WITH RESPECT TO VIOLATIONS OF THE LAW OF WAR

States have certain obligations with respect to alleged violations of the law of war within 

their jurisdiction. In some cases, these obligations to address alleged violations of particular 

treaties may be understood as part of the general obligations to implement and enforce those 

treaties. In other cases, law of war treaties impose specific requirements on States with respect 

to alleged violations of obligations in those treaties.

18.9.1 State Responsibility for Violations of the Law of War by Its Armed Forces. A 

State may be responsible for violations of the law of war committed by persons forming part of 

its armed forces.81 In particular, States are responsible for the treatment accorded protected 

 78 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

79 For example, United States v. Harman, 68 M.J. 325, 326 (C.A.A.F. 2010) (“Contrary to her pleas, Appellant was 

convicted at a general court-martial, with officer and enlisted members, of conspiracy to maltreat subordinates; 

dereliction of duty by failing to protect Iraqi detainees from abuse, cruelty, and maltreatment; and four specifications 

of maltreatment under Articles 81, 92, and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 

893 (2006).”); Rear Admiral Richard G. Voge, Too Much Accuracy, PROCEEDINGS OF THE U.S. NAVAL INSTITUTE

257-59 (1950) (“[O]n April 9, 1945, to be exact, the Japanese government indignantly announced that the Awa 

Maru, on her return trip to Japan after carrying Red Cross supplies to Singapore and the Dutch East Indies, and 

travelling under a guarantee of safe conduct from the United States government, had been sunk by a U.S. submarine. 

... [T]he Navy announced that the Awa Maru had been sunk by the U.S.S. Queenfish, commanded by Commander 

Charles Elliot Loughlin, U.S. Navy, of North Wales, Pennsylvania. ... Loughlin was brought to trial on three 

charges: Charge I. Culpable inefficiency in the performance of duty. Charge II. Disobeying the lawful order of his 

superior officer. Charge III. Negligence in obeying orders.”).

80 Refer to § 18.5.1.1 (Review of Plans, Policies, Directives, and Rules of Engagement by Legal Advisers).

81 HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the case 

demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its 

armed forces.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 27 (“A belligerent shall indemnify the damage 
1088

persons under the GC by their agents.82 State responsibility for violations of the law of war 

committed by its armed forces or other agents results from principles of State responsibility in 

international law that are not specific to the law of war.83

State responsibility for violations of the law of war results in obligations to compensate 

other States for violations.84

18.9.2 Breaches of the 1954 Hague Cultural Property Convention. Parties to the 1954 

Hague Cultural Property Convention undertake to take, within the framework of their ordinary 

criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions 

upon those persons, of whatever nationality, who commit or order to be committed a breach of 

the 1954 Hague Cultural Property Convention.85

18.9.3 Grave Breaches of the 1949 Geneva Conventions. Parties to the 1949 Geneva 

Conventions have certain obligations relating to grave breaches of the 1949 Geneva 

Conventions. These obligations have been interpreted as declaratory of the obligations of 

belligerents under customary international law to take measures for the punishment of war 

crimes committed by all persons, including members of a belligerent’s armed forces.86 These 

obligations do not affect the right of a belligerent, under customary international law, to try 

enemy personnel for war crimes other than grave breaches of the 1949 Geneva Conventions.87

 

caused by its violation of the foregoing provisions. It shall likewise be responsible for the acts of persons who may 

belong to its armed forces.”). Consider AP I art. 91 (“A Party to the conflict which violates the provisions of the 

Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for 

all acts committed by persons forming part of its armed forces.”).

82 Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons).

83 See, e.g., I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 96 (§207) (1987) (“A 

state is responsible for any violation of its obligations under international law resulting from action or inaction by (a) 

the government of the state, (b) the government or authorities of any political subdivision of the state, or (c) any 

organ, agency, official, employee, or other agent of a government or of any political subdivision, acting within the 

scope of authority or under color of such authority.”).

84 Refer to § 18.16 (Compensation for Violations of the Law of War).

85 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 28 (“The High Contracting Parties undertake to take, within 

the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or 

disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of 

the present Convention.”).

86 1956 FM 27-10 (Change No. 1 1976) ¶506 (“b. Declaratory Character of Above Principles. The principles 

quoted in a [provisions of GWS art. 49, GWS-Sea art. 50, GPW art. 129, and GC art. 146], above, are declaratory of 

the obligations of belligerents under customary international law to take measures for the punishment of war crimes 

committed by all persons, including members of a belligerent's own armed forces.”). See also Joyce A.C. 

Gutteridge, The Geneva Conventions of 1949, 26 BRITISH YEAR BOOK OF INTERNATIONAL LAW 294, 305 (1949) 

(“In accordance with the decision that there should be no attempt in the Geneva Conventions to embark, in however 

rudimentary a fashion, on the settlement of a procedure for dealing with war crimes, the Conventions do not attempt 

to provide for the trial of ‘grave breaches’ thereof by any international tribunal, but contemplate only trial and 

sentence by the regularly constituted courts of parties to the conflict.”).

87 Richard R. Baxter, The Geneva Conventions of 1949, 62 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW 

STUDIES 220, 223 (1980) (“It may cheer some of you to hear that the Conventions make no reference to war 

crimes—by that name. There was much controversy about this point at the Conference in 1949, and the upshot of it 
1089

Parties to the 1949 Geneva Conventions undertake to enact any legislation necessary to 

provide effective penal sanctions for persons committing, or ordering to be committed, any of the 

grave breaches of the 1949 Geneva Conventions.88

Each Party to the 1949 Geneva Conventions shall be under the obligation to search for 

persons alleged to have committed, or to have ordered to be committed, such grave breaches, and 

shall bring such persons, regardless of their nationality, before its own courts.89 It may also, if it 

prefers, and in accordance with the provisions of its own legislation, hand such persons over for 

trial to another High Contracting Party concerned, provided such High Contracting Party has 

made out a prima facie case.90

No Party to the 1949 Geneva Conventions shall be allowed to absolve itself or any other 

Party of any liability incurred by itself or by another Party in respect of grave breaches of the 

1949 Geneva Conventions.91

18.9.3.1 Acts Constituting Grave Breaches. The acts constituting “grave 

breaches” for the purpose of triggering these obligations are defined differently depending on the 

particular Geneva Convention. However, all of the Conventions include as grave breaches the 

following acts against persons protected by the respective Convention: 

• willful killing; 

• torture or inhuman treatment, including biological experiments; and 

• willfully causing great suffering or serious injury to body or health. 

The term “grave breaches” was deliberately chosen so as not to indicate that violations of 

those provisions of the 1949 Geneva Conventions were themselves crimes or that the 1949 

 

was that each of the four Conventions contains an article specifying certain atrocious acts, such as the torturing of 

prisoners and civilians, as ‘grave breaches’ of the Conventions. Judicial safeguards are provided for persons 

charged with such acts. Of course, these specific provisions do not affect the right of a belligerent, under customary 

international law, to try enemy personnel for war crimes other than ‘grave breaches’ of the treaties.”).

88 GWS art. 49 (“The High Contracting Parties undertake to enact any legislation necessary to provide effective 

penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present 

Convention defined in the following Article.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

89 GWS art. 49 (“Each High Contracting Party shall be under the obligation to search for persons alleged to have 

committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of 

their nationality, before its own courts.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

90 GWS art. 49 (“It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such 

persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made 

out a prima facie case.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

91 GWS art. 51 (“No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party 

of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the 

preceding Article.”); GWS-SEA art. 52 (same); GPW art. 131 (same); GC art. 148 (same).
1090

Geneva Conventions created an international penal code.92 

Grave breaches of the GWS and GWS-Sea are those involving any of the following acts, 

if committed against persons or property protected by the GWS or GWS-Sea: 

• willful killing; torture or inhuman treatment, including biological experiments; 

• willfully causing great suffering or serious injury to body or health; and 

• extensive destruction and appropriation of property, not justified by military necessity 

and carried out unlawfully and wantonly.93

Grave breaches of the GPW are those involving any of the following acts, if committed 

against persons or property protected by the GPW: 

• willful killing;

• torture or inhuman treatment, including biological experiments;

• willfully causing great suffering or serious injury to body or health;

• compelling a POW to serve in the forces of the hostile Power; and

• willfully depriving a POW of the rights of fair and regular trial prescribed in the GPW.94

 92 See II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 356-57 (“Mr. SINCLAIR (United 

Kingdom): The Soviet proposal to substitute in these Articles the word ‘crime’ for the words ‘grave breaches’ has 

been very fully thrashed out both in the Special Committee and in the Joint Committee, and you will all have read 

the results in the Reports of those Committees and in particular in the Special Report on penal sanctions. It is not a 

question as to whether or not these grave breaches are crimes, it is simply a question of finding appropriate words 

for carrying out the intention behind these Articles which all the delegations who were responsible for framing those 

Articles were attempting to secure. That intention was to ensure that any persons who committed breaches of these 

Conventions would be suitably dealt with and punished according to the seriousness of the offences that they 

committed, and therefore it would have been quite inappropriate to have gone into the question of establishing a new 

penal code in these Articles. For that reason the proposal in the present Soviet amendment has been rejected 

throughout this Conference. ... Mr. YINGLING (United States of America): I associate myself with the remarks 

which have been made by the Delegate of the United Kingdom. I see no need for repeating the arguments. This 

Convention is clearly not a penal statute, and the term ‘crimes’ is clearly inappropriate to express violations of this 

Convention, which will not be crimes until they are so made by domestic penal legislation.”).

93 GWS art. 50 (“Grave breaches to which the preceding Article relates shall be those involving any of the following 

acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman 

treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and 

extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully 

and wantonly.”); GWS-SEA art. 51 (same).

94 GPW art. 130 (“Grave breaches to which the preceding Article relates shall be those involving any of the 

following acts, if committed against persons or property protected by the Convention: wilful killing, torture or 

inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or 

health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of 

war of the rights of fair and regular trial prescribed in this Convention.”).
1091

Grave breaches of the GC are those involving any of the following acts, if committed 

against persons or property protected by the GC: 

• willful killing;

• torture or inhuman treatment, including biological experiments;

• willfully causing great suffering or serious injury to body or health;

• unlawful deportation or transfer or unlawful confinement of a protected person;

• compelling a protected person to serve in the forces of a hostile Power; 

• willfully depriving a protected person of the rights of fair and regular trial prescribed in 

the GC;

• taking of hostages; and

• extensive destruction and appropriation of property, not justified by military necessity 

and carried out unlawfully and wantonly.95

18.9.3.2 Applicability of Grave Breaches Obligations to Non-International Armed 

Conflict. The text of the 1949 Geneva Conventions provides that grave breaches relate to 

violations “against persons or property protected by the Convention.” Since Common Article 3 

of the 1949 Convention protects persons against some of the acts described as grave breaches, 

the United States took the position that the obligations created by the grave breaches provisions 

of the 1949 Geneva Conventions could apply also to violations of Common Article 3.96 An 

Appeals Chamber of the ICTY did not accept this view, and understood the grave breaches 

provisions of the 1949 Geneva Conventions only to create obligations applicable in international 

armed conflicts.

97 U.S. law makes punishable certain conduct that constitutes a “grave breach of 

 95 GC art. 147 (“Grave breaches to which the preceding Article relates shall be those involving any of the following 

acts, if committed against persons or property protected by the present Convention: wilful killing, torture or 

inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or 

health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected 

person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and 

regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of 

property, not justified by military necessity and carried out unlawfully and wantonly.”).

96 D. Stephen Mathias, Legal Counselor, Embassy of the United States, The Hague, The Netherlands, Submission of 

the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in 

the Case of The Prosecutor of the Tribunal v. Dusan Tadic, 35-36 (Jul. 17, 1995) (“For example, Article 130 of the 

1949 Geneva Convention Relative to the Treatment of Prisoners of War defines ‘grave breaches’ as any of a series 

of specified acts ‘if committed against persons or property protected by the Convention.’ (This definition is 

included almost verbatim in Article 2 of the Tribunal Statute.) There is no special definition or usage in the Third 

Geneva Convention of the phrase ‘persons protected by the Convention.’ Insofar as Common Article 3 prohibits 

certain acts with respect to ‘[p]ersons taking no active part in hostilities’ in cases of armed conflict not of an 

international character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as 

persons protected by the Conventions.”).
1092

common article 3.”98

Regardless of whether the obligations in the grave breaches provisions apply with respect 

to violations of Common Article 3, serious violations of Common Article 3 may nonetheless be 

punishable.

18.9.3.3 Suppression of All Acts Contrary to the Provisions of the 1949 Geneva 

Conventions. Each High Contracting Party shall take measures necessary for the suppression of 

all acts contrary to the provisions of the 1949 Geneva Conventions other than the grave 

breaches.99

Such measures could include punishment of offenders. For example, if a U.S. Soldier 

steals the money that has been impounded from POWs and appropriates it for his or her own use, 

the theft would not constitute a grave breach of the 1949 Geneva Conventions, but would be an

offense under the Uniform Code of Military Justice.

100

Such measures may also be understood to include a wide range of measures, such as the 

promulgation or revision of policies and regulations, administrative or corrective measures, or 

retraining of personnel.101

18.9.4 CCW Amended Mines Protocol. Each Party to the CCW Amended Mines 

Protocol shall take all appropriate steps, including legislative and other measures, to prevent and 

suppress violations of the CCW Amended Mines Protocol by persons or on territory under its 

jurisdiction or control.102 Such measures include appropriate measures to ensure the imposition 

of penal sanctions against persons who, in relation to an armed conflict and contrary to the 

 97 See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for 

Interlocutory Appeal on Jurisdiction, ¶71 (Oct. 2, 1995) (“Article 2 refers to ‘grave breaches’ of the Geneva 

Conventions of 1949, which are widely understood to be committed only in international armed conflicts, so the 

reference in Article 2 would seem to suggest that the Article is limited to international armed conflicts.”).

98 18 U.S.C. § 2441 (“(c) Definition.— As used in this section the term “war crime” means any conduct— ...(3) 

which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context 

of and in association with an armed conflict not of an international character;”).

99 GWS art. 49 (“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary 

to the provisions of the present Convention other than the grave breaches defined in the following Article.”); GWSSEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

100 See, e.g., 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from the 

enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay 

all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter 

who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or 

disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to 

himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be 

punished as a court-martial may direct.”).

101 Refer to § 18.4.4 (Issuance of Guidance, Training of Subordinates, and Other Preventive or Corrective 

Measures); § 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions); § 18.7

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

102 Refer to § 18.1.2.3 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the 

Treaty – CCW Amended Mines Protocol).
1093

provisions of the CCW Amended Mines Protocol, willfully kill or cause serious injury to 

civilians and to bring such persons to justice.103

Penal sanctions under Article 14 of the CCW Amended Mines Protocol only apply in a 

situation in which an individual: (1) knew, or should have known, that his or her action was 

prohibited under the CCW Amended Mines Protocol; (2) intended to kill or cause serious injury 

to a civilian; and (3) knew, or should have known, that the person he or she intended to kill or 

cause serious injury was a civilian.104

U.S. Federal law authorizes prosecutions for such conduct.

105

18.9.5 War Crimes – Notes on Terminology. The term “war crime” has been used in 

different ways in different contexts. In contemporary parlance, the term “war crime” is most 

often used to mean serious violations of the law of war.

18.9.5.1 War Crimes – Any Violation of the Law of War. In some cases, the term 

“war crime” has been used as a technical expression for a violation of the law of war by any 

person; i.e., under this usage, any violation of the law of war is a war crime.106 This has been 

 103 CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps, 

including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on 

territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include 

appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed 

conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring 

such persons to justice.”).

104 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 

UNTS 128, 129 (“The United States understands that - ... (B) Article 14 of the Amended Mines Protocol (insofar as 

it relates to penal sanctions) shall apply only in a situation in which an individual – (i) knew, or should have known, 

that his action was prohibited under the Amended Mines Protocol; (ii) intended to kill or cause serious injury to a 

civilian; and (iii) knew or should have known, that the person he intended to kill or cause serious injury was a 

civilian.”).

105 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in 

any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term 

of years, or both, and if death results to the victim, shall also be subject to the penalty of death. ... (c) Definition.—

As used in this section the term “war crime” means any conduct— ... (4) of a person who, in relation to an armed 

conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the 

United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).

106 See, e.g., Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the 

United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the 

Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for 

the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 

288 (“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there 

shall be individual responsibility:– ... (b) War crimes: namely, violations of the laws or customs of war. Such

violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other 

purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on 

the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or 

devastation not justified by military necessity;”).
1094

longstanding U.S. military doctrine.107

Any violation of the law of war by members of the armed forces of a State could be made 

punishable by that State through its domestic law, including military law applicable to its armed 

forces. For example, under military law, violations of the law of war may be made punishable 

through military orders to comply with law of war requirements.108 Commanders may also 

impose non-judicial punishment or take adverse administrative action to address minor

violations.109

18.9.5.2 War Crimes – Serious Violations of the Law of War. Sometimes the term 

“war crime” is used to refer to particularly serious violations of the law of war. For example, 

this is generally the usage when the term “war crime” is defined for the purposes of a particular 

criminal statute.110

This usage of “war crime” is understood to exclude minor violations of the law of war. 

For example, if during an international armed conflict, military medical personnel perform their 

duties while wearing an armlet displaying the distinctive emblem affixed to their right arm –

rather than to their left arm, as specified by Article 40 of the GWS, these personnel may be said 

to be violating the law of war. However, under this usage of “war crime,” such violations 

generally would not be regarded as a “war crime.”

18.9.5.3 War Crimes – Serious Violations of Domestic Law Applicable During 

Armed Conflict. The term “war crime” has also been used to describe offenses, such as 

espionage and unprivileged belligerency, that although not prohibited by international law, are 

properly liable to punishment by the belligerent against which they are directed.111 Generally, 

this usage does not prevail today, although practitioners may find this usage in older sources.

 107 See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-4, Inspections and Investigations: 

War Crimes ¶3.a (May 18, 1968) (“Every violation of the law of war is a war crime”); 1956 FM 27-10 (Change No. 

1 1976) ¶499 (“The term ‘war crime’ is the technical expression for a violation of the law of war by any person or 

persons, military or civilian. Every violation of the law of war is a war crime.”). Cf. 1958 UK MANUAL ¶624 

(“The term ‘war crime’ is the technical expression for violations of the laws of warfare, whether committed by 

members of the armed forces or by civilians.”).

108 Refer to § 18.7.3 (Enforcement of Law of War Obligations Through Military Instructions, Regulations, and 

Procedures).

109 Refer to § 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions).

110 See, e.g., 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war 

crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or 

any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. ... (c) 

Definition.— As used in this section the term “war crime” means any conduct— ... .”).

111 1958 UK MANUAL ¶624 (“The term ‘war crime’ is the technical expression for violations of the laws of warfare, 

whether committed by members of the armed forces or by civilians. It has also been customary to describe as war 

crimes such acts as espionage and so-called war treason which, although not prohibited by international law, are 

properly liable to punishment by the belligerent against which they are directed. However, the accuracy of the 

description of such acts as war crimes is doubtful.”). Refer to § 4.19.4.1 (Unprivileged Belligerency and the Law of 

War – Notes on Terminology).
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18.10 METHODS FOR RESPONDING TO VIOLATIONS OF THE LAW OF WAR BY THE ENEMY

In the event of violation of the law of war, it may be possible for the injured State to 

resort to remedial action of the following types:

• publication of the facts, with a view to influencing public opinion against the offending 

belligerent;

• protests and demands to the offending party,

112 including demands for compensation or 

the punishment of enemy persons who have violated the law;

113

• solicitation of the good offices, mediation, or intervention of neutral States for the 

purpose of making the enemy observe the law of war;

114

• petition to the U.N. Security Council;

115

• punishment of captured offenders as war criminals, either through national or 

international tribunals;

116

• retorsion;117 and

• reprisals.118

18.11 PROTESTS AND DEMANDS TO THE OFFENDING PARTY

An initial step in responding to law of war violations by the enemy is to issue a formal or 

informal complaint to the offending party.

18.11.1 Method of Transmitting Protests and Demands. In view of the lack of diplomatic 

relations between States involved in an armed conflict, complaints cannot normally be made 

through the usual diplomatic channels. However, other methods are available, depending on the 

degree of publicity required. The traditional method of complaining by parlementaire directly to 

the commander of the offending forces remains, although modern communications have meant 

that the message is more likely now to be transmitted through electronic means.

119

 112 Refer to § 18.11 (Protests and Demands to the Offending Party).

113 Refer to § 18.11.2 (Demands for Redress).

114 Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).

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

116 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War); § 18.20

(Prosecution in International and Hybrid Courts).

117 Refer to § 18.17 (Retorsion).

118 Refer to § 18.18 (Reprisals).

119 2004 UK MANUAL ¶16.6 (“In view of the lack of diplomatic relations between states involved in an armed 

conflict, complaints cannot normally be made through the usual diplomatic channels. However, other methods are 
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Complaints also may be made through the Protecting Power, an impartial humanitarian 

organization performing the duties of a Protecting Power, or a Neutral State.120

18.11.2 Demands for Redress. In addition to demands to cease committing violations, 

protests may also include demands for redress by the offending party. For example, a State may 

demand that a national investigation or international investigation be conducted.121 A State may 

demand financial compensation or other reparations.122 Similarly, a State may demand that 

offending individuals be held accountable for their offenses through judicial or other 

processes.

123

18.12 U.N. SECURITY COUNCIL AND ENFORCEMENT OF THE LAW OF WAR

In some cases, the U.N. Security Council has determined that situations involving 

violations of the law of war constitute a threat to international peace and security.124 The U.N. 

Security Council may take a variety actions to respond to such threats.

18.12.1 Investigation by the U.N. Security Council Under the Charter of the United 

Nations. Under the Charter of the United Nations, the U.N. Security Council may investigate 

any dispute, or any situation that might lead to international friction or give rise to a dispute, in 

order to determine whether the continuance of the dispute or situation is likely to endanger the 

maintenance of international peace and security.125 This authority of the U.N. Security Council

to investigate situations includes any such situations that involve violations of the law of war.

 available, depending on the degree of publicity required. The traditional method of complaining under the 

protection of a flag of truce remains, although modern communications have meant that the message is more likely 

now to be transmitted by radio or television. Complaints may be made also through neutral states, whether or not 

the complainant also seeks their good offices to mediate with a view to making the adverse party observe the law of 

armed conflict.”); 1956 FM 27-10 (Change No. 1 1976) ¶ 495b (“In the event of violation of the law of war, the 

injured party may legally resort to remedial action of the following types: ... b. Protest and demand for 

compensation and/or punishment of the individual offenders. Such communications may be sent through the 

protecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or by 

parlementaire direct to the commander of the offending forces.”).

120 Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).

121 Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War); § 18.14 (International 

Mechanisms to Investigate Alleged Law of War Violations).

122 Refer to § 18.16 (Compensation for Violations of the Law of War).

123 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

124 U.N. SECURITY COUNCIL RESOLUTION 808, U.N. Doc S/RES/808 (Feb. 22, 1993) (“Expressing once again its 

grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the 

territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ‘ethnic 

cleansing’, Determining that this situation constitutes a threat to international peace and security.”); U.N. SECURITY 

COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Expressing once again its grave concern at the 

reports indicating that genocide and other systematic, widespread and flagrant violations of international 

humanitarian law have been committed in Rwanda, Determining that this situation continues to constitute a threat to 

international peace and security,”).

125 U.N. CHARTER art. 34 (“The Security Council may investigate any dispute, or any situation which might lead to 

international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or 

situation is likely to endanger the maintenance of international peace and security.”).
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The U.N. Security Council has provided for the establishment of commissions of inquiry 

or commissions of experts to report on violations of the law of war.126

18.12.2 Determining Liability and Determining That Compensation Should Be Paid. The 

U.N. Security Council may, in appropriate cases, affirm that States are liable for violations of 

international law and establish mechanisms to facilitate the payment of compensation for such 

violations.

127

18.12.3 Authorizing the Use of Force. The U.N. Security Council has authorized the use 

of force in order to protect civilians who are being attacked in violation of the law of war.

128

 126 For example, U.N. SECURITY COUNCIL RESOLUTION 780, U.N. Doc S/RES/780 (Oct. 6, 1992) (“Requests the 

Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse 

the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further 

information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or 

bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the 

evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law 

committed in the territory of the former Yugoslavia.”); U.N. SECURITY COUNCIL RESOLUTION 935, U.N. Doc 

S/RES/935 (Jul. 1, 1994) (“Requests the Secretary-General to establish, as a matter of urgency, an impartial 

Commission of Experts to examine and analyse information submitted pursuant to the present resolution, together 

with such further information as the Commission of Experts may obtain through its own investigations or the efforts 

of other persons or bodies, including the information made available by the Special Rapporteur for Rwanda, with a 

view to providing the Secretary-General with its conclusions on the evidence of grave violations of international 

humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide.”); U.N.

SECURITY COUNCIL RESOLUTION 1564, U.N. Doc S/RES/1564 (Sept. 18, 2004) (“Requests that the SecretaryGeneral rapidly establish an international commission of inquiry in order immediately to investigate reports of 

violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether 

or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that 

those responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further 

requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to take 

appropriate steps to increase the number of human rights monitors deployed to Darfur.”).

127 See, e.g., U.N. COMPENSATIONS COMMISSION GOVERNING COUNCIL, Report and Recommendations Made by the 

Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc. 

S/AC.26/1996/R.27/Annex, 22 ¶ 68 (Dec. 18, 1996) (“The Security Council having determined, under Chapter VII 

of the Charter, that compensation in accordance with international law should be provided to foreign Governments, 

nationals and corporations for any direct loss, damage or injury sustained by them as a result of Iraq’s unlawful 

invasion and occupation of Kuwait, in order to restore international peace and security, the issue of Iraq’s liability 

has been resolved by the Security Council and constitutes part of the law applicable before the Commission.”); id. at 

¶67 (“According to paragraph 16 of Security Council resolution 687 (1991), which under article 31 of the Rules 

forms part of the law applicable before the Commission, ‘Iraq . . . is liable under international law for any direct 

loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign 

Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.’ The 

Panel notes that, when making resolution 687 (1991), the Security Council acted under Chapter VII of the United 

Nations Charter, i.e., it exercised its powers under that Chapter to maintain and restore international peace and 

security.”).

128 U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc S/RES/1973 ¶4 (Mar. 17, 2011) (“Authorizes Member 

States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, 

and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of 

resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab 

Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan 

territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures 

they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the 
1098

18.12.4 Authorizing International Criminal Tribunals. The U.N. Security Council has 

established international criminal tribunals for the purpose of prosecuting serious violations of 

international humanitarian law. The U.N. Security Council has exercised this authority to create 

the International Criminal Tribunal for the Former Yugoslavia and the International Criminal 

Tribunal for Rwanda.129

The Rome Statute of the International Criminal Court provides that the International 

Criminal Court may exercise its jurisdiction with respect to crimes when a situation is referred to 

the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United 

Nations.130 The U.N. Security Council has referred situations in Darfur and Libya to the 

Prosecutor of the International Criminal Court.131 The United States has objected to certain

aspects of the jurisdiction of the International Criminal Court, and there are certain restrictions in 

U.S. domestic law on support to the International Criminal Court.

132

18.12.5 U.N. Security Council Role in Certain Treaties. 

18.12.5.1 U.N. Security Council Role in the Biological Weapons Convention and 

ENMOD Convention. The Biological Weapons Convention and the ENMOD Convention

provide that Parties to the treaties may lodge a complaint with the Security Council, when a 

Party believes that another Party is in breach of its obligations deriving from the provisions of 

 

Security Council.”); U.N. SECURITY COUNCIL RESOLUTION 1270, U.N. Doc S/RES/1270 ¶14 (Oct. 22, 1999) 

(“Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate 

UNAMSIL may take the necessary action to ensure the security and freedom of movement of its personnel and, 

within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical 

violence, taking into account the responsibilities of the Government of Sierra Leone and ECOMOG;”).

129 U.N. SECURITY COUNCIL RESOLUTION 827, U.N. Doc S/RES/827 (May 25, 1993) (“Acting under Chapter VII of 

the Charter of the United Nations, ... 2. Decides hereby to establish an international tribunal for the sole purpose of 

prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of 

the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the 

restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the abovementioned report;”); U.N. SECURITY COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Acting 

under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the 

Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting 

persons responsible for genocide and other serious violations of international humanitarian law committed in the 

territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the 

territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute 

of the International Criminal Tribunal for Rwanda annexed hereto;”).

130 ROME STATUTE art. 13(b) (“The Court may exercise its jurisdiction with respect to a crime referred to in article 5 

in accordance with the provisions of this Statute if: A situation in which one or more of such crimes appears to have 

been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the 

United Nations;”).

131 U.N. SECURITY COUNCIL RESOLUTION 1593, U.N. Doc S/RES/1593 (Mar. 31, 2005) (“Decides to refer the 

situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”); U.N. SECURITY 

COUNCIL RESOLUTION 1970, U.N. Doc S/RES/1970 (Feb. 26, 2011) (“Decides to refer the situation in the Libyan 

Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;”).

132 Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).
1099

that treaty.133 These treaties provide that each Party undertakes to cooperate with any 

investigation that the Security Council may initiate.

134 In addition, these treaties impose an 

additional obligation on Parties to provide or support assistance to Parties that request assistance 

if the Security Council has made an appropriate decision.135

18.12.5.2 U.N. Security Council and the Chemical Weapons Convention. The 

Chemical Weapons Convention provides that the Conference of the States Parties shall, in cases 

of particular gravity, bring the issue, including relevant information and conclusions, to the 

attention of the U.N. General Assembly and the U.N. Security Council.136

18.12.5.3 U.N. Security Council Role in the Statute of the International Court of 

Justice. Under the Statute of the International Court of Justice, a party to a case may have 

recourse to the Security Council if an opposing party fails to perform the obligations incumbent 

upon it under a judgment rendered by the Court.137

18.13 NATIONAL INVESTIGATIONS OF ALLEGED VIOLATIONS OF THE LAW OF WAR

The duties to implement and enforce the law of war also imply duties to investigate 

 133 BIOLOGICAL WEAPONS CONVENTION art. 6(1) (“Any State Party to this Convention which finds that any other 

State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint 

with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming 

its validity, as well as a request for its consideration by the Security Council.”); ENMOD Convention art. 5(3) (“Any 

State Party to this Convention which has reason to believe that any other State Party is acting in breach of 

obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the 

United Nations. Such a complaint should include all relevant information as well as all possible evidence 

supporting its validity.”).

134 BIOLOGICAL WEAPONS CONVENTION art. 6(2) (“Each State Party to this Convention undertakes to co-operate in 

carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the 

Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall 

inform the States Parties to the Convention of the results of the investigation.”); ENMOD CONVENTION art. 5(4) 

(“Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security 

Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the 

complaint received by the Council. The Security Council shall inform the States Parties of the results of the 

investigation.”).

135 BIOLOGICAL WEAPONS CONVENTION art. 7 (“Each State Party to this Convention undertakes to provide or 

support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, 

if the Security Council decides that such Party has been exposed to danger as a result of violation of the 

Convention.”); ENMOD CONVENTION art. 5(5) (“Each State Party to this Convention undertakes to provide or 

support assistance, in accordance with the provisions of the Charter of the United Nations, to any State Party which 

so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of 

violation of the Convention.”).

136 CHEMICAL WEAPONS CONVENTION art. 12(4) (“The Conference shall, in cases of particular gravity, bring the 

issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and 

the United Nations Security Council.”).

137 ICJ STATUTE art. 94(2) (“If any party to a case fails to perform the obligations incumbent upon it under a 

judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems 

necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”).
1100

reports of alleged violations of the law of war.138 In addition to taking measures to meet the 

requirements of DoD policy, commanders may also take other measures they deem appropriate 

to ensure appropriate investigation and reporting of alleged violations of the law of war within 

their command.139

18.13.1 DoD Policy on Reporting Law of War Violations. DoD policy has required the 

reporting of possible, suspected, or alleged violations of the law of war for which there is 

credible information, or conduct during military operations other than war that would constitute a 

violation of the law of war if it occurred during armed conflict (“reportable incidents”).140 Such 

policy has been in addition to other DoD policies that address the reporting of criminal 

incidents.141 Individual Military Services have implemented procedures to ensure that incidents, 

including war crimes, are promptly reported.142 

18.13.1.1 Requirement for All Military and U.S. Civilian Employees, Contractor 

Personnel, and Subcontractors Assigned to or Accompanying a DoD Component. DoD policy 

has required that all military and U.S. civilian employees, contractor personnel, and 

 138 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1271 (“A 

commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, 

and protecting lives and property within the area of his command. His responsibility is coextensive with his area of 

command. He is charged with notice of occurrences taking place within that territory. He may require adequate 

reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise 

inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to 

require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his 

own dereliction as a defense. ... Want of knowledge of the contents of reports made to him is not a defense. Reports 

to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of 

such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a 

dereliction of duty which he cannot use in his own behalf.”).

139 For example, Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 54 

(May 30, 2013) (“In 2009, USCENTCOM issued two fragmentary orders (FRAGOs) related to LOAC incident 

reports and ‘legal reporting.’ USCENTCOM issued the FRAGOs because of perceived ‘lack of timely notifications 

and spotty recurring reports.’ The FRAGOs established timeline requirements for reports and described the 

information expected to be included in LOAC reports. For example, the FRAGOs required reporting units with 

knowledge of a suspected LOAC violation to transmit information to USCENTCOM within two hours through the 

Service component and operational chains of command, irrespective of accuracy or detail. Follow-up was also 

required within 24-48 hours with expanded information. The FRAGOs also required formal and informal 

investigations to be forwarded to the USCENTCOM Staff Judge Advocate as soon as available and before 

submission to organizations outside the USCENTCOM area of responsibility (AOR). The FRAGOs mandated that 

initial and subsequent reports contain the ‘5 W’s’ of the incident and additional, operationally relevant data. 

Further, the FRAGOs clarified the USCENTCOM requirement for weekly Judge Advocate activity reports, and 

mandated that ARCENT (Army Central) maintain a generic email address to receive LOAC reports.”).

140 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶3.2 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“Reportable Incident. A possible, suspected, or alleged violation of the law of war, for which there is credible 

information, or conduct during military operations other than war that would constitute a violation of the law of war 

if it occurred during an armed conflict.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶3.2 (Dec. 9, 1998) 

(“Reportable Incident. A possible, suspected, or alleged violation of the law of war.”).

141 See, e.g., DOD DIRECTIVE 7730.47, Defense Incident-Based Reporting System (DIBRS) (Oct. 15, 1996); DOD

INSTRUCTION 5240.4, Reporting of Counterintelligence and Criminal Violations (Sept. 22, 1992).

142 See, e.g., DEPARTMENT OF THE ARMY REGULATION 190-45, Law Enforcement Reporting (Mar. 30, 2007), 

Chapters 8 and 9.
1101

subcontractors assigned to or accompanying a DoD Component shall report reportable incidents 

through their chain of command. Contracts shall require contractor employees to report 

reportable incidents to the commander of the unit they are accompanying or the installation to 

which they are assigned, or to the Combatant Commander.143

18.13.1.2 Requirement for Unit Commanders. DoD policy has required that the 

commander of any unit that obtains information about a reportable incident shall immediately 

report the incident through the applicable operational command and Military Department.144

18.13.2 DoD Policy on Investigating Law of War Violations. DoD policy has required 

that all reportable incidents be thoroughly investigated.145 All the Military Departments and 

Services have regulations for the conduct of both formal and informal administrative 

investigations.146 

In addition, DoD policy has required that higher authorities receiving an initial report 

request a formal investigation by the cognizant military criminal investigative organization.147 

18.14 INTERNATIONAL MECHANISMS TO INVESTIGATE ALLEGED LAW OF WAR VIOLATIONS

In some cases, international mechanisms, such as commissions of inquiry, may be used to 

 143 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.3 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a 

DoD Component shall report reportable incidents through their chain of command. Contracts shall require 

contractor employees to report reportable incidents to the commander of the unit they are accompanying or the 

installation to which they are assigned, or to the Combatant Commander. Such reports may be made through other 

channels, such as the military police, a judge advocate, or an inspector general. Reports made to officials other than 

those specified in this paragraph shall, nonetheless, be accepted and immediately forwarded through the recipient's 

chain of command.”).

144 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“Initial Report. The commander of any unit that obtains information about a reportable incident shall immediately 

report the incident through the applicable operational command and Military Department. Reporting requirements 

are concurrent. The initial report shall be made through the most expeditious means available.”).

145 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.4 (May 9, 2006, Certified Current as of Feb. 22, 2011) 

(“All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are 

reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.”); DOD

DIRECTIVE 5100.77, DoD Law of War Program, ¶4.3 (Dec. 9, 1998) (“All reportable incidents committed by or 

against U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by 

corrective action.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶C(2) (Jul. 10, 1979) (“Alleged 

violations of the law of war, whether committed by or against U.S. or enemy personnel, are promptly reported, 

thoroughly investigated, and, whether appropriate, remedied by corrective action.”); DOD DIRECTIVE 5100.77, DoD 

Program for the Implementation of the Law of War, ¶II(C) (Nov. 5, 1974) (“Ensure that alleged violations of the law 

of war, whether committed by U. S. personnel or enemy personnel, are promptly reported, thoroughly investigated, 

and, where appropriate, remedied by corrective action.”).

146 See, e.g., DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7D, Manual of the Judge 

Advocate General (JAGMAN), Chapter II (Mar. 15, 2004); DEPARTMENT OF THE ARMY REGULATION 15-6,

Procedures for Investigating Officers and Boards of Officers (Nov. 2, 2006).

147 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22, 

2011). Such organizations include U.S. Army Criminal Investigation Command (USACIDC/CID), Air Force 

Special Investigations Command (AFOSI/OSI), or the Naval Criminal Investigative Service (NCIS).
1102

investigate alleged law of war violations. Commissions of inquiry might be established by 

treaty.148 Commissions of inquiry might also be established by the U.N. Security Council.

149

18.14.1 Inquiry Procedure in the 1949 Geneva Conventions. At the request of a party to 

the conflict, an inquiry shall be instituted, in a manner to be decided between the interested 

Parties, concerning any alleged violation of the 1949 Geneva Conventions.150 If agreement has 

not been reached concerning the procedure for the inquiry, the Parties should agree on the choice 

of an “umpire” who will decide upon the procedure to be followed.151 Once the violation has 

been established, the parties to the conflict “shall put an end to it and shall repress it with the 

least possible delay.”152

18.14.1.1 AP I – International Humanitarian Fact-Finding Commission (IHFFC). 

AP I provides for the establishment of an international fact-finding commission.

153 This 

commission is competent: (1) to inquire into any facts alleged to be a grave breach as defined in 

the 1949 Geneva Conventions and AP I or other serious violation of the 1949 Geneva 

Conventions or of AP I; and (2) to facilitate, through its good offices, the restoration of an 

attitude of respect for the Conventions and AP I.154

 148 For example, Treaty for the Settlement of disputes that may occur between the United States of America and 

Chile, art. 1, Jul. 24, 1914, 39 STAT. 1645, 1646 (“The High Contracting Parties agree that all disputes that may 

arise in the future between them, shall, when diplomatic methods of adjustment have failed, be submitted for 

investigation and report to an International Commission to be constituted in the manner prescribed in the next 

succeeding article; and they agree not to declare war or begin hostilities during such investigation, nor before all 

resources stipulated in this treaty have proved unsuccessful.”); Convention for the Pacific Settlement of International 

Disputes, art. 9, Oct. 18, 1907, 36 STAT. 2199, 2214 (“In disputes of an international nature involving neither honour 

nor vital interests, and arising from a difference of opinion on points of fact, the Contracting Powers deem it 

expedient and desirable that the parties who have not been able to come to an agreement by means of diplomacy, 

should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of

these disputes by elucidating the facts by means of an impartial and conscientious investigation.”); Convention for 

the Pacific Settlement of International Disputes, art. 9, Jul. 29, 1899, 32 STAT. 1779, 1787 (“In differences of an 

international nature involving neither honour nor vital interests, and arising from a difference of opinion on points of 

fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means 

of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a 

solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.”).

149 Refer to § 18.12.1 (Investigation by the U.N. Security Council Under the Charter of the United Nations).

150 GWS art. 52 (“At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided 

between the interested Parties, concerning any alleged violation of the Convention.”); GWS-SEA art. 53 (same); 

GPW art. 132 (same); GC art. 149 (same).

151 GWS art. 52 (“If agreement has not been reached concerning the procedure for the enquiry, the Parties should 

agree on the choice of an umpire who will decide upon the procedure to be followed.”); GWS-SEA art. 53 (same); 

GPW art. 132 (same); GC art. 149 (same).

152 GWS art. 52 (“Once the violation has been established, the Parties to the conflict shall put an end to it and shall 

repress it with the least possible delay.”); GWS-SEA art. 53 (same); GPW art. 132 (same); GC art. 149 (same).

153 AP I art. 90 (“An International Fact-Finding Commission 443 (hereinafter referred to as ‘the Commission’) 

consisting of fifteen members of high moral standing and acknowledged impartiality shall be established.”).

154 AP I art. 90(2)(c)(i-ii) (“The Commission shall be competent to: (i) Enquire into any facts alleged to be a grave 

breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this 
1103

The commission operates on the basis of mutual consent. Any party to a conflict may ask 

the commission to conduct an inquiry; but, unless the States involved previously declared that 

they recognize ipso facto and without special agreement, in relation to any other Party to AP I 

accepting the same obligation, the competence of the Commission, the Commission will only 

investigate with the consent of the States involved.155 

Although the IHFFC was officially constituted in 1991, it has not been used in its first 

two decades.

156 

The United States has not ratified AP I, and has not recognized the competence of the 

IHFFC.

18.15 PROTECTING POWER AND OTHER NEUTRAL INTERMEDIARIES

The Protecting Power is an organ for the implementation of the 1949 Geneva 

Conventions and the 1954 Hague Cultural Property Convention.

18.15.1 Background on the Protecting Power. Under international law, a State that lacks

normal diplomatic relations with a second State may, with the consent of the second State,

designate a third State act to protect the first State’s interests as they relate to the second State.157 

This third State is often called a Protecting Power. A State could be a Protecting Power for the 

purposes of more than one treaty.

18.15.1.1 Protecting Power Under the 1949 Geneva Conventions. Under the 

1949 Geneva Conventions, belligerents may designate neutral States as “Protecting Powers” to 

help implement the Geneva Conventions. Specifically, the 1949 Geneva Conventions provide 

that the Conventions shall be applied with the cooperation and under the scrutiny of the 

 

Protocol; (ii) Facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this 

Protocol.”).

155 AP I art. 90(2) (“(a) The High Contracting Parties may at the time of signing, ratifying or acceding to the 

Protocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in 

relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to 

inquire into allegations by such other Party, as authorized by this Article; ... (d) In other situations, the Commission 

shall institute an inquiry at the request of a Party to the conflict only with the consent of the other Party or Parties 

concerned;”).

156 Charles Garraway, Fact-Finding and the International Humanitarian Fact-Finding Commission, in MORTEN 

BERGSMO, QUALITY CONTROL IN FACT-FINDING 443 (Nov. 16, 2013) (“It is regrettable that in the two decades that 

the Commission has been established, it has never been called into action. In the early days, little was known of the 

Commission, but in recent years, a series of promotional activities have been undertaken to raise consciousness 

amongst States. In the view of the Commission, it has an important role to play in the modern world and is anxious

to fulfil this.”).

157 Vienna Convention on Diplomatic Relations, art. 45, Apr. 18, 1961, 500 UNTS 95, 122 (“If diplomatic relations 

are broken off between two States, or if a mission is permanently or temporarily recalled: ... (c) The sending State 

may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving 

State.”).
1104

Protecting Powers whose duty it is to safeguard the interests of the parties to the conflict.158 

The Detaining Power has an obligation to seek a Protecting Power if the wounded and 

sick, shipwrecked, medical personnel and chaplains, POWs, or protected persons under the GC 

in its custody do not benefit from one.159 If such protection cannot be arranged, the 1949 

Geneva Conventions contemplate that States will use the ICRC or another impartial 

humanitarian organization to assume the humanitarian functions performed by Protecting 

Powers.160

18.15.1.2 Protecting Power Under the 1954 Hague Cultural Property 

Convention. The 1954 Hague Cultural Property Convention provides that it and the Regulations 

for its execution shall be applied with the co-operation of the Protecting Powers responsible for 

safeguarding the interests of the parties to the conflict.161

18.15.2 Appointment of a Protecting Power. Within a State, the appointment of a 

Protecting Power is a decision made by authorities at the national level. Among States, the 

appointment of a Protecting Power requires the consent of the States whose relations are to be 

transacted through the Protecting Power. For example, during an international armed conflict, 

the U.S. designation of a neutral State as its Protecting Power would require agreement of the 

enemy State, but the consent of States allied with the United States would not be required.

The State appointed to be a Protecting Power must be able to fulfill the Protecting 

Power’s responsibilities.162 This State should be neutral or non-belligerent with respect to the 

conflict in question.163 However, the State need not be a traditionally neutral power, such as 

Sweden or Switzerland.164 In cases where a State serving as a Protecting Power enters the armed 

 158 GWS art. 8 (“The present Convention shall be applied with the cooperation and under the scrutiny of the 

Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”); GWS-SEA art. 8 (same); 

GPW art. 8 (same); GC art. 9 (same).

159 Refer to § 18.15.2.2 (Obligation on the Detaining Power to Seek a Protecting Power if Persons Protected by the 

1949 Geneva Conventions Do Not Benefit From One).

160 Refer to § 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by 

Protecting Powers Under the 1949 Geneva Conventions).

161 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21 (“The present Convention and the Regulations for its 

execution shall be applied with the co-operation of the Protecting Powers responsible for safeguarding the interests 

of the Parties to the conflict.”).

162 See GWS art. 10 (States and organizations fulfilling the duties of a Protecting Power “shall be required to act 

with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention 

depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate 

functions and to discharge them impartially.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).

163 See GWS art. 10 (When persons protected by the Convention do not benefit from a Protecting Power, “the 

Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under 

the present Convention by a Protecting Power designated by the Parties to a conflict.”); GWS-SEA art. 10 (same); 

GPW art. 10 (same); GC art. 11 (same). Cf. GWS art. 8 (contemplating that “Protecting Powers may appoint, apart 

from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral 

Powers) (emphasis added); GWS-SEA art. 8 (same); GPW art. 8 (same); GC art. 9 (same).

164 For example, during the Franco-Prussian War (1870-71), “Great Britain was charged with the protection of the 

French in Germany; and the United States, Russia, and Switzerland acted as Protecting Powers in France for the 
1105

conflict, another State may assume the responsibilities of the Protecting Power.

165 A State may 

serve as the Protecting Power for more than one side in an armed conflict.166

18.15.2.1 Agreement for an Impartial and Effective Organization to Perform 

Protecting Power Duties Under the 1949 Geneva Conventions. The Parties to the 1949 Geneva 

Conventions may at any time agree to entrust to an organization that offers all guarantees of 

impartiality and efficacy the duties incumbent on Protecting Powers by virtue of the 1949 

Geneva Conventions.167

18.15.2.2 Obligation on the Detaining Power to Seek a Protecting Power if 

Persons Protected by the 1949 Geneva Conventions Do Not Benefit From One. When the

wounded and sick, shipwrecked, medical personnel and chaplains, POWs, or protected persons 

under the GC do not benefit or cease to benefit from the activities of a Protecting Power or an 

impartial and effective organization that performs the duties of the Protecting Power, the 

Detaining Power shall request a neutral State or such an organization to undertake the functions 

performed under the 1949 Geneva Conventions by a Protecting Power designated by the parties 

to a conflict.168

18.15.2.3 Impartial Humanitarian Organizations Assuming Humanitarian 

Functions Performed by Protecting Powers Under the 1949 Geneva Conventions. If the 

 various German States.” LEVIE, POWS 256. At various times during World War II, “Spain acted as the Protecting 

Power for Japan in the continental United States, while Sweden acted for her in Hawaii, and Switzerland in 

American Samoa.” LEVIE, POWS 257.

165 See LEVIE, POWS 259 (“The practice was adopted that when a neutral which had been acting as a Protecting 

Power itself became embroiled in the conflict, a successor Protecting Power would be designated to fill the 

vacuum.”).

166 For example, during the “Sino-Japanese War (1894-95) each side requested the United States to act as its 

Protecting Power, and so we find the same State acting as the Protecting Power for each belligerent within the 

territory of the other.” LEVIE, POWS 257.

167 GWS art. 10 (“The High Contracting Parties may at any time agree to entrust to an organization which offers all 

guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present 

Convention.”); GWS-SEA art. 11 (same); GPW art. 10 (same); GC art. 11 (same).

168 GWS art. 10 (“When wounded and sick, or medical personnel and chaplains do not benefit or cease to benefit, no 

matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first 

paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the 

functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.”); 

GWS-SEA art. 10 (“When wounded, sick and shipwrecked, or medical personnel and chaplains do not benefit or 

cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for 

in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake 

the functions performed under the present Convention by a Protecting Power designated by the Parties to a 

conflict.”); GPW art. 10 (“When prisoners of war do not benefit or cease to benefit, no matter for what reason, by 

the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining 

Power shall request a neutral State, or such an organization, to undertake the functions performed under the present 

Convention by a Protecting Power designated by the Parties to a conflict.”); GC art. 11 (“When persons protected by 

the present Convention do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting 

Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral 

State, or such an organization, to undertake the functions performed under the present Convention by a Protecting 

Power designated by the Parties to a conflict.”).
1106

protection of a Protecting Power or an impartial and effective organization that the performs the 

duties of the Protecting Power cannot be arranged, the 1949 Geneva Conventions contemplate

that States will use the ICRC or another impartial humanitarian organization to assume the 

humanitarian functions performed by Protecting Powers.169

The ICRC has often performed such a role during armed conflict.170

18.15.3 Activities of the Protecting Power. A Protecting Power assists and verifies 

compliance with the 1949 Geneva Conventions. For example, under the GPW and GC, the 

Protecting Power transmits information between belligerents, monitors compliance by the 

Detaining Power, and takes an active role in promoting the welfare of POWs and protected 

persons.171 

The Protecting Power’s activities are conducted with the consent of the State on whose 

territory it serves and the State whose facilities it visits. For example, the delegates of the 

Protecting Power are subject to the approval of the Power with which they are to carry out their 

duties.172 In addition, a Protecting Power must ensure that its delegation does not exceed its 

humanitarian responsibilities and takes into account the imperative necessities of security of the 

State wherein they carry out their duties.173

18.15.4 Lending of Good Offices to Assist in Dispute Resolution. The 1949 Geneva 

Conventions contemplate that Protecting Powers shall lend their good offices with a view to 

settling disagreements between the parties to the conflict regarding protected persons, 

particularly in cases regarding the application or interpretation of the 1949 Geneva 

Conventions.

174 Protecting Powers may propose to the parties to the conflict a representative of 

a neutral Power or the ICRC to participate in the meeting.175 This mechanism developed from 

 169 See GWS art. 10 (“If protection cannot be arranged accordingly, the Detaining Power shall request or shall 

accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the 

International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers 

under the present Convention.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).

170 For example, FINAL REPORT ON THE PERSIAN GULF WAR 617 (During the 1991 Persian Gulf War, “[t]he 

International Committee of the Red Cross (ICRC) was provided access to Coalition EPW facilities and reviewed 

their findings with Coalition representatives in periodic meetings in Riyadh, Saudi Arabia.”).

171 Refer to § 9.32 (Role of the Protecting Power in the GPW); § 10.32 (Role of the Protecting Power in the GC).

172 Refer to § 4.25.1 (Appointment of Delegates of the Protecting Powers).

173 Refer to § 4.25.2 (Duties of the Representatives or Delegates of the Protecting Power).

174 See GWS art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly in cases 

of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the 

present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.”); 

GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).

175 See GWS art. 11 (“The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict a 

person belonging to a neutral Power, or delegated by the International Committee of the Red Cross, who shall be 

invited to take part in such a meeting.”); GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).
1107

State practice during World War I.

176

The 1954 Hague Cultural Property Convention also contemplates that Protecting Powers 

shall lend their good offices in all cases where they may deem it useful in the interests of cultural 

property, particularly if there is disagreement between the parties to the conflict as to the 

application or interpretation of the provisions of the 1954 Hague Cultural Property Convention 

or the Regulations for its execution.177 The Director-General of the United Nations Educational, 

Scientific, and Cultural Organization can also have a role in this process.178

18.16 COMPENSATION FOR VIOLATIONS OF THE LAW OF WAR

A State that is responsible for an internationally wrongful act is under an obligation to 

make full reparation for the injury caused by that act.179 This principle also applies to the law of 

war in that a State that violates the law of war shall, if the case demands, be liable to pay 

compensation.180

18.16.1 Agreements Between States Settling Claims. Claims may be addressed by 

international agreements between States.181 

 176 See GPW COMMENTARY 125 (“This idea of arranging a meeting of the representatives of the Parties to the 

conflict on neutral territory suitably chosen is very largely the result of experience gained during the First World 

War, when such meetings, which were fairly frequent, led to the conclusion of special agreements on the treatment 

of prisoners of war and on other problems of a humanitarian nature.”).

177 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(1) (“The 

Protecting Powers shall lend their good offices in all cases where they may deem it useful in the interests of cultural 

property, particularly if there is disagreement between the Parties to the conflict as to the application or 

interpretation of the provisions of the present Convention or the Regulations for its execution.”).

178 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(2) (“For this 

purpose, each of the Protecting Powers may, either at the invitation of one Party, of the Director-General of the 

United Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties to 

the conflict a meeting of their representatives, and in particular of the authorities responsible for the protection of 

cultural property, if considered appropriate on suitably chosen neutral territory. The Parties to the conflict shall be 

bound to give effect to the proposals for meeting made to them. The Protecting Powers shall propose for approval 

by the Parties to the conflict a person belonging to a neutral Power or a person presented by the Director-General of 

the United Nations Educational, Scientific and Cultural Organization, which person shall be invited to take part in 

such a meeting in the capacity of Chairman.”).

179 U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, 

with commentaries, art. 1 (2001) (“Every internationally wrongful act of a State entails the international 

responsibility of that State.”); id. at art. 31(1) (“The responsible State is under an obligation to make full reparation 

for the injury caused by the internationally wrongful act.”).

180 HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the case 

demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its 

armed forces.”).

181 For example, GREENSPAN, MODERN LAW OF LAND WARFARE 405 (“A recent example of the obligation of a state 

to pay compensation for war crimes for which it is responsible is the agreement on reparations signed at 

Luxembourg on September 10, 1952, between the Federal Republic of Germany (West Germany) and Israel. This 

agreement, together with the appended protocols, provides for the payment by Western Germany to Israel of 

3,450,000,000 marks ($822,000,000 or £287,000,000) to make good, within the limits of its capacity, the material 

damage caused by the ‘unspeakable criminal acts [which] were perpetrated against the Jewish people during the 
1108

Peace treaties or other agreements concluded in connection with the cessation of 

hostilities have sometimes addressed liability for violations of the law of war committed during 

that conflict.182 Parties to the 1949 Geneva Conventions, however, cannot absolve one another 

of liability for grave breaches of the Geneva Conventions.183

18.16.2 International Claims Commissions. Compensation claims have also been 

addressed by international claims commissions established by agreement by the Parties.184 A 

claims commission may also be established by the U.N. Security Council.

185

 

National Socialist régime of terror.’”) (amendment in original); Dean Acheson, The Secretary of State to the Swiss 

Minister, Oct. 21, 1949, 64 STAT. B1097 (“I have the honor to refer to previous correspondence, and also to oral 

discussions between officials of your Government and the Government of the United States concerning claims 

asserted by your Government for compensation for losses and damages inflicted on persons and property in 

Switzerland during World War II by units of the United States armed forces in violation of neutral rights. On behalf 

of the United States Government, I wish to offer to your Government in full and final settlement of the balance due 

on all claims of the character referred to in the preceding paragraph the sum of 62,176,433.06 Swiss francs, which 

includes interest through October 21, 1949. The offer is made with the understanding that the Swiss Government 

accepts responsibility for making payment of the individual claims involved.”).

182 GREENSPAN, MODERN LAW OF LAND WARFARE 592 (“Even apart from express provision in the peace treaty for 

payment of indemnities or reparations, it will be recalled that compensation is payable in a proper case for violation 

of the rules of warfare. In general, although this last obligation extends beyond the termination of the war, a state 

may provide in the peace treaty for the extinguishment or restriction of its liability in this connection.”).

183 Refer to § 18.9.3 (Grave Breaches of the 1949 Geneva Conventions).

184 For example, Agreement Between the Government of the State of Eritrea and the Government of the Federal 

Democratic Republic of Ethiopia, art. 5(1), Dec. 12, 2000, 2138 UNTS 93, 97 (“Consistent with the Framework 

Agreement, in which the parties commit themselves to addressing the negative socio-economic impact of the crisis 

on the civilian population, including the impact on those persons who have been deported, a neutral Claims 

Commission shall be established. The mandate of the Commission is to decide through binding arbitration all 

claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and 

juridical persons) of one party against the Government of the other party or entities owned or controlled by the other 

party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its 

Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international

humanitarian law, including the 1949 Geneva Conventions, or other violations of international law. The 

Commission shall not hear claims arising from the cost of military operations, preparing for military operations, or 

the use of force, except to the extent that such claims involve violations of international humanitarian law.”); Treaty 

between the United States and Great Britain, art. 1, May 8, 1871, 17 STAT. 863, 863-64 (“Whereas differences have 

arisen between the Government of the United States and the Government of Her Britannic Majesty, and still exist, 

growing out of the Acts committed by the several vessels which have given rise to the claims generically known as 

the ‘Alabama Claims.’ And whereas Her Britannic Majesty has authorized Her High Commissioners and 

Plenipotentiaries to express, in a friendly spirit, the regret felt by Her Majesty’s Government for the escape, under 

whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by 

those vessels: Now, in order to remove and adjust all complaints and claims on the part of the United States, and to 

provide for the speedy settlement of such claims, which are not admitted by Her Britannic Majesty’s Government, 

the High Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels 

and generically known as the ‘Alabama Claims,’ shall be referred to a Tribunal of Arbitration to be composed of 

five Arbitrators, ... .”).

185 U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687, ¶¶ 16-18 (Apr. 3, 1991) (establishing authority 

for the U.N. Compensation Commission to provide a reparation mechanism for violations of international law and 

“any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to 

foreign governments, national and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”).
1109

18.16.3 Payment or Other Compensation Ex Gratia. In some cases, States may provide 

money or other compensation to other States where not legally required (or without an admission 

of legal liability or fault).186 For example, although indemnification is not required for injuries 

or damage incidental to the lawful use of armed force, compensation may be provided as a 

humanitarian gesture.187 Similarly, a State may institute mechanisms to make payments to 

foreign persons who have suffered loss from combat operations, even when no violation of law 

of war has occurred.

18.16.4 No Private Right to Compensation Under Customary International Law or the 

1949 Geneva Conventions. The responsibility of States for violations of the law of war 

committed by their agents is owed to other States.

188 The fact that such responsibility is owed to 

other States reflects the predominately inter-State nature of international obligations.

189 

 186 For example, Communication of the United States Government, Jul. 31, 1945, reprinted in Offer of Ship to 

Replace “Awa Maru,” 13 DEPARTMENT OF STATE BULLETIN 249, 249-50 (Aug. 12, 1945) (“‘The United States 

Government realizes that the deplorable accidental sinking of the Awa Maru prevented the Japanese Government 

from giving immediate effect to its announced intention to continue to facilitate the shipment and distribution of 

relief supplies for Allied nationals. In order, therefore, to assist in overcoming this difficulty the United States 

Government makes the following offer to the Japanese Government, not as present indemnification for the Awa 

Maru (the suggestion having previously been made that owing to the complex nature of the question of indemnity, 

that matter might be deferred until the termination of hostilities) but as a replacement for the Awa Maru in its 

humanitarian service.’ ‘The United States Government is prepared immediately to transfer to the Japanese 

Government a vessel described below of approximately the same size and characteristics as the Awa Maru, 

conditioned upon the express agreement by the Japanese Government to use the vessel so transferred for the 

following purposes and no others ... .’”).

187 For example, Abraham Sofaer, Legal Adviser, Department of State, Compensation for Iranian Airbus Tragedy, 

88 DEPARTMENT OF STATE BULLETIN 58 (Oct. 1988) (“Principles of international law that govern potential liability 

for injuries and property damage arising out of military operations are generally well-established. First,

indemnification is not required for injuries or damage incidental to the lawful use of armed force. Second,

indemnification is required where the exercise of armed force is unlawful. Third, states may, nevertheless, pay 

compensation ex gratia without acknowledging, and irrespective of, legal liability. ... In the case of the Iran Air 

incident, the damage caused in firing upon #655 was incidental to the lawful use of force. The Government of Iran 

should not have allowed gunboats to attack our vessels and aircraft. That government also should not have allowed 

a passenger airline to fly over a battle zone—especially not unless it was equipped and prepared to respond to our 

Navy’s repeated warnings. The commander of the U.S.S. Vincennes evidently believed that his ship was under 

imminent threat of attack from a hostile aircraft, and he attempted repeatedly to identify or contact the aircraft before 

taking defensive action. Therefore, the United States does not accept legal responsibility for this incident and is not 

paying ‘reparations,’ a word which implies wrongdoing and is often associated with wartime activities. Instead, the 

President has decided to make an ex gratia payment as a humanitarian gesture to the families of the individuals who 

were on #655.”).

188 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 789 footnote 14 (1950) (“We are not holding that these prisoners 

have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of 

July 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement 

upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, 

however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is 

upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and 

intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by 

Presidential intervention.”); Juragua Iron Co. v. United States, 212 U.S. 297, 308 (1909) (“It is true that the army, 

under General Miles, was under a duty to observe the rules governing the conduct of independent nations when 

engaged in war — a duty for the proper performance of which the United States may have been responsible in its 

political capacity to the enemy government.”).

189 Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).
1110

Customary international law and the 1949 Geneva Conventions do not provide a private right for 

individuals to claim compensation directly from a State; rather, such claims are made by other 

States.190

18.17 RETORSION

Retorsion is one of the measures that an injured party may use to seek to persuade an 

adversary to cease violations of the law of war. 

Retorsion may be understood to mean unfriendly conduct, (1) which is not inconsistent 

with any international obligation of the State engaging in it, and (2) which is done in response to 

an internationally wrongful act.191 Retorsion is frequently contrasted with reprisal, which 

involves measures that would otherwise be unlawful.192 

Because retorsion, by definition, does not involve the resort to actions that would 

ordinarily be characterized as illegal, the stringent conditions that apply to reprisal do not apply 

to retorsion.193

Retorsion is a general remedy available to States under international law and is not 

specific to the law of war. Retorsion might be used by States before, or in connection with, 

military operations (e.g., an economic embargo). Retorsion, however, could also be used to seek 

to compel an adversary to adhere to the law of war.

18.18 REPRISALS

Reprisals are extreme measures of coercion used to help enforce the law of war by 

seeking to persuade an adversary to cease violations.

 190 GC COMMENTARY 211 (“One other point should be made clear. The Convention does not give individual men 

and women the right to claim compensation. The State is answerable to another contracting State and not to the 

individual. On that point the recognized system was not in any way modified in 1949.”); GC COMMENTARY 603 

(“As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law stands 

today, that claimants should be able to bring a direct action for damages against the State in whose service the 

person committing the breach was working. Only a State can make such claims on another State, and they form 

part, in general, of what is called ‘war reparations.’”).

191 See U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful 

Acts, with commentaries, 128 (2001) (“Countermeasures are to be contrasted with retorsion, i.e. ‘unfriendly’ conduct 

which is not inconsistent with any international obligation of the State engaging in it even though it may be a 

response to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations upon 

normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid 

programmes.”); GWS COMMENTARY 342 (“A distinction is generally made between reprisals and retortion; the 

latter is also a form of retaliation, but the measures taken do not break the law, and are in reply to acts which are 

themselves generally admitted to be lawful. The acts in question on both sides are matters within the competence of 

the States concerned. A case of retortion would, for example, be the withdrawal by one belligerent from retained 

personnel of privileges accorded over and above those accorded under the convention, where the adverse Party had 

withdrawn privileges, whether in the same or in another connection, from the corresponding personnel in his 

hands.”).

192 Refer to § 18.18.1.2 (Acts That Would Otherwise Be Unlawful).

193 Refer to § 18.18.2 (Conditions for Lawful Reprisals).
1111

States may resort to reprisals only when certain conditions are met. In addition, there are 

certain treaty prohibitions on reprisal, and practical considerations may counsel against their use.

18.18.1 Definition of Reprisal. Reprisals are acts taken against a party: (1) that would 

otherwise be unlawful; (2) in order to persuade that party to cease violating the law.194 

For example, during the Civil War, the United States authorized reprisals against 

Confederate forces for murdering and enslaving captured Union soldiers.195 Reprisals against 

POWs are now prohibited.196

18.18.1.1 Reprisal – Notes on Terminology. Some older sources used “reprisal”

in a narrower sense only to refer to taking possession of property of the enemy in response to 

violations of the law of war.197 Some older sources used the term “retaliation” to describe what 

is now commonly understood to be “reprisal.”198

The term “countermeasures” is sometimes used to cover that part of the subject of 

reprisals not associated with armed conflict, with the term “reprisals” or “belligerent reprisals”

sometimes reserved for action taken during international armed conflict.199

 194 See GC COMMENTARY 227 (“Reprisals are measures contrary to law, but which, when taken by one State with 

regard to another State to ensure the cessation of certain acts or to obtain compensation for them, are considered as 

lawful in the particular conditions under which they are carried out.”); United States v. Ohlendorf, et al. 

(Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE NMT 493 (“Reprisals in war are the 

commission of acts which, although illegal in themselves, may, under the specific circumstances of the given case, 

become justified because the guilty adversary has himself behaved illegally, and the action is taken in last resort, in 

order to prevent the adversary from behaving illegally in the future.”).

195 Abraham Lincoln, General Order No. 252, Jul. 31, 1863, reprinted in Thos. M. O’Brien & Oliver Diefendorf, 

UNITED STATES WAR DEPARTMENT, II GENERAL ORDERS OF THE WAR DEPARTMENT, EMBRACING THE YEARS 1861,

1862 & 1863, 323 (1864) (“It is the duty of every government to give protection to its citizens, of whatever class, 

color, or condition, and especially to those who are duly organized as soldiers in the public service. The law of 

nations and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in the 

treatment of prisoners of war as public enemies. To sell or enslave any captured person on account of his color, and 

for no offense against the laws of war, is a relapse into barbarism and a crime against the civilization of the age. The 

Government of the United States will give the same protection to all its soldiers, and if the enemy shall sell or 

enslave anyone because of his color the offense shall be punished by retaliation upon the enemy’s prisoners in our 

possession. It is therefore ordered, That for every soldier of the United States killed in violation of the laws of war a 

rebel soldier shall be executed, and for every one enslaved by the enemy or sold into slavery a rebel soldier shall be 

placed at hard labor on the public works and continued at such labor until the other shall be released and receive the 

treatment due to a prisoner of war.”).

196 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

197 See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 798 (“Reprisal. This further method, above specified, 

consists in the taking possession of property of the enemy or of his subjects, to be held as indemnity for injury 

inflicted in violation of the laws of war, or as security till a pecuniary indemnity be duly rendered.”).

198 LIEBER CODE art. 27 (“The law of war can no more wholly dispense with retaliation than can the law of nations, 

of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless 

enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous 

outrage.”).

199 U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, 

with commentaries, 128 (2001) (“As to terminology, traditionally the term ‘reprisals’ was used to cover otherwise 
1112

18.18.1.2 Acts That Would Otherwise Be Unlawful. Reprisals involve acts that 

would otherwise be unlawful. For example, responding to illegal enemy action by withdrawing 

benefits extended to the enemy where such benefits are not legally required would not be 

characterized as a reprisal. Rather, such action would be characterized as retorsion, i.e., 

unfriendly conduct that is not inconsistent with any international obligation of the State engaging 

in it even though it may be a response to an internationally wrongful act.200

18.18.1.3 In Order to Persuade a Party to Cease Violating the Law. Reprisals are 

intended to influence a party to cease committing violations at present and in the future. 

Reprisals are not revenge or collective punishment.

18.18.2 Conditions for Lawful Reprisals. Customary international law permits reprisals, 

subject to certain conditions.

18.18.2.1 Careful Inquiry That Reprisals Are Justified. Reprisals shall be resorted 

to only after a careful inquiry into the facts to determine that the enemy has, in fact, violated the 

law.201 In many cases, whether a law of war rule has been violated will not be apparent to the 

opposing side or outside observers. For example, a bombardment that results in the death of 

civilians may be the result of good faith, reasonable, mistake or may have been justified by the 

importance of destroying the military objective against which the bombardment was directed.

18.18.2.2 Exhaustion of Other Means of Securing the Adversary’s Compliance 

With the Law of War. Other means of securing compliance with the law of war should be 

exhausted before resorting to reprisals.202 For example, consideration should be given to using 

protests and demands, retorsion, or reasonable notice of the threat to use reprisals before 

resorting to reprisals.203 

18.18.2.3 National-Level Authorization for Reprisal. Reprisals require a variety 

of conditions and implicate the rights and duties of a State under international law.204 Thus, the 

 

unlawful action, including forcible action, taken by way of self-help in response to a breach. More recently, the 

term ‘reprisals’ has been limited to action taken in time of international armed conflict; i.e. it has been taken as 

equivalent to belligerent reprisals. The term ‘countermeasures’ covers that part of the subject of reprisals not 

associated with armed conflict, and in accordance with modern practice and judicial decisions the term is used in 

that sense in this chapter.”).

200 Refer to § 18.17 (Retorsion).

201 LIEBER CODE art. 28 (“Retaliation will therefore never be resorted to as a measure of mere revenge, but only as a 

means of protective retribution, and moreover cautiously and unavoidably -- that is to say, retaliation shall only be 

resorted to after careful inquiry into the real occurrence and the character of the misdeeds that may demand 

retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules 

of regular war, and by rapid steps leads them nearer to the internecine wars of savages.”).

202 1956 FM 27-10 (Change No. 1 1976) ¶497b (“Priority of Other Remedies. Other means of securing compliance 

with the law of war should normally be exhausted before resort is had to reprisals. This course should be pursued 

unless the safety of the troops requires immediate drastic action and the persons who actually committed the 

offenses cannot be secured.”).

203 Refer to § 18.10 (Methods for Responding to Violations of the Law of War by the Enemy).

204 See Trial of Hans Albin Rauter, Judgment, XIV U.N. LAW REPORTS 89, 132 (Netherlands Special Court of 

Cassation, Jan. 12, 1949) (“In the proper sense one can speak of reprisals only when a State resorts, by means of its 
1113

authority to conduct reprisal is generally held at the national level.

205 Service members and units 

are not to take reprisal action on their own initiative. 

18.18.2.4 Proportionality in Reprisal. To be legal, reprisals must respond in a 

proportionate manner to the preceding illegal act by the party against which they are taken.206 

Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are 

not involved.207

However, the acts resorted to by way of reprisal need not be identical nor of the same 

type as the violations committed by the enemy. A reprisal should not be unreasonable or 

excessive compared to the adversary’s violation.

208

18.18.2.5 Public Announcement of Reprisals. In order to fulfill their purpose of 

dissuading the adversary from further illegal conduct, reprisals must be made public and 

 

organs, to measures at variance with International Law, on account of the fact that its opponent—in this case the 

State with which it is at war—had begun, by means of one or more of its organs, to commit acts contrary to 

International Law, quite irrespective of the question as to what organ this may have been, Government or legislator, 

Commander of the Fleet, Commander of Land Forces, or of the Air Force, diplomat or colonial governor. The 

measures which the appellant describes ... as ‘reprisals’ bear an entirely different character, they are indeed 

retaliatory measures taken in time of war by the occupant of enemy territory as a retaliation not of unlawful acts of 

the State with which he is at war, but of hostile acts of the population of the territory in question or of individual 

members thereof, which, in accordance with the rights of occupation, he is not bound to suffer. Both types of 

‘reprisals’ have this in common, that the right to take genuine reprisals as well as the alleged competence to take so 

called ‘reprisals’ may in principle belong only to the State which applies them, ... .”) (first ellipsis in original).

205 For example, 2004 UK MANUAL ¶16.19.2 (“This means that reprisals taken in accordance with the statement are 

permissible by and against the United Kingdom. However, commanders and commanders-in-chief are not to take 

reprisal action on their own initiative. Requests for authority to take reprisal action must be submitted to the 

Ministry of Defence and require clearance at Cabinet level.”).

206 Refer to § 2.4 (Proportionality).

207 Larry A. Hammond, Deputy Assistant Attorney General, Possible Participation by the United States in Islamic 

Republic of Iran v. Pahlavi, 4A OPINIONS OF THE OFFICE OF LEGAL COUNSEL 160, 163 (1980) (“Customary 

international law allows reprisals, which are breaches of a treaty’s terms in response to a breach by another party. 

To be legal, reprisals must respond in a proportionate manner to a preceding illegal act by the party against whom 

they are taken. Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are not 

involved. Thus, in the current crisis, the taking of Iranian diplomats as ‘hostages’ (or a lesser restriction on their 

freedom of movement that approaches imprisonment) would clearly be a proportionate response; reducing the 

immunity of Iranian diplomats from criminal prosecution would be more difficult to justify.”).

208 See Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928, reprinted and translated in

WILLIAM W. BISHOP, INTERNATIONAL LAW: CASES AND MATERIALS 904 (1971) (“The necessity of a proportion 

between the reprisals and the offense would appear to be recognized in the German answer. Even if one admitted 

that international law does not require that the reprisal be approximately measured by the offense, one should 

certainly consider as excessive, and thus illegal, reprisals out of all proportion with the act which motivated them. 

Now in this case ... there has been evident disproportion between the incident of Naulilaa and the six acts of reprisals 

which followed it. The arbiters conclude that the German aggressions of October, November and December, 1914, 

on the Angola frontier, cannot be considered as lawful reprisals for the Naulilaa incident ... , in view of the lack of 

sufficient occasion, of previous demand and of admissible proportion between the alleged offense and the reprisals 

taken.”) (ellipses in original).
1114

announced as such.209

18.18.3 Treaty Prohibitions on Reprisals. Although reprisals are generally permissible 

under customary international law, certain treaties have prohibited certain types of reprisals. 

18.18.3.1 Reprisals Prohibited by the CCW Amended Mines Protocol. It is 

prohibited in all circumstances to direct mines, booby-traps, and other devices, either in offense, 

defense, or by way of reprisals, against the civilian population as such or against individual 

civilians or civilian objects.210

18.18.3.2 Reprisals Prohibited by the 1949 Geneva Conventions. Reprisals 

against the wounded, sick, or shipwrecked persons, personnel, buildings, vessels, or equipment 

protected by the GWS or GWS-Sea are prohibited.211 Such persons or property would include: 

• combatant personnel who are wounded, sick, or shipwrecked;

212

• medical personnel and chaplains;

213

• medical units and facilities;214 and

• hospital ships.215

Measures of reprisal against POWs are prohibited.216

 209 Trial of Richard Wilhem Hermann Bruns and two others, III U.N. LAW REPORTS 15, 19 (By the Eidsivating 

Lagmannstrett and The Supreme Court of Norway, Mar. 20-Jul. 3, 1946) (“Reprisals were generally understood to 

aim at changing the adversary’s conduct and forcing him to keep the general accepted rules of lawful warfare. If 

this aim were to be achieved, the reprisals must be made public and announced as such.”).

210 CCW AMENDED MINES PROTOCOL art. 3(7) (“It is prohibited in all circumstances to direct weapons to which this 

Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against 

individual civilians or civilian objects.”).

211 GWS art. 46 (“Reprisals against the wounded, sick, personnel, buildings or equipment protected by the 

Convention are prohibited.”); GWS-SEA art. 47 (“Reprisals against the wounded, sick and shipwrecked persons, the 

personnel, the vessels or the equipment protected by the Convention are prohibited.”).

212 Refer to § 7.3.1 (Definitions of Wounded, Sick, and Shipwrecked).

213 Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel).

214 Refer to § 7.10 (Military Medical Units and Facilities).

215 Refer to § 7.12.1 (Types of Hospital Ships and Coastal Rescue Craft).

216 GPW art. 13 (“Measures of reprisal against prisoners of war are prohibited.”); The Dostler Case, Trial of General 

Anton Dostler, I U.N. LAW REPORTS 22, 31 (U.S. Military Commission, Rome, Oct. 8-12, 1945) (“under the law as 

codified by the 1929 Convention there can be no legitimate reprisals against prisoners of war. No soldier, and still 

less a Commanding General, can be heard to say that he considered the summary shooting of prisoners of war 

legitimate even as a reprisal.”); Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions,

Oct. 13, 1942, HANSARD, 383 HOUSE OF COMMONS DEBATES § 1501 (“The Geneva Convention upon the treatment 

of prisoners of war does not attempt to regulate what happens in the actual fighting. It is confined solely to the 

treatment of prisoners who have been securely captured and are in the responsible charge of the hostile Government. 

Both His Majesty’s Government and the German Government are bound by this Convention. The German 
1115

Reprisals against protected persons under the GC and their property are prohibited.

217

18.18.3.3 Reprisals Prohibited by the 1954 Hague Cultural Property Convention. 

Parties to the 1954 Hague Cultural Property Convention shall refrain from any act directed by 

way of reprisals against cultural property.

218 Cultural property is defined in the 1954 Hague 

Cultural Property Convention.219

18.18.3.4 AP I Provisions on Reprisals. AP I prohibits attacks by way of reprisal 

against:

• the civilian population or civilians;220

• civilian objects;221

• objects indispensable to the survival of the civilian population such as foodstuffs, crops, 

livestock, drinking water installations and supplies, and irrigation works;222

• the natural environment;223 and

• works and installations containing dangerous forces, namely dams, dykes, and nuclear 

electrical generating systems.224

The United States has expressed the view that AP I’s provisions on reprisal are counter-

 Government by throwing into chains 1,370 British prisoners of war for whose proper treatment they are responsible 

have violated Article 2 of the aforesaid Convention. They are thus attempting to use prisoners of war as if they were 

hostages upon whom reprisals can be taken for occurrences on the field of battle with which the said prisoners can 

have had nothing to do. This action of the German Government affronts the sanctity of the Geneva Convention 

which His Majesty’s Government have always been anxious to observe punctiliously.”). Refer to § 9.3.2 (Persons 

Entitled to POW Status).

217 GC art. 33 (“Reprisals against protected persons and their property are prohibited.”). Refer to § 10.3 (Protected 

Person Status).

218 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(4) (“They [High Contracting Parties] shall refrain from 

any act directed by way of reprisals against cultural property.”).

219 Refer to § 5.18.1 (Definition of Cultural Property).

220 AP I art. 51(6) (“Attacks against the civilian population or civilians by way of reprisals are prohibited.”).

221 AP I art. 52 (“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects 

which are not military objectives as defined in paragraph 2.”).

222 AP I art. 54 (“2. ...objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural 

areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation 

works... 4. These objects shall not be made the object of reprisals.”).

223 AP I art. 55(2) (“Attacks against the natural environment by way of reprisals are prohibited.”).

224 AP I art. 56(1) (“Works or installations containing dangerous forces, namely dams, dykes and nuclear energy 

generating stations, shall not be made the object of attack, even where these objects are military objectives, if such 

attack may cause the release of dangerous forces and consequent severe losses among the civilian population.”); AP 

I art. 56(4) (“It is prohibited to make any of the works, installations or military objects mentioned in paragraph 1 the 

object of reprisals.”).
1116

productive and that they remove a significant deterrent that protects civilians and war victims on 

all sides of a conflict.225 The United Kingdom has taken a reservation to AP I’s prohibition on 

certain attacks by way of reprisal.226 Egypt, Germany, and Italy also reserved the right to react 

to serious violations of AP I with any means permitted by international law to prevent further 

violations.227 France has declared that it will apply the provisions of paragraph 8 of Article 51 

insofar as their interpretation does not constitute an obstacle to the use, according to international 

law, of the means which it considers indispensable for the protection of its civilian population 

against grave, clear and deliberate violations of the 1949 Geneva Conventions and of AP I by the 

enemy.228

 225 The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. Sofaer, 

Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF 

INTERNATIONAL LAW AND POLICY 460, 469 (1987) (“To take another example, article 51 of Protocol I prohibits any 

reprisal attacks against the civilian population, that is, attacks that would otherwise be forbidden but that are in 

response to the enemy's own violations of the law and are intended to deter future violations. Historically, 

reciprocity has been the major sanction underlying the laws of war. If article 51 were to come into force for the 

United States, an enemy could deliberately carry out attacks against friendly civilian populations, and the United 

States would be legally forbidden to reply in kind. As a practical matter, the United States might, for political or 

humanitarian reasons, decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly 

civilian populations. To formally renounce even the option of such attacks, however, removes a significant deterrent 

that presently protects civilians and other war victims on all sides of a conflict.”).

226 United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77-78 (“(m) Re: Articles 51-

55 The obligations of Article 51 and 55 are accepted on the basis that any adverse party against which the United 

Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and 

deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against 

civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those articles, the United 

Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent 

that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing 

violations under those Articles, but only after formal warning to the adverse party requiring cessation of the 

violations has been disregarded and then only after a decision taken at the highest level of government. Any 

measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and 

will not involve any action prohibited by the Geneva Conventions of 1949, nor will such measures be continued 

after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning 

given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.”).

227 Egypt, Statement on Ratification of AP I, Oct. 9, 1992, 1712 UNTS 435, 439 (“The Arab Republic of Egypt, 

while declaring its commitment to respecting all the provisions of Protocols Additional I and II, wishes to 

emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the 

obligations imposed by Protocols Additional I and II with all means admissible under international law in order to 

prevent any further violation.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529 

(“The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed 

by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in 

order to prevent any further violation.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 

440 (“Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional 

Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to 

prevent any further violation.”).

228 France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: 

A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800, 801 (2004) (“The Government of 

the French Republic declares that it will apply the provisions of paragraph 8 of Article 51 insofar as their 

interpretation does not constitute an obstacle to the use, according to international law, of the means which it 

considers indispensable for the protection of its civilian population against grave, clear and deliberate violations of 

the Geneva Conventions and of the Protocol by the enemy.”).
1117

18.18.4 Practical Considerations in the Use of Reprisals. Apart from the strict legal 

requirements for the resort to reprisal, it will be important to consider the potential practical 

consequences of the use of reprisals that may counsel strongly against taking such measures. 

Practical considerations, including longer-term military or political consequences, may include 

the following factors:

• Taking reprisals may divert valuable and scarce military resources from the military 

struggle and may not be as effective militarily as steady adherence to the law.

• Reprisals will usually have an adverse impact on the attitudes of governments not 

participating in the conflict.

• Reprisals may only strengthen enemy morale and will to resist.

• Reprisals frequently lead only to further unwanted escalation of the conflict by an 

adversary or a vicious cycle of counter-reprisals.

• Reprisals may render resources of an adversary less able to contribute to the 

rehabilitation of an area after the cessation of hostilities.229

18.19 DISCIPLINE IN NATIONAL JURISDICTIONS OF INDIVIDUALS FOR VIOLATIONS OF THE LAW OF 

WAR

In most cases, individuals are disciplined in national jurisdictions for violations of the law 

of war. Corrective action may take the form of adverse or corrective administrative actions. 

Punishment may take the form of non-judicial punishment or judicial actions in military or 

civilian courts, depending on the circumstances. In some cases, prosecutions in national courts 

are carried out by charging violations of domestic law, but in other cases, prosecutions are 

carried out by charging violations of international law.

18.19.1 Non-Judicial Punishment and Adverse or Corrective Administrative Actions. In 

some cases, it may be appropriate to administer non-judicial punishment in order to punish and 

repress violations of the law of war. Non-judicial punishment of members of the armed forces is 

 229 1976 AIR FORCE PAMPHLET 110-31 ¶10-7d (“In addition to the legal requirements which regulate resort to 

reprisals, there are various practical factors which governments will consider before taking reprisals. The relative 

importance of these factors depends upon the degree and kind of armed conflict, the character of the adversary and 

its resources, and the importance of states not participating in hostilities. These considerations including the 

following: (1) Taking reprisals may divert valuable and scarce military resources from the military struggle and 

may not be as effective militarily as steady adherence to the law. (2) Reprisals will usually have an adverse impact 

on the attitudes of governments not participating in the conflict. (3) Reprisals may only strengthen enemy morale 

and will to resist. (4) Reprisals frequently lead only to further unwanted escalation of the conflict by an adversary. 

Accordingly, an adversary’s ability to retaliate is an important factor. (5) Reprisals may render resources of an 

adversary less able to contribute to the rehabilitation of an area after the cessation of hostilities. (6) The threat of 

reprisals is usually more effective than their actual use. (7) Reprisals, to be effective, should be carried out speedily 

and must be kept under control. They will be ineffective if random, excessive or prolonged. (8) In any event, the 

decision to employ reprisals would be reached only as a matter of specific national policy. The immediate 

advantage sought, which is to stop current and deter future violations of the law by an adversary, must be weighed 

against the long range military and political consequences.”).
1118

authorized under the Uniform Code of Military Justice.

230

In some cases, it may be appropriate to take adverse or corrective administrative action to 

repress violations of the law of war. Adverse and corrective administrative action for members 

of the armed forces is authorized by military regulations.231

18.19.2 Charging of Domestic Prosecutions as Violations of International Law or 

Domestic Law. In some cases, prosecutions in national courts for conduct constituting violations

of the law of war are carried out by charging violations of ordinary domestic law or military law, 

and in other cases, such prosecutions are carried out by charging violations of international law. 

For example, the murder of a POW may be prosecuted under the ordinary criminal statutes 

prohibiting murder. On the other hand, the same conduct may be prosecuted under special 

criminal statutes that are framed in terms of “war crimes.”232

The United States has no international law obligation to prosecute an offense as a “war 

crime” as opposed to an ordinary criminal offense.

Prosecutions in national courts remain domestic prosecutions for violations of domestic 

statutes, even when those domestic statutes were enacted pursuant to treaty obligations or are 

framed in terms of violations of international law (e.g., war crimes).

In general, prosecutions of war crimes as such (i.e., characterized as international law 

violations as opposed to violations of domestic law) have only been undertaken when a State 

seeks to punish enemy nationals or persons serving the interests of the enemy State. When 

members of a State’s armed forces or other personnel violate the law of war, that State generally 

prosecutes those persons for offenses under ordinary domestic law or military law.233

 230 10 U.S.C. § 815.

231 See, e.g., MARINE CORPS ORDER P1900.16F, Change 2, Marine Corps Separation and Retirement Manual (Jun. 

6, 2007) (providing general and specific bases, and procedures for involuntary administrative separations); 

DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7F, Manual of the Judge Advocate 

General, §§ 0102-0105 (Jun. 26, 2012) (providing regulations for non-punitive administrative measures).

232 Refer to § 18.19.3.8 (War Crimes Act).

233 For example, GARY SOLIS, MARINES AND MILITARY LAW IN VIETNAM: TRIAL BY FIRE 32-33 (1989) (“No 

Marine was charged with the commission of a war crime, as such, in Vietnam. Rather, any ‘violation of the law of 

war’ committed by a Marine against a Vietnamese was charged as a violation of the UCMJ. For example, the 

murder of a civilian noncombatant was charged as a violation of Article 118, murder, rather than as a war crime in 

violation of the Geneva or Hague conventions.”); 1956 FM 27-10 (Change No. 1 1976) ¶507b (“The United States 

normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the 

interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the 

United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted 

under that Code. Violations of the law of war committed within the United States by other persons will usually 

constitute violations of federal or state criminal law and preferably will be prosecuted under such law (see pars. 505 

and 506).”); The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel 

Commission), Second Report, Israel’s Mechanisms for Examining and Investigating Complaints and Claims of 

Violations of the Laws of Armed Conflict According to International Law, 171 (Feb. 2013) (“As in the US, the 

charging practice in Canada appears to be to prosecute violations of the law of armed conflict by members of the 

armed forces as general criminal law offenses or military offenses under the Code of Service Discipline, rather than 
1119

18.19.3 U.S. Law That Can Be Used to Punish Violations of the Law of War. A number 

of U.S. statutes may be used to punish acts that constitute violations of the law of war. When 

violations of the law of war are committed within the United States, such acts usually constitute 

violations of Federal and State law and generally may be prosecuted under ordinary criminal 

statutes. However, a number of other Federal statutes may be used to prosecute conduct that 

violates the law of war, even though that conduct does not occur within the United States. The 

application of any particular statute depends on the terms of that statute and the facts of a 

particular case.

18.19.3.1 Uniform Code of Military Justice Offenses. The principal way for the 

United States to punish members of the U.S. armed forces for violations of the law of war is 

through the Uniform Code of Military Justice.

Certain persons may be tried for violations of the Uniform Code of Military Justice, 

including, among others:

• members of a regular component of the U.S. armed forces;

• POWs in the custody of the U.S. armed forces;

• in time of declared war or contingency operations, persons serving with or accompanying 

an armed force in the field; and 

• individuals belonging to one of the eight categories enumerated in Article 4 of the GPW 

who violate the law of war.234

Offenses under the Uniform Code of Military Justice that may be used to punish conduct 

that constitutes a violation of the law of war include, among others:

• cruelty and maltreatment;235

• murder;

236

 

as specific offenses relating to the law of armed conflict.”). Compare § 18.7.3 (Enforcement of Law of War 

Obligations Through Military Instructions, Regulations, and Procedures).

234 10 U.S.C. § 802 (“(a) The following persons are subject to this chapter: (1) Members of a regular component of 

the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from 

the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into 

the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, 

from the dates when they are required by the terms of the call or order to obey it. ... (9) Prisoners of war in custody 

of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying 

an armed force in the field. ... (13) Individuals belonging to one of the eight categories enumerated in Article 4 of 

the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who 

violate the law of war.”).

235 10 U.S.C. § 893 (“Any person subject to this chapter who is guilty of cruelty toward, or oppression or 

maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.”).

236 10 U.S.C. § 918.
1120

• rape and sexual assault;

237

• failure to obey order or regulation;238 and

• conduct prejudicial to good order and discipline.239

18.19.3.2 Incorporation of Other Non-Capital Crimes and Offenses in the 

Uniform Code of Military Justice. Under the Uniform Code of Military Justice, “all disorders 

and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a 

nature to bring discredit upon the armed forces, and crimes and offenses not capital,” of which 

persons subject to the Uniform Code of Military Justice may be guilty, shall be taken cognizance 

of by a general, special, or summary court-martial, according to the nature and degree of the 

offense, and shall be punished at the discretion of that court.240

This provision may also be used to prosecute conduct that violates the law of war. 

However, the preemption doctrine prohibits application of this provision to conduct already 

covered by specific offenses in the Uniform Code of Military Justice.

241

18.19.3.3 U.S. General Court-Martial Jurisdiction to Try and Punish Persons 

Under the Law of War. Under the Uniform Code of Military Justice, general courts-martial also 

have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal 

and may adjudge any punishment permitted by the law of war.

242 For example, this authority 

 237 10 U.S.C. § 920.

238 See 10 U.S.C. § 892 (“Any person subject to this chapter who—(1) violates or fails to obey any lawful general 

order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which 

it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a 

court-martial may direct.”); 10 U.S.C. § 890 (“Any person subject to this chapter who— ... (2) willfully disobeys a 

lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war, 

by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, 

by such punishment, other than death, as a court-martial may direct.”).

239 10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of 

good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and 

crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of 

by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be 

punished at the discretion of that court.”).

240 10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of 

good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and 

crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of 

by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be 

punished at the discretion of that court.”).

241 MANUAL FOR COURTS-MARTIAL IV-102 (¶60.c.(5)(a)) (2012) (“The preemption doctrine prohibits application of 

Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an 

element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either

under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of 

larceny offense, one without the required intent, where Congress has already set the minimum requirements for such 

an offense in Article 121.”).

242 10 U.S.C. § 818 (“General courts-martial also have jurisdiction to try any person who by the law of war is subject 

to trial by a military tribunal and may adjudge any punishment permitted by the law of war.”).
1121

could be used to try enemy combatants for violations of the law of war, because such trials are 

permitted by the law of war.

18.19.3.4 Title 18 Federal Crimes Punishing Conduct Outside the United States. 

Certain Federal statutes specify that they apply to conduct outside the United States and could be 

used to prosecute conduct that, in some circumstances, would constitute a violation of the law of 

war. These statutes may specify in detail the circumstances in which they authorize prosecution, 

which may vary from statute to statute.

These statutes include provisions prohibiting:

• torture;

243

• genocide;244

• murder or manslaughter of foreign officials, official guests, or internationally protected 

persons;245

• piracy;246

• acts of terrorism and material support to terrorists;247

• certain acts involving biological weapons;

248

• certain acts involving chemical weapons;

249 and

• certain acts involving nuclear weapons.250 

18.19.3.5 Extraterritorial Application of Certain Federal Offenses Through 

MEJA. U.S. law makes special provision for certain conduct that is committed outside the 

United States to be prosecuted as though it were committed inside the United States. 

U.S. law, under the Military Extraterritorial Jurisdiction Act (MEJA), permits the United 

States to prosecute individuals who committed certain offenses outside the United States (i) 

 243 See 18 U.S.C. § 2340A(a) (“Whoever outside the United States commits or attempts to commit torture shall be 

fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct 

prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”).

244 18 U.S.C. § 1091.

245 18 U.S.C. § 1116.

246 18 U.S.C. § 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and 

is afterwards brought into or found in the United States, shall be imprisoned for life.”).

247 18 U.S.C. §§ 2332b, 2339A, 2339B.

248 18 U.S.C. § 175.

249 18 U.S.C. § 229.

250 18 U.S.C. § 831.
1122

while employed by or accompanying the U.S. armed forces overseas; or (ii) while a member of 

the U.S. armed forces subject to the Uniform Code of Military Justice.

251 MEJA cannot be used 

against a member of the Armed Forces who is subject to the Uniform Code of Military Justice

unless (i) such member ceases to be subject to the Uniform Code of Military Justice; or (ii) an 

indictment or information charges that the member committed the offense with one or more other 

defendants, at least one of whom is not subject to the Uniform Code of Military Justice.

252 

Provisions of MEJA have been implemented through DoD regulations.253

Among other things, MEJA provides a way for U.S. domestic law to be used to punish 

conduct that violates the law of war. For example, under MEJA, a former service member could 

be prosecuted for a murder committed while a member of the armed forces during armed conflict 

abroad, even though Uniform Code of Military Justice jurisdiction over that person has 

ceased.254

18.19.3.6 Special Maritime and Territorial Jurisdiction of the United States 

Under Title 18. U.S. law provides for certain offenses to be prosecuted if they are committed in 

the special maritime and territorial jurisdiction of the United States.255 Such jurisdiction may 

 251 18 U.S.C. § 3261(a) (“Whoever engages in conduct outside the United States that would constitute an offense 

punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime 

and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed Forces outside 

the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of 

Military Justice), shall be punished as provided for that offense.”).

252 18 U.S.C. § 3261(d) (“No prosecution may be commenced against a member of the Armed Forces subject to 

chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—(1) such member ceases to 

be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with 

one or more other defendants, at least one of whom is not subject to such chapter.”).

253 DOD INSTRUCTION 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed 

Forces Outside the United States, Certain Service Members, and Former Service Members, ¶2.5 (Mar. 3, 2005) 

(“This Instruction: 1.1. Implements policies and procedures, and assigns responsibilities, under the “Military 

Extraterritorial Jurisdiction Act of 2000,” as amended by Section 1088 of the “Ronald W. Reagan National Defense 

Authorization Act for Fiscal Year 2005” (reference (a)) (hereinafter the “Act”) for exercising extraterritorial 

criminal jurisdiction over certain current and former members of the U.S. Armed Forces, and over civilians 

employed by or accompanying the U.S. Armed Forces outside the United States. 1.2. Implements Section 3266 of 

the Act.”).

254 See, e.g., United States v. Green, 654 F.3d 637, 640-41 (6th Cir. 2011) (“Steven D. Green was convicted and 

sentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an 

infantryman in the United States Army. Before senior Army officials became aware that Green and three fellow 

servicemembers were involved in these crimes, Green was discharged due to a personality disorder. When officials 

discovered Green’s involvement in the crimes, his three coconspirators were still on active duty in the Army and 

thus subject to the Uniform Code of Military Justice. They were tried by courts-martial and each sentenced to 

between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army 

had no authority to court-martial Green because he had already been discharged. Thus, civilian prosecutors charged 

Green under the Military Extraterritorial Jurisdiction Act, which extends federal criminal jurisdiction to persons who 

commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction. A 

federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court 

sentenced him to five consecutive life sentences.”).

255 See, e.g., 18 U.S.C. § 1111 (“(b) Within the special maritime and territorial jurisdiction of the United States, 

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is 

guilty of murder in the second degree, shall be imprisoned for any term of years or for life.”).
1123

include, for example, offenses committed by U.S. nationals on the premises of U.S. diplomatic, 

consular, military, or other U.S. Government missions or entities in foreign States.256 This 

jurisdiction provides another method by which U.S. law may be used to punish conduct that 

violates the law of war.257

18.19.3.7 U.S. Military Commissions. U.S. statutes authorize the prosecution of 

alien unprivileged enemy belligerents for certain offenses.258 The Secretary of Defense has 

promulgated additional rules of procedure and rules of evidence applicable to such 

proceedings.259

In the past, military commissions have been used by the United States and other States to 

prosecute enemy belligerents for violations of the law of war and for acts of unprivileged 

belligerency. Military commissions have also been used for the trial of offenses under U.S. law 

where local courts were not open and acting (i.e., where martial law applies), and for the trial of 

violations of occupation ordinances. These military commissions have been regarded as 

instrumentalities for the more efficient execution of the war powers vested in Congress and the 

power vested in the President as Commander-in-chief in war.260 Military commissions have 

been used instead of courts-martial because U.S. courts-martial have been adapted to the 

circumstances of disciplining members of the armed forces and have not been crafted with a 

view towards certain other offenses that are also committed during armed conflict.261

 256 18 U.S.C. § 7 (“The term ‘special maritime and territorial jurisdiction of the United States’, as used in this title, 

includes: ... (9) With respect to offenses committed by or against a national of the United States as that term is used 

in section 101 of the Immigration and Nationality Act—(A) the premises of United States diplomatic, consular, 

military or other United States Government missions or entities in foreign States, including the buildings, parts of 

buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of 

ownership;”).

257 See, e.g., United States v. Passaro, 577 F.3d 207, 210-12 (4th Cir. 2009) (“This case arises from the conviction in 

a United States federal court of an American citizen for the brutal assault on an Afghan national in Afghanistan. A 

jury in the Eastern District of North Carolina found David A. Passaro, a Central Intelligence Agency civilian 

contractor, guilty of assault on Abdul Wali. The assault occurred in 2003 at Asadabad Firebase, a United States 

Army outpost in Afghanistan. ... The Government predicated federal criminal jurisdiction in this case on the special 

maritime and territorial jurisdiction statute.”).

258 10 U.S.C. § 948c (“Any alien unprivileged enemy belligerent is subject to trial by military commission as set 

forth in this chapter.”).

259 DEPARTMENT OF DEFENSE, Manual for Military Commissions (Aug. 14, 2012); DEPARTMENT OF DEFENSE, 

Manual for Military Commissions (Apr. 27, 2010).

260 WINTHROP, MILITARY LAW & PRECEDENTS 839 (“But, in general, it is those provisions of the Constitution which 

empower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize the 

employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its 

original sanction. Its authority is thus the same as the authority for the making and waging of war and for the 

exercise of military government and martial law. The commission is simply an instrumentality for the more 

efficient execution of the war powers vested in Congress and the power vested in the President as Commander-inchief in war.”).

261 WINTHROP, MILITARY LAW & PRECEDENTS 839 (“The occasion for the military commission arises principally 

from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to 

members of the military force and to certain specific offences defined in a written code. It does not extend to many 

criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required. 
1124

Similarly, the use of military commission proceedings continues to be appropriate in 

certain circumstances because the rules for such proceedings are specially adapted to reflect the 

realities of the battlefield and conducting investigations in a war zone.262

18.19.3.8 War Crimes Act. The War Crimes Act authorizes the prosecution of 

individuals for certain war crimes if the victim or the perpetrator is either a U.S. national or a 

member of the U.S. Armed Forces, whether inside or outside the United States.263 Under this 

statute, an individual may be prosecuted for conduct: 

• defined as a grave breach in any of the 1949 Geneva Conventions, or any protocol to 

such convention to which the United States is a Party;

• prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, 

Respecting the Laws and Customs of War on Land, signed 18 October 1907;

• that constitutes a grave breach of common Article 3 (as defined in the statute) when 

committed in the context of and in association with an armed conflict not of an 

international character; or

• of a person who, in relation to an armed conflict and contrary to the provisions of the 

CCW Amended Mines Protocol, when the United States is a Party to such Protocol, 

willfully kills or causes serious injury to civilians.264

 

A commander indeed, where authorized to constitute a purely war-court, may designate it by any convenient name; 

he may style it a ‘court-martial,’ and, though not a court-martial proper, it will still be a legal body under the laws of 

war. But to employ the same name for the two kinds of court could scarcely but result in confusion and in questions 

as to jurisdiction and power of punishment.”).

262 Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012 DIGEST 

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 579-80 (“Military commissions are also appropriate in 

proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. ... It’s important to 

note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our 

civilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt. 

They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses. 

They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And they 

secure the right to appeal to Article III judges – all the way to the United States Supreme Court. In addition, like our 

federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of 

intelligence gathering, and for the safety and security of participants. A key difference is that, in military 

commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone. 

For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect 

military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must make 

other findings – for instance, that the statement is reliable and that it was made voluntarily.”).

263 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in 

any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term 

of years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b) 

Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or 

the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States 

(as defined in section 101 of the Immigration and Nationality Act).”).

264 18 U.S.C. § 2441(c) (“c) Definition.— As used in this section the term “war crime” means any conduct— (1) 

defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol 
1125

18.19.4 U.S. Domestic Law and Policy on Military Jurisdiction. 

18.19.4.1 Limits on Military Jurisdiction Over U.S. Citizens Who Are Not 

Members of the Armed Forces. As a matter of U.S. domestic law, the U.S. Constitution places 

certain limits on the use of military tribunals to punish U.S. citizens who are not members of the 

armed forces.

265 DoD policy addresses the use of the Uniform Code of Military Justice to try 

civilians serving with or accompanying the U.S. armed forces.266 Such law and policy may 

dictate the forum for prosecution. For example, a person who has been discharged from the U.S. 

armed forces and is no longer subject to the Uniform Code of Military Justice would be 

prosecuted under the MEJA or the War Crimes Act rather than the Uniform Code of Military 

Justice.

18.19.4.2 Efforts to Maximize Court-Martial Jurisdiction Over Persons Who Are 

Members of the Armed Forces. Where the United States and a foreign State both claim 

jurisdiction over a service member’s conduct, DoD policy has been to make efforts to maximize 

the exercise of court-martial jurisdiction over persons subject to the Uniform Code of Military 

Justice to the extent possible under applicable agreements.267

18.20 PROSECUTION IN INTERNATIONAL AND HYBRID COURTS

In some cases, the prosecution of individuals for violations of the law of war has been 

undertaken in international tribunals or hybrid tribunals that mix elements of national and 

international law.

The jurisdiction and procedures of these tribunals vary from tribunal to tribunal, and may 

depend on applicable treaties and customary international law. In general, the decisions of these 

 

to such convention to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to 

the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) which 

constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and 

in association with an armed conflict not of an international character; or (4) of a person who, in relation to an armed 

conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the 

United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).

265 See, e.g., Reid v. Covert, 354 U.S. 1 (1956); Toth v. Quarles. 350 U.S. 11 (1955); Duncan v. Kahanamoku, 327 

U.S. 304 (1946); Ex parte Milligan, 71 U.S. 2 (1866).

266 See, e.g., Robert Gates, Secretary of Defense, Memorandum re: UCMJ Jurisdiction Over DoD Civilian 

Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces 

Overseas During Declared War and in Contingency Operations (Mar. 10, 2008 incorporating Change 1 Sept. 23, 

2010).

267 For example, MANUAL FOR COURTS-MARTIAL II-10 (Discussion of R.C.M. 201(d)) (2012) (“As a matter of 

policy, efforts should be made to maximize the exercise of court-martial jurisdiction over persons subject to the code 

to the extent possible under applicable agreements.”). See also DOD DIRECTIVE 5525.1, DoD Status of Forces 

Policy and Information, ¶3 (Aug. 7, 1979, Certified Current as of Nov. 21, 2003) (“It is the policy of the Department 

of Defense to protect, to the maximum extent possible, the rights of United States personnel who may be subject to 

criminal trial by foreign courts and imprisonment in foreign prisons.”).
1126

tribunals are not binding as precedent on the United States, including U.S. courts.

268 However, 

in some cases, it may be appropriate to consider their decisions as persuasive authority.

18.20.1 Post-World War II International Military Tribunals. After World War II, the 

United Kingdom, France, the United States, and the Union of Soviet Socialist Republics sought

to try the major European Axis war criminals. Established by the London Agreement of August 

8, 1945, the International Military Tribunal at Nuremberg conducted the landmark Trial of Major 

War Criminals, with 21 defendants, in Nuremberg, Germany from November 1945 - October 

1946.269 A similar tribunal was established in Tokyo by U.S. General MacArthur in his role as 

Supreme Allied Commander to try major Japanese war criminals in the Far East.270

18.20.2 International Criminal Tribunal for the Former Yugoslavia (ICTY) and

International Criminal Tribunal for Rwanda (ICTR). The U.N. Security Council has used its 

authority under Chapter VII of the Charter of the United Nations to establish international 

criminal tribunals to prosecute persons responsible for serious violations of international 

humanitarian law committed in the territory of the former Yugoslavia since 1991, and in the 

territory of Rwanda, as well as Rwandan citizens responsible for genocide and other such 

violations committed in the territory of neighboring States, between January 1, 1994, and 

December 31, 1994.271

The United States has, through its membership in the U.N. Security Council, supported 

both the efforts of the ICTR and (also acting through NATO) the efforts of the ICTY.272 

18.20.3 The International Criminal Court (ICC) Created by the Rome Statute. The Rome 

Statute of the ICC established the ICC, which sits in The Hague in the Netherlands.273 The 

 268 See, e.g., 18 U.S.C. 2441 note (“No foreign or international source of law shall supply a basis for a rule of 

decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such 

section 2441.”).

269 Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of 

the United States of America, the Provisional Government of the French Republic and the Government of the Union 

of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 

art. 2, Aug. 8, 1945, 82 UNTS 280, 282 (“The constitution, jurisdiction and functions of the International Military 

Tribunal shall be those set out in the Charter annexed to this agreement, which Charter shall form an integral part of 

this Agreement.”).

270 See Douglas MacArthur, Supreme Commander for the Allied Powers, Special Proclamation: Establishment of 

an International Military Tribunal for the Far East, Jan. 19, 1946, 4 BEVANS 20, 21 (“Now, therefore, I, Douglas 

MacArthur, as Supreme Commander for the Allied Powers, by virtue of the authority so conferred upon me, in order 

to implement the Term of Surrender which requires the meting out of stern justice to war criminals, do order and 

provide as follows: ARTICLE 1. There shall be established an International Military Tribunal for the Far East for the 

trial of those persons charged individually, or as members of organizations, or in both capacities, with offenses 

which include crimes against peace.”).

271 Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

272 For example, since the mid-1990s, as part of NATO’s Operation JOINT ENDEAVOR, Operation JOINT 

GUARD and Operation JOINT FORGE, and as part of NATO’s support to the European Union’s Operation 

ALTHEA, the United States has conducted operations to apprehend, transfer, and support the prosecution of Persons 

Indicted for War Crimes (PIFWC) in the ICTY.

273 Refer to § 19.23 (Rome Statute of the International Criminal Court).
1127

United States is not a Party to the Rome Statute. 

The Rome Statute provides that the ICC “shall have the power to exercise its jurisdiction 

over persons for the most serious crimes of international concern” and “shall be complementary 

to national criminal jurisdictions.”274 The Rome Statute provides that the ICC has jurisdiction in 

accordance with the Statute with respect to:275

• the crime of genocide;

• crimes against humanity;

• war crimes; and

• the crime of aggression.

18.20.3.1 Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party 

States. The ICC may exercise jurisdiction if a situation has been referred to it by the U.N. 

Security Council acting under Chapter VII of the Charter of the United Nations.

276 The Rome 

Statute also provides that the ICC may exercise its jurisdiction if one or more of the following 

States are Parties to the Rome Statute or have accepted the jurisdiction of the ICC on an ad hoc

basis: 

• the State on the territory of which the conduct in question occurred or, if the crime was 

committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

or

• the State of which the person accused of the crime is a national.277 

The first of these provisions creates the possibility that the ICC would seek to exercise 

jurisdiction with respect to the actions of nationals of States that have not ratified the Rome 

Statute, even if the U.N. Security Council has not referred the situation. The United States has a 

longstanding and continuing objection to any assertion of jurisdiction by the ICC with respect to 

nationals of States not Party to the Rome Statute in the absence of consent from such States or a 

 274 ROME STATUTE art. 1 (“An International Criminal Court (‘the Court’) is hereby established. It shall be a 

permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of 

international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. 

The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”).

275 ROME STATUTE art. 5 (“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the 

international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the 

following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of 

aggression.”).

276 Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

277 ROME STATUTE art. 12 (“In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if 

one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in 

accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the 

crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of 

which the person accused of the crime is a national.”).
1128

referral by the Security Council.

278 

18.20.3.2 Article 98 Agreements. The Rome Statute provides that the ICC may 

not proceed with a request for surrender or assistance that would require the requested State to 

act inconsistently with its obligations under international law with respect to the State or 

diplomatic immunity of a person or property of a third State, unless the Court can first obtain the 

cooperation of that third State for the waiver of the immunity.279 The Rome Statute also 

provides that the ICC may not proceed with a request for surrender that would require the 

requested State to act inconsistently with its obligations under international agreements pursuant 

to which the consent of a sending State is required to surrender a person of that State to the ICC, 

unless the ICC can first obtain the cooperation of the sending State for the giving of consent for 

the surrender.280

The United States has entered into agreements with numerous States, including Parties to 

the Rome Statute, that require U.S. consent before U.S. personnel may be surrendered by that 

State to the ICC.281

 278 See, e.g., 22 U.S.C. § 7421(11) (“It is a fundamental principle of international law that a treaty is binding upon its 

parties only and that it does not create obligations for nonparties without their consent to be bound. The United 

States is not a party to the Rome Statute and will not be bound by any of its terms. The United States will not 

recognize the jurisdiction of the International Criminal Court over United States nationals.”); William J. Clinton, 

Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III PUBLIC PAPERS OF THE 

PRESIDENTS 2816 (“In particular, we are concerned that when the court comes into existence, it will not only 

exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of 

states that have not.”). Cf. Extracts from Comments by Governments on the Draft Convention on Genocide 

Prepared by the Secretary-General, reprinted in U.N. SECRETARY-GENERAL, Historical Survey of the Question of 

International Criminal Jurisdiction, U.N. Doc. A/CN.4/7/Rev.1, 137 (1949) (1. United States of America This 

article contains a broad jurisdictional provision. ... A third reason for opposing the provision is that it would 

apparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely, 

such States as may not ratify the Convention.”).

279 ROME STATUTE art. 98(1) (“The Court may not proceed with a request for surrender or assistance which would 

require the requested State to act inconsistently with its obligations under international law with respect to the State 

or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of 

that third State for the waiver of the immunity.”).

280 ROME STATUTE art. 98(2) (“The Court may not proceed with a request for surrender which would require the 

requested State to act inconsistently with its obligations under international agreements pursuant to which the 

consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first 

obtain the cooperation of the sending State for the giving of consent for the surrender.”).

281 Such agreements have been cited in certifications required under U.S. law before U.S. personnel are authorized to 

participate in certain U.N. peacekeeping and peace enforcement operations. For example, Barack Obama, 

Certification Concerning U.S. Participation in the United Nations Multidimensional Integrated Stabilization 

Mission in Mali Consistent with Section 2005 of the American Servicemembers’ Protection Act, Jan. 31, 2014, 79 

FEDERAL REGISTER 8079 (Feb. 10, 2014) (“By the authority vested in me as President by the Constitution and the 

laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection 

Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in 

certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S. 

Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are 

without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) 

because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute 
1129

18.20.3.3 U.S. Law and Policy on Support to the ICC. U.S. law contains certain 

restrictions on support to the ICC or ICC activities within the United States.282 U.S. policy is to 

work with the international community to prevent and call to account those responsible for the 

worst human rights abuses, including through support to the International Criminal Court, 

consistent with U.S. law and our commitment to protecting our personnel.

283

18.20.3.4 ICC and the Crime of Aggression. As adopted in 1998, the Rome 

Statute does not define the crime of aggression, but provides that the ICC shall exercise 

jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 

121 and 123 of the Rome Statute defining the crime and setting out the conditions under which 

the ICC shall exercise jurisdiction with respect to this crime.284 A 2010 Review Conference in 

Kampala, Uganda adopted amendments concerning the crime of aggression, but the amendments 

are subject to ratification or acceptance,

285 and certain conditions must be fulfilled before the 

ICC will be able to exercise jurisdiction with respect to the crime of aggression.286 The United 

States has expressed the view that the definitions of “act of aggression” and “crime of 

 

preventing the ICC from proceeding against members of the Armed Forces of the United States present in that 

country.”).

282 See, e.g., 22 U.S.C. §§ 7421-7433; 22 U.S.C. § 7401(b).

283 Barak Obama, National Security Strategy of the United States, 22 (Feb. 2015) (“We will work with the 

international community to prevent and call to account those responsible for the worst human rights abuses, 

including through support to the International Criminal Court, consistent with U.S. law and our commitment to 

protecting our personnel.”); Barak Obama, National Security Strategy of the United States, 48 (May 2010) 

(“Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), 

and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern 

and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the 

requirements of U.S. law.”); Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international 

criminal justice at the Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 61, 67 (“So, while the United States will always 

protect U.S. personnel, we are engaging with States parties to the Rome Statute on issues of concern, and we have 

applied a pragmatic, case-by-case approach towards ICC issues.”).

284 ROME STATUTE art. 5(2) (“The Court shall exercise jurisdiction over the crime of aggression once a provision is 

adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the 

Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant 

provisions of the Charter of the United Nations.”).

285 See Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal Court, Kampala, 

Uganda, Jun. 11, 2010 (“1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the 

International Criminal Court (hereinafter: ‘the Statute’) the amendments to the Statute contained in annex I of the 

present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 

121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to 

ratification or acceptance;”).

286 See, e.g., Article 15 bis, Amendments to the Rome Statute of the International Criminal Court on the Crime of 

Aggression, Annex I to Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal 

Court, Kampala, Uganda, Jun. 11, 2010 (“2. The Court may exercise jurisdiction only with respect to crimes of 

aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. 

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a 

decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an 

amendment to the Statute.”).
1130

aggression” in the Kampala amendments do not reflect customary international law.287 The 

United States has expressed a broad range of other concerns about the Kampala amendments, 

including concerns regarding the possibility of the ICC exercising jurisdiction over the crime of 

aggression without a prior determination by the Security Council that a State has committed an 

act of aggression.288

18.20.4 Hybrid or Mixed Tribunals. In some cases, an international tribunal may mix 

elements of domestic and international law. For example, war crimes trials by national tribunals 

were conducted after World War II under the military government formed by the Allies to 

govern occupied Germany.289

More recently, hybrid tribunals have been established in Sierra Leone, Cambodia, and 

Lebanon. The Special Court for Sierra Leone was established by a treaty between Sierra Leone 

and the United Nations.290 The Special Court applies both international and Sierra Leonean 

law.291 Similarly, in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC) 

was established under Cambodian domestic law, but regulated by an agreement between 

Cambodia and the United Nations.292 The Special Tribunal for Lebanon was established 

 287 Harold Hongju Koh, Legal Adviser, Department of State, Statement at the Review Conference of the 

International Criminal Court, Jun. 4, 2010 (“[T]he definition of aggression does not truly reflect customary 

international law, i.e., widespread and consistent state practice followed out of a sense of legal obligation.”).

288 Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Remarks at the Annual 

Meeting of the American Society of International Law: The ICC Crime of Aggression and the Changing 

International Security Landscape, Apr. 9, 2015 (“Many of our concerns – and many of the means of mitigating them 

– are linked to the uncertainty that still surrounds crucial aspects of the amendments and how they may be 

interpreted and applied. The definition of the crime itself, as adopted in Kampala, was ostensibly based on an earlier 

UN resolution that gave guidance to the Security Council on identifying acts of aggression. But the definition that 

the parties adopted stripped away the critical requirement that the assessment of a use of force ‘must be considered 

in light of all the circumstances of each particular case,’ and it shifted the role of applying this guidance and making 

these judgments – which inevitably involve political judgments – from the Security Council to a judicial body meant 

to remain above politics.”).

289 See generally DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 224-33 (Oct. 23, 1962).

290 See Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a 

Special Court for Sierra Leone, in Appendix II to Letter dated 6 March 2002 from the Secretary-General addressed 

to the President of the Security Council, U.N. Doc S/2002/246, 17 (Mar. 8, 2002). See also U.N. SECURITY 

COUNCIL RESOLUTION 1315, U.N. Doc S/RES/1315 (Aug. 14, 2000) (“Requests the Secretary-General to negotiate 

an agreement with the Government of Sierra Leone to create an independent special court consistent with this 

resolution,”).

291 Statute of the Special Court for Sierra Leone, art. 1(1) Attachment to Agreement between the United Nations and 

the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, in Appendix II to Letter 

dated 6 March 2002 from the Secretary-General addressed to the President of the Security Council, U.N. Doc 

S/2002/246, 17 (Mar. 8, 2002) (“There is hereby established a Special Court for Sierra Leone to prosecute persons 

who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law 

committed in the territory of Sierra Leone since 30 November 1996.”).

292 See Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the 

Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED 

STATES PRACTICE IN INTERNATIONAL LAW 61, 66 (“Similarly, in Cambodia, the international community worked 

long and hard with domestic authorities to pursue accountability for atrocity crimes that took place decades ago. 

The Khmer Rouge Tribunal – formally, the Extraordinary Chambers in the Courts of Cambodia (ECCC) – was a 

different type of hybrid, established under domestic law but regulated by a UN-Cambodia agreement.”). See also
1131

following an agreement between the United Nations and Lebanon to prosecute, inter alia,

persons responsible for the February 2005 attack resulting in the death of former Lebanese Prime 

Minister Rafiq Hariri.293

18.21 LIMITS ON THE PUNISHMENT OF INDIVIDUALS UNDER THE LAW OF WAR

International law places certain limits on the authority of States, whether acting 

individually, or together with other States, to punish individuals for violations committed during 

armed conflict.

18.21.1 Jurisdiction Over War Crimes. States must have jurisdiction over an alleged 

offense to prosecute a person for committing war crimes or other punishable offenses committed 

during armed conflict.294

Jurisdiction over war crimes has traditionally been exercised by belligerents with respect 

to offenses committed by or against their nationals.295 In addition, belligerents have also 

prosecuted war crimes committed by enemy nationals against nationals of allies and of co-

 

U.N. GENERAL ASSEMBLY, Report of the Secretary-General on Khmer Rouge trials, U.N. Doc A/60/565 (Nov. 25, 

2005) (“On 28 April 2005 a notification was sent to the Government of Cambodia indicating that the legal 

requirements on the United Nations side for the entry into force of the Agreement between the United Nations and 

the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed 

during the Period of Democratic Kampuchea, done at Phnom Penh on 6 June 2003, had been complied with. The 

Agreement accordingly entered into force on 29 April 2005, the day after the notification, in accordance with its 

article 32. The Government of Cambodia had previously provided its notification under that article, on 16 

November 2004.”).

293 Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for 

Lebanon, art. 1, Annex to U.N. SECURITY COUNCIL RESOLUTION 1757, U.N. Doc S/RES/1757 (2007) (“There is 

hereby established a Special Tribunal for Lebanon to prosecute persons responsible for the attack of 14 February 

2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other 

persons.”).

294 See, e.g., United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE 

NMT 969-70 (“We are empowered to determine the guilt or innocence of persons accused of acts described as ‘war 

crimes’ and ‘crimes against humanity’ under rules of international law. At this point, in connection with cherished 

doctrines of national sovereignty, it is important to distinguish between the rules of common international law which 

are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are 

by no means universal on the other. ... This universality and superiority of international law does not necessarily 

imply universality of its enforcement.”).

295 United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1189-90 

(Separate Opinion of Judge Blair) (“[D]uring hostilities and before their formal termination belligerents have 

concurrent jurisdiction over war crimes committed by the captured enemy persons in their territory or against their 

nationals in time of war. ... After armistice or peace agreement the matter of punishment of war crimes is 

determined by the terms thereof.”); United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR 

CRIMINALS BEFORE THE NMT 460 (rejecting the defense counsel’s argument that Russia’s could not participate in 

the Tribunal instead explaining that “Russia's participation in the formulation of Control Council Law No. 10 is in 

accordance with every recognized principle of international law,” because “[t]here is no authority which denies any 

belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law” and 

“no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May 

1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of the 

rules of war on her territory and against her people.”).
1132

belligerents, and stateless persons.296 Because jurisdiction over war crimes has sometimes been 

exercised by belligerents against enemy nationals without regard to the territorial location of the 

offense, it has sometimes been characterized as “universal” in character.297

In the past, neutral States generally did not exercise jurisdiction with respect to alleged 

law of war violations between belligerents.298 For example, States have declined to exercise 

jurisdiction with respect to offenses committed by enemy nationals before those States became 

involved in an armed conflict with that State.299

 296 1956 FM 27-10 (Change No. 1 1976) ¶507a (“The jurisdiction of United States military tribunals in connection 

with war crimes is not limited to offenses committed against nationals of the United States but extends also to all 

offenses of this nature committed against nationals of allies and of cobelligerents and stateless persons.”).

297 See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 155 footnote 12 (“It is generally agreed that post 

World War II practice has firmly established the so-called principle of ‘universality of jurisdiction over war crimes,’ 

thereby permitting belligerents to exercise jurisdiction over individuals accused of war crimes without regard to the 

place where an offense was committed or to the nationality of the victims. In its most general form this principle 

might well be interpreted to permit neutral states to try and punish war criminals who fall under their control. But 

there is no record of neutral states making such an attempt, and the right of neutrals to do so remains doubtful.”); G. 

Brand, The War Crimes Trials and the Laws of War, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 414, 416 

(1951) (“Thus the doctrine of universality of war crimes is now generally accepted. Account has been taken of the 

crime itself rather than of (a) the nationality of the victim, provided that he has been, from the point of view of the 

court, an Allied national or could be treated as such; (b) the nationality of the accused, provided that he can be 

regarded as having identified himself with the enemy; or (c) the place of the offence.”); Willard B. Cowles, 

Universality of Jurisdiction over War Crimes, 33 CALIFORNIA LAW REVIEW 177, 178 (1945) (describing the 

question of “whether the jurisdiction principle of universality is applicable to the punishment of war crimes” as “the 

question whether, under international law, a belligerent State has jurisdiction to punish an enemy war criminal in its 

custody when the victim of the war crime was a national of another State and the offense took place outside of 

territory under control of the punishing State.”).

298 La Amistad De Rues, 18 U.S. 385, 390 (1820) (“consider[ing] it no part of the duty of a neutral nation to 

interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a 

capture between belligerents” and noting that alleged law of war violations between belligerents “have never been 

held within the cognizance of the prize tribunals of neutral nations.”); Juando v. Taylor, 13 F. Cas. 1179, 1189 

(S.D.N.Y. 1818) (No. 7558) (explaining that “no suit or proceeding of any sort can be maintained in the courts of a 

neutral nation, by the subjects of one belligerent against the subjects of the other, for acts growing out of the war”).

299 See James Brown Scott and Robert Lansing, Memorandum of Reservations Presented by the Representatives of 

the United States to the Report of the Commission on Responsibilities, Annex II to the Report Presented to the 

Preliminary Peace Conference, Mar. 29, 1919, by the Commission on the Responsibility of the Authors of the War 

and on Enforcement of Penalties, reprinted in 14 AJIL 95, 147 (1920) (“It seemed elementary to the American 

representatives that a country could not take part in the trial and punishment of a violation of the laws and customs 

of war committed by Germany and her Allies before the particular country in question had become a party to the 

war against Germany and her Allies; that consequently the United States could not institute a military tribunal within 

its own jurisdiction to pass upon violations of the laws and customs of war, unless such violations were committed 

upon American persons or American property, and that the United States could not properly take part in the trial and 

punishment of persons accused of violations of the laws and customs of war committed by the military or civil 

authorities of Bulgaria or Turkey.”). Cf. United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR 

WAR CRIMINALS BEFORE THE IMT 254 (“To constitute Crimes against Humanity, the acts relied on before the 

outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the 

Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been 

satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal 

therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the 

meaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale, 

which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and 
1133

Some have argued that States may exercise purely universal jurisdiction over war crimes, 

i.e., jurisdiction to define and prescribe punishment based simply on the character of the offense 

as a war crime.300 Until the 1990s, no such attempts were made by States to exercise jurisdiction 

on this basis.301 Congress declined to authorize prosecutions for war crimes based on this 

principle.302 Efforts by certain States to undertake prosecutions on the basis of this principle 

have been controversial.

303 Such prosecutions have generally not been successful unless the 

State concerned has consented.304

 

committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or 

in connection with, the aggressive war, and therefore constituted Crimes against Humanity.”).

300 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 254 (§404, Reporters’ Note 1) 

(1987) (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the 

community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, 

genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in 

§ 402 is present.”); but see I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 257-58 

(§404, Reporters’ Note 3) (1987) (“The previous Restatement cited only piracy as an offense subject to universal 

jurisdiction. See § 34. Reporters’ Note 2 of that section listed other crimes of universal interest but indicated they 

were not yet subject to universal jurisdiction as a matter of international law.”).

301 I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 256 (1987) (“apparently no state 

has exercised such jurisdiction [over war crimes and genocide] in circumstances where no other basis for 

jurisdiction under § 402 was present.”); Committee on the Judiciary, House of Representatives Report No. 104-698, 

8 (Jul. 24, 1996) (“The Committee has been informed that there has never been a single case of a signatory country 

to the Geneva conventions exercising its own criminal jurisdiction over an alleged war criminal on the basis of 

universal jurisdiction.”).

302 See Committee on the Judiciary, House of Representatives Report No. 104-698, 8 (Jul. 24, 1996) (“The 

Committee decided that the expansion of H.R. 3680 to include universal jurisdiction would be an unwise [sic] at 

present. Domestic prosecution based on universal jurisdiction could draw the United States into conflicts in which 

this country has no place and where our national interests are slight. In addition, problems involving witnesses and 

evidence would likely be daunting. This does not mean that war criminals should go unpunished. There are ample 

alternative venues available which are more appropriate. Prosecutions can be handled by the nations involved or by 

international tribunal. If a war criminal is discovered in the United States, the federal government can extradite the 

individual upon request in order to facilitate prosecution overseas. The Committee is not presently aware that these 

alternative venues are inadequate to meet the task.”).

303 See, e.g., Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002 

I.C.J. 35, 43 (¶15) (Separate Opinion of President Guillaume) (“International criminal law has itself undergone 

considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the 

possibility, or indeed the obligation, for a State other than that on whose territory the offence was committed to 

confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory. 

International criminal courts have been created. But at no time has it been envisaged that jurisdiction should be 

conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims 

and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total 

judicial chaos. It would also be to encourage the arbitrary, for the benefit of the powerful, purportedly acting as 

agent for an ill-defined ‘international community.’ Contrary to what is advocated by certain publicists, such a 

development would represent not an advance in the law but a step backward.”).

304 Roman Anatolevich Kolodkin, Special Rapporteur, U.N. International Law Commission, Second report on 

immunity of State officials from foreign criminal jurisdiction, U.N. Doc A/CN.4/631, ¶16 (Jun. 10, 2010) (“It is 

noted that until now attempts to exercise universal jurisdiction that have been successful have just taken place in 

cases where the State concerned consented. In other cases, States usually react negatively to attempts to exercise 

foreign criminal jurisdiction even over their former Heads of State and Government, as they also do, however, in 

respect of other high-ranking officials. In the absence of cooperation with the State whose official a case concerns, 
1134

18.21.2 Tu Quoque. The international law doctrine tu quoque may be understood as an 

argument that a State does not have standing to complain about a practice in which it itself 

engages.305

For example, it would seem unfair for a State to punish members of opposing military 

forces for committing acts that it considered lawful for members of its armed forces to 

perform.306 On the other hand, as a general matter, the fact that criminal acts have been 

committed by opposing armed forces does not constitute a defense to criminal liability. In 

addition, as a general matter, the fact that members of its armed forces have committed a 

violation does not preclude a State from punishing captured members of opposing armed forces 

for such violations.307 Similarly, the authority of a State to punish its own citizens, in 

accordance with municipal criminal law, for violations of international law is not affected by this 

rule.308

18.21.3 Fundamental Fairness Requirements. 

18.21.3.1 Fair Trial Requirements. Any person charged with a crime under 

 

the proper and legally correct criminal prosecution of such a person is practically impossible. On the whole, 

therefore, such attempts end up merely complicating relations between States.”).

305 Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in 

Information Operations 46 (May 1999) (“The lack of strong international legal sanctions for peacetime espionage 

may also constitute an implicit application of the international law doctrine called “tu quoque” (roughly, a nation has 

no standing to complain about a practice in which it itself engages). Whatever the reasons, the international legal 

system generally imposes no sanctions upon nations for acts of espionage except for the political costs of public 

denunciation, which don’t seem very onerous.”). See also FRITS KALSHOVEN, BELLIGERENT REPRISALS 364 (“There 

is, however, another possible view of tu quoque, according to which this does not so much constitute a substantive 

justificatory ground as an argument of a procedural order, to the effect that a belligerent cannot charge his enemy 

with a particular form of illegal warfare if he has himself violated the same rule or rules, without this being justified 

as a reprisal. For this argument, it is not important whether the belligerent was the first to commit that violation, nor 

even whether he was aware that the enemy was guilty of the same illegal conduct: the contention is that the mere 

fact of his having infringed the identical norm precludes him from charging that particular illegality against the 

enemy.”).

306 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 313 

(“In view of all of the facts proved, and in particular of an order of the British Admiralty announced on 8 May 1940, 

according to which all vessels should be sunk at night in the Skagerrak, and the answer to interrogatories by Admiral 

Nimitz that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first 

day that nation entered the war, the sentence of Donitz is not assessed on the ground of his breaches of the 

international law of submarine warfare.”).

307 See United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE 

NMT 482 (“Under general principles of law, an accused does not exculpate himself from a crime by showing that 

another committed a similar crime, either before or after the alleged commission of the crime by the accused.”).

308 Sentence of the Bundesgerichtshof of Sept. 30, 1960, reprinted in FRITS KALSHOVEN, BELLIGERENT REPRISALS

365 footnote 15 (2005) (citing 32 International Law Reports 564) (“The rule of ‘tu quoque’ merely means that no 

State may accuse another State of violations of international law and exercise criminal jurisdiction over the latter’s 

citizens in respect of such violations if it is itself guilty of similar violations against the other State or its allies. The 

right and duty of a State to hold its own citizens responsible, in accordance with municipal criminal law, for 

violations of international law is not affected by this rule.”).
1135

international law has the right to a fair trial on the facts and law.309

In all circumstances, persons who are accused of grave breaches of the 1949 Geneva 

Conventions shall benefit from safeguards of proper trial and defense, which shall not be less 

favorable than those provided by Article 105 and those following of the GPW.

310 In addition, 

other fundamental fair trial guarantees should be afforded.311

18.21.3.2 Punishment of Violations of the Law of War. The punishment of war 

crimes may vary according to the particular forum in which the prosecution is brought. For 

example, what punishments are authorized may depend on a State’s domestic law or the statute 

of an international criminal tribunal. In addition, special rules address the punishment of POWs 

and protected persons. However, the following principles apply, as a matter of international law, 

to the punishment of violations of the law of war:

• The punishment imposed for a violation of the law of war must be proportionate to the 

gravity of the offense. 

• The death penalty may be imposed for grave breaches of the law.

• Corporal punishment is excluded. 

• Punishments should be deterrent, and in imposing a sentence of imprisonment it is not 

necessary to take into consideration the end of the war, which does not of itself limit the 

imprisonment to be imposed.312

18.21.4 Limitations on the Trial and Punishment of Certain Classes of Persons. 

18.21.4.1 Limitations on the Trial and Punishment of POWs. The trial and 

 309 U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg 

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session, 

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950, 

374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE V Any person charged with a crime 

under international law has the right to a fair trial on the facts and law.”).

310 GWS art. 49 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, 

which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention 

relative to the Treatment of Prisoners of War of August 12, 1949.”); GWS-SEA art. 50 (same); GC art. 146 (same); 

GPW art. 129 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, 

which shall not be less favourable than those provided by Article 105 and those following of the present 

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

311 Refer to § 8.16 (Criminal Procedure and Punishment).

312 1956 FM 27-10 (Change No. 1 1976) ¶508 (“The punishment imposed for a violation of the law of war must be 

proportionate to the gravity of the offense. The death penalty may be imposed for grave breaches of the law. 

Corporal punishment is excluded. Punishments should be deterrent, and in imposing a sentence of imprisonment it 

is not necessary to take into consideration the end of the war, which does not of itself limit the imprisonment to be 

imposed.”).
1136

punishment of POWs must comport with the rules prescribed by the GPW.313

18.21.4.2 Limitations on the Trial and Punishment of Protected Persons. The 

trial and punishment of protected persons must comport with the rules prescribed by the GC.314

18.21.4.3 Limitations on the Trial and Punishment of Persons Entitled to the 

Privileges of Combatant Status. As a matter of international law, persons who are entitled to the 

privileges of combatant status have a certain legal immunity from the domestic law of foreign 

States.315 

18.22 PRINCIPLES OF INDIVIDUAL CRIMINAL RESPONSIBILITY FOR CRIMES UNDER INTERNATIONAL 

LAW

Individual criminal responsibility exists for certain violations of the international law.

18.22.1 Individual Criminal Responsibility for Acts Constituting Crimes Under 

International Law. Any person who commits an act that constitutes a crime under international 

law is responsible therefor and liable to punishment.

316 International law imposes duties and 

liabilities on individuals as well as States, and individuals may be punished for violations of 

international law.317

18.22.2 Absence of Penalty Under Domestic Law Does Not Relieve a Person of 

Responsibility. The fact that internal law does not impose a penalty for an act that constitutes a 

crime under international law does not relieve the person who committed the act from 

responsibility under international law.318

 313 Refer to § 9.26 (General Principles Applicable to POW Discipline); § 9.28 (Judicial Proceedings and 

Punishment).

314 Refer to § 10.27 (General Provisions Applicable to Both Judicial and Disciplinary Sanctions Regarding 

Internees); § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a 

Belligerent’s Home Territory).

315 Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

316 See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the 

Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its 

Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW 

COMMISSION 1950, 374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE I Any person who 

commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”).

317 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 223 

(“That international law imposes duties and liabilities upon individuals as well as upon States has long been 

recognized. ... Many other authorities could be cited, but enough has been said to show that individuals can be 

punished for violations of international law. Crimes against international law are committed by men, not by abstract 

entities, and only by punishing individuals who commit such crimes can the provisions of international law be 

enforced.”) (citing Ex parte Quirin, 317 U.S. 1 (1942)). Compare § 10.3.5 (State Responsibility for Its Agents’ 

Treatment of Protected Persons).

318 U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg 

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session, 

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950, 

374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE II The fact that internal law does not impose 
1137

For example, a State may lack domestic legislation that imposes any penalty for an act 

that violates international law. Nonetheless, just as a State’s municipal law cannot excuse its 

failure to comply with its international legal obligations, a person is not relieved of responsibility 

for an act constituting a crime under international law because his or her State’s municipal law 

does not impose any penalty for the offense.319

18.22.3 Official Position Does Not Relieve a Person of Responsibility. The fact that a 

person who committed an act which constitutes a crime under international law acted as Head of 

State or responsible Government official does not relieve him or her of responsibility under 

international law.320

This principle has been reflected in the statutes of international criminal tribunals.321

18.22.4 Acting Pursuant to Orders Does Not Relieve a Person of Responsibility. The fact 

that a person acted pursuant to orders of his or her Government or of a superior does not relieve 

that person from responsibility under international law, provided it was possible in fact for that 

person to make a moral choice.322 This principle has been reflected in the statutes of 

international criminal tribunals.323 It may also be understood as part of a broader principle that 

 

a penalty for an act which constitutes a crime under international law does not relieve the person who committed the 

act from responsibility under international law.”).

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

320 U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg 

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session, 

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,

374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE III The fact that a person who 

committed an act which constitutes a crime under international law acted as Head of State or responsible 

Government official does not relieve him from responsibility under international law.”).

321 Charter of the International Military Tribunal, art. 7, annexed to Agreement by the Government of the United 

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional 

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the 

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288 

(“The official position of defendants, whether as Heads of State or responsible officials in Government Departments, 

shall not be considered as freeing them from responsibility or mitigating punishment.”); ICTY STATUTE art. 7(2) 

(“The official position of any accused person, whether as Head of State or Government or as a responsible 

Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”).

322 See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the 

Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its 

Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW 

COMMISSION 1950, 374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE IV The fact that a 

person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under 

international law, provided a moral choice was in fact possible to him.”).

323 Charter of the International Military Tribunal, art. 8, annexed to Agreement by the Government of the United 

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional 

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the 

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288 

(“The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from 

responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so 

requires.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of a Government or 

of a superior shall not relieve him of criminal responsibility, ... .”); ICTR STATUTE art. 6(4) (“The fact that an 
1138

military personnel cannot justify committing unlawful acts by producing the order of their 

superior.324

Although it is clear that merely the fact that the act at issue was committed pursuant to 

superior orders does not constitute a defense to criminal responsibility under international law, 

the precise extent to which superior orders may constitute a defense or excuse may vary 

according to the forum in which a violation is tried.325 

In cases in which the illegality of the order is not apparent, the subordinate might lack the 

wrongful intent necessary to the commission of the crime.326 Subordinates, absent specific 

knowledge to the contrary, may presume orders to be lawful.327 The acts of a subordinate done 

in compliance with an unlawful order given by a superior are generally excused unless the 

superior’s order is one that a person of ordinary sense and understanding would, under the 

circumstances, know to be unlawful (e.g., to torture or murder a detainee), or if the order in 

question is actually known to the accused to be unlawful.328 

On the other hand, subordinates must refuse to comply with clearly illegal orders to 

 accused person acted pursuant to an order of a Government or of a superior shall not relieve him [or her] of criminal 

responsibility ... .”).

324 See Mitchell v. Harmony, 54 U.S. 115, 137 (1851) (“Consequently the order given was an order to do an illegal 

act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was 

executed. . . . And upon principle, independent of the weight of judicial decision, it can never be maintained that a 

military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may 

palliate, but it cannot justify.”).

325 LEVIE, POWS 389 (“The Commission of Experts convened by the ICRC in December 1948 in connection with 

the grave-breaches provisions which had been approved and the Resolution which had been adopted by the 1948 

Stockholm Conference, drafted a proposed article relating solely to the defense of superior orders. The 1949 

Diplomatic Conference did not include such a provision in the Convention as finally approved. Accordingly, this 

problem will once again have to be resolved on a national basis. Efforts to solve it on an international basis in 

related areas have been undertaken by various organs of the United Nations, but those efforts have complicated, 

rather than clarified, the problem. It is obvious that there is no clear and well-defined rule which will be applied to 

the defense of superior orders when it is advanced, as it undoubtedly will be, in future trials for violations of the 

grave breaches and other provisions of the 1949 Convention. However, it is believed that it may be safely stated 

that, as after World War II, the mere fact that the act complained of was committed pursuant to superior orders will 

not suffice as a defense.”).

326 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“We are 

of the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably 

have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and 

the interior [sic] will be protected. But the general rule is that members of the armed forces are bound to obey only 

the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command 

which violates international law and outrages fundamental concepts of justice.”).

327 Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).

328 United States v. Calley, 22 U.S.C.M.A. 534, 542 (C.M.A. 1973) (“The acts of a subordinate done in compliance 

with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the 

superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to 

be unlawful, or if the order in question is actually know to the accused to be unlawful.”).
1139

commit violations of the law of war.329

That an offense was committed pursuant to superior orders may be considered in 

mitigation of punishment.330 The degree to which superior orders should mitigate punishment 

would depend on the specific circumstances of the case.331

18.23 THEORIES OF INDIVIDUAL CRIMINAL LIABILITY

Individuals may be held liable for violations of the law of war whether they have 

committed them directly or are complicit in the commission of such crimes.

332

The theories of liability that apply to a law of war violation may vary depending on the 

particular forum (e.g., U.S. Federal court, U.S. military commission, International Criminal 

Tribunal for the Former Yugoslavia) in which the violation is being adjudicated. Modes of 

liability for law of war offenses may include ordering, instigating or directly inciting, command 

responsibility, aiding and abetting, conspiracy, and joint criminal enterprise.

In some cases, these theories of liability may be viewed as ways of attributing an offense 

that is committed by one person to another person. In other cases, these theories of liability may 

be viewed as distinct offenses; for example, a first offense is committed by one person and a 

second offense is committed by another person that is somehow related to the first offense.

18.23.1 Ordering. A person who orders another person to commit an offense is generally 

punishable as though that person had committed the offense directly.

 329 Refer to § 18.3.2 (Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations).

330 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶509a (“In all cases where the order is held not to constitute a 

defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in 

mitigation of punishment.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of 

a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation 

of punishment if the International Tribunal determines that justice so requires.”); ICTR STATUTE art. 6(4).

331 For example, Trial of Lieutenant-General Shigeru Sawada and Three Others, V U.N. LAW REPORTS 1, 7 (U.S. 

Military Commission, Shanghai, Feb. 27-Apr. 15, 1946) (“The offences of each of the accused resulted largely from 

obedience to the laws and instructions of their Government and their Military Superiors. They exercised no 

initiative to any marked degree. The preponderance of evidence shows beyond reasonable doubt that other officers, 

including high governmental and military officials, were responsible for the enactment of the Ex Post Facto ‘Enemy 

Airmen’s Law’ and the issuance of special instructions as to how these American prisoners were to be treated, tried, 

sentenced and punished. The circumstances set forth above do not entirely absolve the accused from guilt. 

However, they do compel unusually strong mitigating consideration, applicable to each accused in various 

degrees.”).

332 U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg 

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session, 

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950, 

374, 377 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE VII Complicity in the commission of a 

crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under 

international law.”).
1140

This principle is reflected in the Uniform Code of Military Justice.

333 Statutes of 

international criminal tribunals have also reflected this mode of liability.

334 

18.23.2 Instigating or Directly Inciting. Instigating or direct incitement of an offense is 

punishable.335 Statutes of international criminal tribunals have also reflected this mode of 

liability.

336 

18.23.3 Command Responsibility. Commanders have duties to take necessary and 

reasonable measures to ensure that their subordinates do not commit violations of the law of 

war.337 Failures by commanders of their duties to take necessary and reasonable measures to 

ensure that their subordinates do not commit violations of the law of war can result in criminal 

responsibility.338

18.23.3.1 Command Responsibility as a Distinct Offense. Commanders may be 

punished directly for their failure to take necessary and reasonable measures to ensure that their 

subordinates do not commit violations of the law of war. For example, such failures may be 

punished under the Uniform Code of Military Justice as dereliction of duty or violation of orders 

 333 10 U.S.C. § 877 (“Any person punishable under this chapter who— (1) commits an offense punishable by this 

chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if 

directly performed by him would be punishable by this chapter; is a principal.”).

334 See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and 

abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall 

be individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered, 

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 

2 to 4 of the present Statute, shall be individually responsible for the crime.”).

335 1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as well as 

complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).

336 See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and 

abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall 

be individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered, 

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 

2 to 4 of the present Statute, shall be individually responsible for the crime.”).

337 Refer to § 18.4 (Commanders’ Duty to Implement and Enforce the Law of War).

338 See also 1956 FM 27-10 (Change No. 1 1976) ¶501 (“In some cases, military commanders may be responsible 

for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. 

Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory 

or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the 

commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an 

order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have 

knowledge, through reports received by him or through other means, that troops or other persons subject to his 

control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to 

insure compliance with the law of war or to punish violators thereof.”). Consider AP I art. 86(2) (“The fact that a 

breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from 

penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled 

them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and 

if they did not take all feasible measures within their power to prevent or repress the breach.”).
1141

to take such measures.339 

18.23.3.2 Command Responsibility as a Mode of Liability for an Offense. In 

some cases, the failure by commanders to fulfill their duties to take necessary and reasonable 

measures to ensure that their subordinates do not commit violations of the law of war are not 

punished directly as breaches of those duties, but instead by imputing responsibility for the 

offense committed by the subordinates to the commander.

Command responsibility as a mode of liability for an offense is reflected in U.S. statutes 

governing military commissions.340 The statutes of international tribunals have also reflected 

command responsibility as a mode of liability.

341 In some cases, this theory of superior 

responsibility has been applied to civilian superiors.342

Command responsibility, as a mode of liability, is not a form of strict liability.343 The 

commander’s personal dereliction must have contributed to or failed to prevent the offense; there 

must be a personal neglect amounting to a wanton, immoral disregard of the action of his or her 

subordinates amounting to acquiescence in the crimes.

344

 339 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

340 10 U.S.C. § 950q (“Any person is punishable under this chapter who— ... (3) is a superior commander who, with 

regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate 

was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to 

prevent such acts or to punish the perpetrators thereof, is a principal.”).

341 See ICTY STATUTE art. 7(3) (“The fact that any of the acts referred to in articles 2 to 5 of the present Statute was 

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.”); ICTR STATUTE art. 6(3) (same); 

ROME STATUTE art. 28.

342 See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶132 (Jan. 27, 2000) 

(“As to whether the form of individual criminal responsibility referred to under Article 6(3) of the Statute also 

applies to persons in both military and civilian authority, it is important to note that during the Tokyo Trials, civilian 

authorities were convicted of war crimes under this principle.”).

343 See also Prosecutor v. Kordic and Cerkez, ICTY Trial Chamber, IT-95-14/2-T, Judgment, ¶369 (Feb. 26, 2001) 

(“It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely 

because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or 

had reason to know’ of the offences and failed to act to prevent or punish their occurrence. Superior responsibility, 

which is a type of imputed responsibility, is therefore not a form of strict liability.”).

344 United States v. von Leeb, et al. (High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 543 

(“A high commander cannot keep completely informed of the details of military operations of subordinates and most 

assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible 

subordinates will be legally executed. The President of the United States is Commander in Chief of its military 

forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of 

subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to 

every individual in this chain of command from that fact alone. There must be a personal dereliction. That can 

occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates 

constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, 

immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of 

international law would go far beyond the basic principles of criminal law as known to civilized nations.”).
1142

18.23.4 Aiding and Abetting. The theory of aiding and abetting holds an individual liable 

for an offense committed by another based on certain assistance that the individual gave in 

relation to the crime. Aiding and abetting liability for a crime can be usefully analyzed as 

consisting of three elements: (1) knowledge of the illegal activity that is being aided and abetted; 

(2) a desire to help the activity succeed; and (3) some act of helping.345

This theory of liability is applicable in prosecutions in Federal court under title 18,346

prosecutions under the Uniform Code of Military Justice,

347 and prosecutions by U.S. military 

commission.348 This theory of liability has also been reflected in the statutes of international 

criminal tribunals.349

18.23.4.1 Aiding and Abetting as a Principle of State Responsibility. The 

principle of aiding and abetting is also reflected in principles of State responsibility.350 As with 

the principle of aiding and abetting when applied to individuals, the aid or assistance must be 

given with a view to facilitating the commission of the wrongful act, and must actually do so, in 

order for the State giving the aid to incur liability.351

 345 Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down Civil 

Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 156 

(“Aiding and abetting liability for a crime can be usefully analyzed as consisting of three elements: ‘[1] knowledge

of the illegal activity that is being aided and abetted, [2] a desire to help the activity succeed, and [3] some act of 

helping.’ All three elements must be present for aiding and abetting liability to attach.”) (changes in original) 

(citation omitted).

346 18 U.S.C. § 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, 

induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done 

which if directly performed by him or another would be an offense against the United States, is punishable as a 

principal.”).

347 10 U.S.C. § 877 (“Principals. Any person punishable under this chapter who- (1) commits an offense punishable 

by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done 

which if directly performed by him would be punishable by this chapter; is a principal.”).

348 10 U.S.C § 950q (“Any person punishable under this chapter who—(1) commits an offense punishable by this 

chapter, or aids, abets, counsels, commands, or procures its commission; (2) causes an act to be done which if 

directly performed by him would be punishable by this chapter;”).

349 ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and abetted 

in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be 

individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered, 

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 

2 to 4 of the present Statute, shall be individually responsible for the crime.”); ROME STATUTE art. 25 (“In 

accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within 

the jurisdiction of the Court if that person: ... [¶3(c)] For the purpose of facilitating the commission of such a crime, 

aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its 

commission;”).

350 U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, 

with commentaries, art. 16 (2001) (“A State which aids or assists another State in the commission of an 

internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with 

knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally 

wrongful if committed by that State.”).

351 U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, 

with commentaries, 66 (2001) (“The second requirement is that the aid or assistance must be given with a view to 
1143

18.23.4.2 Aiding and Abetting Certain Conduct as a Distinct Offense Instead of a 

Mode of Liability for an Offense. In some cases, aiding certain conduct is a distinct offense as 

opposed to a mode of liability for an offense. These cases reflect circumstances in which (or a 

judgment that) there is a duty to refrain from aiding that conduct.352

18.23.5 Conspiracy. The essence of conspiracy is the combination of minds in an 

unlawful purpose.353

The United States has taken the position that conspiracy to violate the law of war is 

punishable.354 The United States has used military tribunals to punish unprivileged belligerents 

for the offense of conspiracy to violate the law of war.355

 

facilitating the commission of the wrongful act, and must actually do so. This limits the application of article 16 to 

those cases where the aid or assistance given is clearly linked to the subsequent wrongful conduct. A State is not 

responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance 

given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually 

committed by the aided or assisted State. There is no requirement that the aid or assistance should have been 

essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that 

act.”).

352 See, e.g.,10 U.S.C. § 904 (making punishable “aiding the enemy”); 10 U.S.C. § 950t(25) (making punishable by 

military commission “providing material support to terrorism”); 10 U.S.C. § 950t(26) (making punishable by 

military commission “wrongfully aiding the enemy”); 18 U.S.C. § 2339A (making punishable “[p]roviding material 

support to terrorists”); 18 U.S.C. § 2339B (making punishable “[p]roviding material support or resources to 

designated foreign terrorist organizations”).

353 Smith v. United States, 133 S. Ct. 714, 719 (2013) (“The essence of conspiracy is ‘the combination of minds in 

an unlawful purpose.’”) (quoting United States v. Hirsch, 100 U.S. 33, 34 (1879)).

354 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as 

well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are 

punishable.”); Memorandum of Law from Tom C. Clark, Assistant Attorney General, to Major General Myron C. 

Kramer, Judge Advocate General, 6 (Mar. 12, 1945) (“In view of the statements of the authorities on military law set 

forth above, and the precedents established in the proceedings referred to above, it may be said to be well 

established that a conspiracy to commit an offense against the laws of war is itself an offense cognizable by a 

commission administering military judgment.”).

355 See, e.g., Hamdan v. Rumsfeld, 548 U.S. 1, 23 (2006) (Thomas, J., dissenting) (“The Civil War experience 

provides further support for the President’s conclusion that conspiracy to violate the laws of war is an offense 

cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a military 

commission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, the 

charge provided that those men had ‘combin[ed], confederat[ed], and conspir[ed]...to kill and murder’ President 

Lincoln.”); Colepaugh v. Looney, 235 F.2d 429, 431 (10th Cir. 1956) (“January 11, 1945, by executive order, the 

President charged the petitioner with violation of the law of war and...to convene a military commission for trial of 

such offenses. The first charge specified: (1) ... the petitioner and one Gimpel, acting for the German Reich, 

secretly passed through, in civilian dress, contrary to the law of war, the military and naval lines of the United States 

for the purpose of committing espionage, sabotage and other hostile acts; and (2) that the accused ... appeared and 

remained in civil dress, contrary to the law of war behind the military lines of the United States for the purpose of 

committing espionage, sabotage and other hostile acts. The second charge alleged ... the petitioner and one Gimpel, 

acting for the German Reich, were, in time of war, found lurking and acting as spies in and about the fortifications, 

posts and encampments ... of the United States ..., for the purpose of obtaining intelligence and communicating it to 

the German Reich. The third charge alleged a conspiracy to commit the above substantive offenses.”); Ex Parte 

Quirin, 317 U.S. 1, 23 (1942) (“On July 3, 1942, the Judge Advocate General’s Department of the Army prepared 

and lodged with the Commission the following charges against petitioners, supported by specifications: 1. Violation 

of the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to 
1144

Conspiracy is an offense under the Uniform Code of Military Justice.

356 Conspiracy is an 

offense under the Military Commissions Act of 2009.

357 Conspiracy to commit an offense is an 

offense under Title 18.

358

The use of conspiracy may vary according the forum in which charges are brought. 

However, as a general matter, charges of conspiracy for violations of the law of war by persons 

belonging to the enemy should be restricted to cases of offenses in which an overt act has been 

committed because non-punitive measures, such as security detention, may be available to 

address threats.359

18.23.5.1 Conspiracy to Commit Genocide. The Genocide Convention provides 

that conspiracy to commit genocide shall be punishable.360 Thus, mere agreement by 

perpetrators to commit genocide may be punishable even if no preparatory act has taken place.361

 

relieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Article 82, defining the offense of 

spying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.”); but see Hamdan v. Rumsfeld, 548 

U.S., 40-41 (2006) (Stevens, J., plurality) (“The crime of ‘conspiracy’ has rarely if ever been tried as such in this 

country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear 

in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.”).

356 See 10 U.S.C. § 881 (“(a) Any person subject to this chapter who conspires with any other person to commit an 

offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, 

be punished as a court-martial may direct. (b) Any person subject to this chapter who conspires with any other 

person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the 

conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a 

court-martial or military commission may direct, and, if death does not result to any of the victims, by such 

punishment, other than death, as a court-martial or military commission may direct.”).

357 10 U.S.C. § 950t(29) (“Any person subject to this chapter who conspires to commit one or more substantive 

offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the 

object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other 

punishment as a military commission under this chapter may direct, and, if death does not result to any of the 

victims, by such punishment, other than death, as a military commission under this chapter may direct.”).

358 See, e.g., 18 U.S.C. § 371 (“If two or more persons conspire either to commit any offense against the United 

States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of 

such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not 

more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a 

misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for 

such misdemeanor.”); 18 U.S.C. § 2441 (including the act of conspiring to commit certain acts as punishable); 18 

U.S.C. § 2442 (b) (“Whoever violates, or attempts or conspires to violate, subsection (a) shall be fined under this 

title or imprisoned not more than 20 years, or both and, if death of any person results, shall be fined under this title 

and imprisoned for any term of years or for life.”).

359 WINTHROP, MILITARY LAW & PRECEDENTS 841 (“It may be added that the jurisdiction of the military 

commission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual 

attempts to commit, and not in intentions merely. Thus what would justify in war a precautionary arrest might not 

always justify a trial as for a specific offence.”).

360 Convention on the Prevention and Punishment of the Crime of Genocide, art. 3, Dec. 9, 1948, 78 UNTS 277, 280 

(“The following acts shall be punishable: ... (b) Conspiracy to commit genocide;...”).

361 See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶185 (Jan. 27, 2000) 

(“The Chamber notes that the crime of conspiracy to commit genocide covered in the Statute is taken from the 

Genocide Convention. The ‘Travaux Préparatoires’ of the Genocide Convention suggest that the rationale for 
1145

18.23.5.2 Conspiracy to Commit Aggressive War. The International Military 

Tribunal at Nuremberg tried defendants for participation in a common plan or conspiracy to 

wage a war of aggression.362 However, the International Military Tribunal declined to interpret 

its Charter to authorize prosecutions for conspiracy to commit war crimes and crimes against 

humanity.363

18.23.6 Other Group Criminality Theories – Joint Criminal Enterprise. In addition to 

conspiracy, analogous theories of group criminality have been applied to violations of the law of 

war and other violations of international law.364 Under recognized principles common to the 

major legal systems of the world, persons who are connected with plans or enterprises involved 

in the commission of a crime, or who belong to an organization or group engaged in the 

commission of crime, may also be guilty of that crime.

365 Joining a criminal group may be 

 

including such an offence was to ensure, in view of the serious nature of the crime of genocide, that the mere 

agreement to commit genocide should be punishable even if no preparatory act has taken place.”); Ferdinand 

Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, ICTR Appeals Chamber, ICTR-99-52-A, 

Judgment, ¶894 (Nov. 28, 2007) (“Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been 

defined as ‘an agreement between two or more persons to commit the crime of genocide’. The existence of such an 

agreement between individuals to commit genocide (or ‘concerted agreement to act’) is its material element (actus 

reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a 

national, ethnical, racial or religious group as such (mens rea).”).

362 Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the United 

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional 

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the 

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288 

(“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall 

be individual responsibility:– (a) Crimes against peace: namely, planning, preparation, initiation or waging of a 

war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a 

common plan or conspiracy for the accomplishment of any of the foregoing;”).

363 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 226 

(“Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes 

and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one to 

commit acts of aggressive war.”).

364 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 256 (“If satisfied of the criminal guilt of any organisation or group, this Tribunal should not hesitate to declare 

it to be criminal because the theory of ‘group criminality’ is new, or because it might be unjustly applied by some 

subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible 

in a manner to insure that innocent persons will not be punished. A criminal organisation is analogous to a criminal 

conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together 

and organized for a common purpose. The group must be formed or used in connection with the commission of 

crimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as has 

been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge 

of the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unless 

they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members 

of the organisation. Membership alone is not enough to come within the scope of these declarations.”).

365 See, e.g., United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE 

NMT 372 (“In line with recognized principles common to all civilized legal systems, ¶ 2 of Article II of Control 

Council Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt. 

Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission of 

crime or are connected with plans or enterprises involved in its commission, those who order or abet crime, and 

those who belong to an organization or group engaged in the commission of crime.”).
1146

punishable as a distinct offense separate from the atrocities committed by that criminal group.366

Three categories of group criminality or “joint criminal enterprise” may be identified, 

which vary according to the mental element (mens rea) of the defendant with respect to the crime 

that is committed:

367

• cases of co-perpetration where all participants in the common design possess the same 

criminal intent to commit a crime (and one or more of them actually perpetrate the crime, 

with intent);

368

• cases where the requisite mens rea comprises knowledge of the nature of the system of 

ill-treatment (e.g., a German concentration camp) and intent to further the common 

design of ill-treatment (such intent may be proved either directly or as a matter of 

inference from the nature of the accused’s authority within the camp or organizational 

hierarchy);369 and

• cases in which a “common purpose” exists because the following requirements 

 366 James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL

297, 312, 314 (1869) (noting that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders 

is a high offence against the laws of war; the offence is complete when the band is organized or joined. The 

atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they 

are, why such banditti are denounced by the laws of war.”).

367 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶195 (Jul. 15, 1999) (“Many post-World 

War II cases concerning war crimes proceed upon the principle that when two or more persons act together to 

further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the 

members of the group. Close scrutiny of the relevant case law shows that broadly speaking, the notion of common 

purpose encompasses three distinct categories of collective criminality.”).

368 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“In sum, the Appeals 

Chamber holds ... that the notion of common design as a form of accomplice liability is firmly established in 

customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal. 

As for the objective and subjective elements of the crime, the case law shows that the notion has been applied to 

three distinct categories of cases. First, in cases of co-perpetration, where all participants in the common design 

possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with 

intent).”).

369 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“Secondly, in the socalled ‘concentration camp’ cases, where the requisite mens rea comprises knowledge of the nature of the system of 

ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or 

as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.”). 

See also Prosecutor v. Krnojelac, ICTY Appeals Chamber, IT-97-25-A, Judgment, ¶96 (Sept. 17, 2003) (“The 

Appeals Chamber notes that, with regard to the crimes considered within a systemic form of joint criminal 

enterprise, the intent of the participants other than the principal offenders presupposes personal knowledge of the 

system of ill-treatment (whether proven by express testimony or a matter of reasonable inference from the accused’s 

position of authority) and the intent to further the concerted system of ill-treatment. Using these criteria, it is less 

important to prove that there was a more or less formal agreement between all the participants than to prove their 

involvement in the system. As the Appeals Chamber recalled in the Tadic Appeals Judgement, in his summary of 

the Belsen case the Judge Advocate summed up and approved the Prosecution’s legal submissions in the following 

terms: ‘The case for the Prosecution is that all the accused employed on the staff at Auschwitz knew that a system 

and a course of conduct was in force, and that, in one way or another, in furtherance of a common agreement to run 

the camp in a brutal way, all those people were taking part in that course of conduct.’”).
1147

concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal 

enterprise and to further – individually and jointly – the criminal purposes of that 

enterprise; and (ii) the foreseeability of the possible commission by other members of the 

group of offenses that do not constitute the object of the common criminal purpose.

370

 370 Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“With regard to the 

third category of cases, it is appropriate to apply the notion of ‘common purpose’ only where the following 

requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to 

further – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible 

commission by other members of the group of offences that do not constitute the object of the common criminal 

purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if 

such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In 

order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been 

able to predict this result. It should be noted that more than negligence is required. What is required is a state of 

mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the 

group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called 

dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems).”). Cf. Pinkerton v. 

United States, 328 U.S. 640, 647 (1946) (“A scheme to use the mails to defraud, which is joined in by more than one 

person, is a conspiracy. Yet all members are responsible, though only one did the mailing. The governing principle 

is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful 

project. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator 

instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was 

formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who 

counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is 

recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all.”).
1148

XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents

Chapter Contents

19.1 Introduction

19.2 Lists of Treaties and Other Documents

19.3 Lieber Code

19.4 1856 Paris Declaration Respecting Maritime Law

19.5 1864 GWS

19.6 1868 St. Petersburg Declaration

19.7 1899 and 1907 Hague Declarations on Weapons

19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations 

Regarding Land Warfare

19.9 1907 Hague X

19.10 1922 Washington Treaty on Submarines and Noxious Gases

19.11 1923 Hague Air and Radio Rules

19.12 1925 Geneva Gas and Bacteriological Protocol

19.13 1929 Geneva Conventions

19.14 1930 London Treaty for the Limitation and Reduction of Naval Armament 

and 1936 London Protocol

19.15 1935 Roerich Pact

19.16 1949 Geneva Conventions

19.17 1954 Hague Cultural Property Convention

19.18 Vienna Convention on the Law of Treaties

19.19 Biological Weapons Convention

19.20 1977 Additional Protocols to the 1949 Geneva Conventions

19.21 CCW, CCW Amended Article 1, and CCW Protocols

19.22 Chemical Weapons Convention

19.23 Rome Statute of the International Criminal Court

19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces

19.25 2005 ICRC Study on Customary International Humanitarian Law

19.26 AP III

19.1 INTRODUCTION

This appendix provides background information about certain treaties and other 

documents.

This appendix is intended to describe DoD views and practice relating to those 

documents as of the date of publication of this manual.

19.2 LISTS OF TREATIES AND OTHER DOCUMENTS

This section lists: (1) law of war treaties to which the United States is a Party; (2) arms 

control agreements to which the United States is a Party that are of direct relevance to the law of 

war; (3) examples of treaties signed but not ratified by the United States; (4) examples of treaties 
1149

that the United States has neither signed nor ratified; and (5) examples of treaties or documents 

of mainly historical value.

The categorization of a treaty as a “law of war” treaty or an “arms control” treaty is 

intended to help practitioners understand the context in which the treaty was concluded and its 

purposes. For example, a law of war treaty generally focuses on restrictions on the use of 

weapons during armed conflict, while an arms control treaty generally focuses on restricting 

development and acquisition of weapons.1

 Some treaties that are characterized below as law of 

war treaties have elements of arms control, and some treaties that are characterized below as 

arms control treaties have elements of the law of war.

Bold type within this section indicates an abbreviation used in this manual; a full list of 

abbreviations is provided at the beginning of the manual.

2

19.2.1 Law of War Treaties to Which the United States Is a Party. Law of war treaties to 

which the United States is a Party include:

• Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854.

3

• Hague Convention for the Exemption of Hospital Ships, in Time of War, from the 

Payment of all Dues and Taxes Imposed for the Benefit of the State of December 21, 

1904.

4

• Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities.

5

• Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on 

Land (Hague IV), and the Annex thereto, entitled Regulations Respecting the Laws and 

Customs of War on Land (Hague IV Regulations).

6

• Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral 

Powers and Persons in Case of War on Land (Hague V).

7

• Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic 

Submarine Contact Mines (Hague VIII).

8

 1 Refer to § 1.6.2 (Arms Control).

2 Refer to List of Abbreviations.

3 Convention with Russia, Jul. 22, 1854, 10 STAT. 1105.

4 Refer to § 7.12.4.3 (Relief From Taxation in Time of War).

5 Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 STAT. 2259.

6 Refer to § 19.8.2 (Hague IV).

7 Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 

1907, 36 STAT. 2310.

8 Refer to § 13.11 (Naval Mines); § 13.12 (Torpedoes).
1150

• Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces 

in Time of War (Hague IX).

9

• Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard 

to the Exercise of the Right of Capture in Naval War (Hague XI).

10

• Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of 

Neutral Powers in Naval War (Hague XIII).

11

• 1928 Pan American Maritime Neutrality Convention.

12

• 1930 London Treaty for the Limitation and Reduction of Naval Armament.

13

• Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of 

April 15, 1935 (Roerich Pact).

14

• Charter of the United Nations (U.N. Charter).

15

• 1949 Geneva Conventions,16 including the

o Geneva Convention for the Amelioration of the Condition of the Wounded and 

Sick in Armed Forces in the Field of August 12, 1949 (GWS);

17

o Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 

Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (GWS-Sea);

18

o Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 

1949 (GPW);

19 and

o Geneva Convention Relative to the Protection of Civilian Persons in Time of War 

 9 Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 STAT. 2351.

10 Convention Relative to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War, 

Oct. 18, 1907, 36 STAT. 2396.

11 Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 STAT. 2415.

12 Pan American Maritime Neutrality Convention, Feb. 20, 1928, 47 STAT. 1989.

13 Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London 

Protocol).

14 Refer to § 19.15 (1935 Roerich Pact).

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

16 Refer to § 19.16 (1949 Geneva Conventions).

17 Refer to § 19.16.2 (GWS).

18 Refer to § 19.16.3 (GWS-Sea).

19 Refer to § 19.16.4 (GPW).
1151

of August 12, 1949 (GC).

20

• Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 

of May 14, 1954 (1954 Hague Cultural Property Convention).

21

• Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 

Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of 

October 10, 1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its 

Amended Article 1 (CCW);

22

o CCW Amended Article 1;

23

o Protocol on Non-Detectable Fragments (Protocol I). Geneva, October 10, 1980 

(CCW Protocol I);

24

o Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and 

Other Devices as amended on May 3, 1996 (Protocol II to the 1980 CCW 

Convention as amended on May 3, 1996) (CCW Amended Mines Protocol);

25

o Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons 

(Protocol III). Geneva, October 10, 1980 (CCW Protocol III on Incendiary 

Weapons);

26

o Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), 

October 13, 1995 (CCW Protocol IV on Blinding Laser Weapons);

27 and

o Protocol on Explosives Remnants of War (Protocol V to the 1980 Convention), 

November 28, 2004 (CCW Protocol V on Explosive Remnants of War).

28

• Optional Protocol to the Convention on the Rights of the Child on the involvement of 

Children in Armed Conflict, May 25, 2000 (Child Soldiers Protocol).

29

• Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 

Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP 

 20 Refer to § 19.16.5 (GC).

21 Refer to § 19.17 (1954 Hague Cultural Property Convention).

22 Refer to § 19.21 (CCW, CCW Amended Article 1, and CCW Protocols).

23 Refer to § 19.21.1.1 (CCW Amended Scope of Application).

24 Refer to § 19.21.2 (CCW Protocol I).

25 Refer to § 19.21.3 (CCW Amended Mines Protocol).

26 Refer to § 19.21.4 (CCW Protocol III on Incendiary Weapons).

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

28 Refer to § 19.21.6 (CCW Protocol V on Explosive Remnants of War).

29 Refer to § 4.20.5.2 (Child Soldiers Protocol).
1152

III).30

19.2.2 Arms Control Agreements to Which the United States Is a Party That Are of 

Direct Relevance to the Law of War. The United States is a Party to the following treaties that 

contain restrictions on the use of weapons during armed conflict: 

• Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or 

Other Gases, and of Bacteriological Methods of Warfare of June 17, 1925 (1925 Geneva 

Gas and Bacteriological Protocol).

31

• Convention on the Prohibition of Development, Production and Stockpiling of 

Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10, 

1972 (Biological Weapons Convention).

32

• Convention on the Prohibition of Military or Any Other Hostile Use of Environmental 

Modification Techniques of May 18, 1977 (ENMOD Convention).

33

• Convention on the Prohibition of the Development, Production, Stockpiling and Use of 

Chemical Weapons and on Their Destruction of January 13, 1993 (Chemical Weapons 

Convention).34

19.2.3 Examples of Treaties Signed but Not Ratified by the United States. This section is 

not comprehensive. It lists examples of treaties that the United States has signed, but not 

ratified.

A State that has signed a treaty is obliged to refrain from acts that would defeat the object 

and purpose of a treaty, until it shall have made its intention clear not to become a Party to the 

treaty.35

• Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the 

 30 Refer to § 19.26 (AP III).

31 Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

32 Refer to § 19.19 (Biological Weapons Convention).

33 Refer to § 6.10 (Certain Environmental Modification Techniques).

34 Refer to § 19.22 (Chemical Weapons Convention).

35 Consider VCLT art. 18 (“A State is obliged to refrain from acts which would defeat the object and purpose of a 

treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, 

acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has 

expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such 

entry into force is not unduly delayed.”). See also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE 

FROM THE PRESIDENT TRANSMITTING THE VCLT 2 (“Article 18 sets forth rules governing the obligation of States not 

to defeat the object and purpose of a treaty prior to its entry into force. That obligation is limited to (a) States that 

have signed a treaty or exchanged ad referendum instruments constituting a treaty, until such time as they make 

clear their intention not to become a party, and (b) States that have expressed consent to be bound, pending entry 

into force and provided such entry into force is not unduly delayed. This rule is widely recognized in customary 

international law.”).
1153

Treaty of London of April 22, 1930 (1936 London Protocol).36

• Vienna Convention on the Law of Treaties (VCLT).37

• Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to 

the Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I).38

• Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to 

the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (AP 

II).39

• U.N. Convention on the Law of the Sea (LOS Convention).

40

• Rome Statute of the International Criminal Court of July 17, 1998 (Rome Statute).41

19.2.4 Examples of Treaties That the United States Has Neither Signed Nor Ratified. 

This section is not comprehensive. It lists examples of law of war and arms control treaties that 

the United States has neither signed nor ratified:

• Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, 

Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, 

April 16, 1856.

42

• Hague Declaration on Expanding Bullets of July 29, 1899.

43

• Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of 

Hostilities of October 18, 1907.

• Hague Convention VII Relating to the Conversion of Merchant Ships into Warships of 

October 18, 1907.

• First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in 

the Event of Armed Conflict of May 14, 1954.

• Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer 

 36 Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London 

Protocol).

37 Refer to § 19.18 (Vienna Convention on the Law of Treaties).

38 Refer to § 19.20.1 (AP I).

39 Refer to § 19.20.2 (AP II).

40 Refer to § 13.1.2 (The United States and the LOS Convention).

41 Refer to § 19.23 (Rome Statute of the International Criminal Court).

42 Refer to § 19.4 (1856 Paris Declaration Respecting Maritime Law).

43 Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).
1154

of Anti-Personnel Mines and on Their Destruction of September 18, 1997.

44

• Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property 

in the Event of Armed Conflict of March 26, 1999.

• Convention on Cluster Munitions of May 30, 2008.

45

19.2.5 Examples of Treaties or Documents of Mainly Historical Value. This section is 

not comprehensive. It lists examples of treaties and documents that are regarded as having 

mainly historical value:

• General Order No. 100, Instructions for the Government of Armies of the United States 

in the Field, 1863 (Lieber Code).

46

• Geneva Convention for the Amelioration of the Wounded in Armies in the Field of 

August 22, 1864 (1864 GWS).

47

• St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles 

under 400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration).

48

• Hague Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of 

Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature of July 

29, 1899.

49

• Hague Declaration on Asphyxiating Gases of July 29, 1899.

50

• Hague Convention II with Respect to the Laws and Customs of War on Land, with 

Annex of Regulations of July 29, 1899 (1899 Hague II).

51

• Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the 

Geneva Convention of October 18, 1907 (Hague X).

52

• Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from 

 44 Refer to § 6.12.14 (Ottawa Convention on Anti-Personnel Landmines).

45 Refer to § 6.13.4 (Convention on Cluster Munitions).

46 Refer to § 19.3 (Lieber Code).

47 Refer to § 19.5 (1864 GWS).

48 Refer to § 19.6 (1868 St. Petersburg Declaration).

49 Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

50 Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases).

51 Refer to § 19.8.1 (1899 Hague II).

52 Refer to § 19.9 (1907 Hague X).
1155

Balloons of October 18, 1907.

53

• Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of 

February 6, 1922.

54

• General Report of the Commission of Jurists to Consider and Report upon the Revision 

of the Rules of Warfare, Feb. 19, 1923 (1923 Hague Air and Radio Rules).

55

• Geneva Convention Amelioration of the Condition of the Wounded and Sick of Armies 

in the Field of July 27, 1929 (1929 GWS).

56

• Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (1929 

GPW).57

19.3 LIEBER CODE

General Order No. 100, Instructions for the Government of Armies of the United States 

in the Field, 1863, issued on April 24, 1863, is often called the “Lieber Code” because it was 

prepared by Francis Lieber.58 It is an early example of the law of war being implemented 

through military instructions or regulations.59

The Lieber Code was the first comprehensive publication on the law of war for U.S. 

armed forces and is regarded as an important work of historical significance in the law of war.60 

 53 Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

54 Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases).

55 Refer to § 19.11 (1923 Hague Air and Radio Rules).

56 Refer to § 19.13.1 (1929 GWS).

57 Refer to § 19.13.2 (1929 GPW).

58 E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies 

of the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF 

THE UNITED STATES IN THE FIELD, 2 (Government Printing Office, 1898) (“The following ‘Instructions for the 

Government of Armies of the United States in the Field,’ prepared by Francis Lieber, L.L.D., and revised by a Board 

of Officers, of which Major General E.A. Hitchcock is president, having been approved by the President of the 

United States, he commands that they be published for the information of all concerned.”).

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

60 See, e.g., Kononov v. Latvia, European Court of Human Rights, App. No. 36376/04, ¶63 (May 17, 2010) (“The 

Lieber Code 1863 is regarded as the first attempt to codify the laws and customs of war. Although only applicable 

to American forces, it represented a summary of the laws and customs of war existing at the time and was influential 

in later codifications.”); Elihu Root, Francis Lieber, 7 AJIL 453, 457 (1913) (“In the Brussels Conference of 1874, 

convened at the instance of the Emperor of Russia for the purpose of codifying the laws and customs of war, the 

Russian delegate, Baron Jomini, as president of the conference, declared that the project of an international 

convention then presented had its origin in the rules of President Lincoln. The convention agreed upon at Brussels 

was not ratified, but in 1880 the Institute of International Law made the work of the Brussels Conference and the 

work of Lieber, which so far as it was of general application was incorporated in that convention, the basis of a 

manual of the laws of war upon land; and finally, in The Hague Conferences of 1899 and 1907, the conventions with 

respect to the laws and customs of war on land gave the adherence of the whole civilized world in substance and 
1156

The Lieber Code established rules governing martial law, military jurisdiction, the 

treatment of spies and deserters, and the treatment of POWs. Many key law of war principles, 

such as the principle of military necessity, were codified in the Lieber Code.

61 However, parts of 

the Lieber Code reflect 19th century understandings of the law of war that have been modified 

by treaties that the United States has ratified or by subsequent customary international law. For 

example, the Lieber Code permitted the denial of quarter in certain circumstances.

62 However, 

denying quarter in those circumstances is no longer acceptable.

63

The Lieber Code was prepared during the Civil War. The Confederate forces agreed with 

some provisions of the Lieber Code, but disagreed with others.64 

The Lieber Code reflected rules for “regular war” or what today would be classified as 

international armed conflict. Such rules were applied to the Confederate forces for humanitarian 

reasons, even though the United States did not recognize the Confederacy as a legitimate 

government or State.65 In this way, the Lieber Code is an example of the application of the 

doctrine of recognition of belligerency.66

19.4 1856 PARIS DECLARATION RESPECTING MARITIME LAW

The 1856 Paris Declaration respecting Maritime Law is an early multilateral law of war 

treaty that was intended to be open to accession by all States, including States that did not 

participate in its negotiation.

67 This treaty illustrates how law of war treaties may be written 

with a view towards being able to be accepted and applied by all States.

 

effect to those international rules which President Lincoln made binding upon the American armies fifty years 

ago.”).

61 Refer to § 2.2 (Military Necessity).

62 LIEBER CODE art. 61 (“All troops of the enemy known or discovered to give no quarter in general, or to any 

portion of the army, receive none.”).

63 Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

64 James A. Seddon, Letter to Robert Ould, Jun. 24, 1863, reprinted in FRED C. AINSWORTH & JOSEPH W. KIRKLEY,

VI THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE 

ARMIES, SERIES II, 41 (1899) (“Order No. 100 is a confused, unassorted, and undiscriminating compilation from the 

opinion of the publicists of the last two centuries, some of which are obsolete, others repudiated; and a military 

commander under this code may pursue a line of conduct in accordance with principles of justice, faith, and honor, 

or he may justify conduct correspondent with the warfare of the barbarous hordes who overran the Roman Empire, 

or who, in the Middle Ages, devastated the continent of Asia and menaced the civilization of Europe.”).

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

66 Refer to § 3.3.3.2 (Assertion of War Powers by a State Engaged in Hostilities Against a Non-State Armed Group).

67 Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, 

Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in 1 AJIL SUPPLEMENT: 

OFFICIAL DOCUMENTS 89 (1907) (“The Governments of the undersigned Plenipotentiaries engage to bring the 

present Declaration to the knowledge of the states which have not taken part in the Congress of Paris, and to invite 

them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by 

the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain the 

general adoption thereof will be crowned with full success.”).
1157

The United States is not a Party to the 1856 Paris Declaration. The 1856 Paris 

Declaration’s provision that blockades must be effective in order to be binding reflects 

customary international law.68

19.5 1864 GWS

The Geneva Convention for the Amelioration of the Wounded in Armies in the Field of 

August 22, 1864 (1864 GWS) was one of the earliest multilateral law of war treaties.

69

The 1864 GWS provided for the use of the red cross as a distinctive emblem to help

identify medical personnel.70 It also provided for wounded and sick combatants to be collected 

and cared for regardless of the nation of their armed forces.

71

The United States acceded to the 1864 GWS on March 1, 1882.72 The 1864 GWS was 

replaced by the GWS in relations between the Parties to the GWS.73

19.6 1868 ST. PETERSBURG DECLARATION

The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Weighing 

Under 400 Grams Weight (1868 St. Petersburg Declaration) was promulgated by an international 

conference held in St. Petersburg, Russia on December 11, 1868. The 1868 St. Petersburg 

Declaration prohibits Parties from, “in case of war among themselves, the employment, by their 

military or naval forces, of any projectile of less weight than four hundred grammes, which is 

explosive, or is charged with fulminating or inflammable substances.”74

The United States is not a Party to the 1868 St. Petersburg Declaration.

 68 Refer to § 13.10.2.3 (Effectiveness of the Blockade).

69 Convention for the Amelioration of the Wounded in Armies in the Field, Aug. 22, 1864, 22 STAT. 940.

70 Refer to § 7.15.1.1 (Red Cross).

71 Refer to § 7.5.2.2 (Affirmative Obligation to Provide Adequate Care).

72 Chester A. Arthur, Proclamation Regarding the 1864 GWS, Jul. 26, 1882, 22 STAT. 940, 950-51 (“And whereas 

the President of the United States of America, by and with the advice and consent of the Senate, did, on the first day 

of March, one thousand eight hundred and eighty-two, declare that the United States accede to the said Convention 

of the 22d of August, 1864, and also accede to the said Convention of October 20, 1868; And whereas on the ninth 

day of June, one thousand eight hundred and eighty-two, the Federal Council of the Swiss Confederation, in virtue 

of the final provision of a certain minute of the exchange of the ratifications of the said Convention at Berne, 

December 22, 1864, did, by a formal declaration, accept the said adhesion of the United States of America, as well 

in the name of the Swiss Confederation as in that of the other contracting States; And whereas, furthermore, the 

government of the Swiss Confederation has informed the Government of the United States that the exchange of the 

ratifications of the aforesaid additional articles of 20th October, 1868, to which the United States of America have in 

like manner adhered as aforesaid, has not yet taken place between the contracting parties, and that these articles 

cannot be regarded as a treaty in full force and effect:”).

73 Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

74 The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95, 96 (1907) 

(“The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by their 

military or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or is 

charged with fulminating or inflammable substances.”).
1158

The language in the Preamble of the 1868 St. Petersburg Declaration that notes that the 

“employment of arms which uselessly aggravate the sufferings of disabled men” would “be 

contrary to the laws of humanity” is an early statement of the prohibition against weapons 

calculated to cause unnecessary suffering, which is a principle that is found in treaties to which 

the United States is a Party and in customary international law.

75

The prohibition in the Declaration against “any projectile of less weight than four 

hundred grammes, which is explosive, or is charged with fulminating or inflammable 

substances” does not reflect customary international law.76 For example, for many decades 

without legal controversy, States have used, and continue to use, tracer ammunition, grenades, 

explosive bullets, or other projectiles of less weight than four hundred grams with a burning or 

explosive capability.77

19.7 1899 AND 1907 HAGUE DECLARATIONS ON WEAPONS

19.7.1 1899 Declaration on Expanding Bullets. The 1899 Declaration on Expanding 

Bullets prohibits Parties from using “bullets which expand or flatten easily in the human body, 

such as bullets with a hard envelope which does not entirely cover the core or is pierced with 

incisions.”78 The Declaration only creates obligations for Parties to the Declaration in 

international armed conflicts in which all the parties to the conflict are also Parties to the 

Declaration.

79

The United States is not a Party to the 1899 Declaration on Expanding Bullets and does 

not regard the 1899 Declaration on Expanding Bullets as customary international law applicable 

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

76 U.S. RESPONSE TO ICRC CIHL STUDY 524 (“Since the St. Petersburg Declaration, there has been considerable 

State practice involving the anti-personnel use of exploding bullets, despite the ICRC’s statement that governments 

have ‘adhered’ to the Declaration. Two participants in the ICRC-hosted 1974 Lucerne Meeting of Experts on 

certain weapons conventional weapons concluded: ‘At present it is widely held that in view of the development in 

weapons technology and state practice the St. Petersburg Declaration cannot be interpreted literally, or in any case 

that it has not as such become declaratory of customary international law.... [T]he prohibition contained in it serves 

to illustrate the principle prohibiting the causing of unnecessary suffering, at least as it was contemplated in 1868.’ 

U.S. legal reviews have detailed State practice contrary to the ICRC’s statement and consistent with the conclusion 

contained in the above quotation.”) (amendments to internal quote shown in U.S. Response to ICRC CIHL Study).

77 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General 

Report, Part II: Rules of Aërial Warfare, art. 18, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL 

DOCUMENTS 12, 21 (1938) (“The use of tracer, incendiary or explosive projectiles by or against an aircraft is not 

prohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, and 

to those which are not.”). Refer to § 6.5.4.3 (Exploding Bullets).

78 Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29, 

1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 155-56 (1907) (“The Contracting Parties agree 

to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard 

envelope which does not entirely cover the core, or is pierced with incisions.”).

79 Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29, 

1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 156 (1907) (“The present Declaration is only 

binding for the Contracting Powers in the case of a war between two or more of them. It shall cease to be binding 

from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting 

Power.”).
1159

in either international or non-international armed conflicts.

80

19.7.2 1899 Declaration on Asphyxiating Gases. The 1899 Declaration on Asphyxiating 

Gases was concluded at The Hague on July 29, 1899.81 This 1899 Declaration prohibits the use 

of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.82

The United States did not ratify this declaration.

This declaration was followed by the 1922 Washington Treaty on Submarines and 

Noxious Gases, and the 1925 Geneva Gas and Bacteriological Protocol.

83 The United States is a 

Party to the 1925 Geneva Gas and Bacteriological Protocol and applies the broader prohibition in 

it on the use of asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or 

devices.

84

19.7.3 1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From

Balloons. In the 1899 Hague (IV, 1), Parties agreed to prohibit, for a term of five years, the 

launching of projectiles and explosives from balloons, or by other new methods of similar 

nature.85 The United States deposited its instrument of ratification to the 1899 Hague 

Declaration (IV, 1) on September 4, 1900.86 

The 1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and 

Explosives from Balloons sought to renew the expired 1899 Hague Declaration (IV, 1).87 The 

 80 Refer to § 6.5.4.4 (Expanding Bullets).

81 Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or 

Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157, 158 (1907).

82 Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or 

Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157 (1907) (“The 

Contracting Powers agree to abstain from the use of projectiles the object of which is the diffusion of asphyxiating 

or deleterious gases.”).

83 Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases); § 19.12 (1925 Geneva Gas and 

Bacteriological Protocol).

84 Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

85 Declaration Prohibiting for a Term of Five Years the Launching of Projectiles or Explosives from Balloons, or By 

Any Other New Methods of Similar Nature, Jul. 29, 1899, 32 STAT. 1839 (“The Contracting Powers agree to 

prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods 

of similar nature.”).

86 Theodore Roosevelt, Proclamation Regarding the 1899 Declaration Prohibiting the Launching of Projectiles or 

Explosives from Balloons, Nov. 1, 1901, 32 STAT. 1839, 1842 (“And Whereas, the said Declaration was duly ratified 

by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and 

by the Governments of the other Powers aforesaid, with the exception of those of China and Turkey; And Whereas, 

in pursuance of a stipulation of the said Declaration, the ratifications thereof were deposited at the Hague on the 4th 

day of September, 1900, by the Plenipotentiaries of the Governments of the United States of America, AustriaHungary, Belgium, Denmark, Spain, France, Italy, the Netherlands, Persia, Portugal, Roumania, Russia, Siam, 

Sweden and Norway, and Bulgaria ... .”).

87 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439 (“The Undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at 

The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression 
1160

United States deposited its instrument of ratification to the 1907 Hague Declaration (XIV) on 

November 27, 1909.88 This treaty was intended to have effect until the end of the Third Hague 

Peace Conference.89 The Third Hague Peace Conference never met due to the outbreak of 

World War I.

90 The application of the 1907 Hague Declaration (XIV) is limited, inter alia, due 

to its general participation clause providing that it only applies if all the parties to the conflict are 

also Parties to the Declaration.

91 During World War II, the War Department took the position 

that the 1907 Hague Declaration (XIV) is not binding and will not be observed.92

19.8 1899 HAGUE II AND 1907 HAGUE IV CONVENTIONS AND ANNEXED REGULATIONS 

REGARDING LAND WARFARE

19.8.1 1899 Hague II. The Hague Convention II with Respect to the Laws and Customs 

of War on Land of July 29, 1899 (1899 Hague II), with its annexed Regulations, was an early 

multilateral law of war treaty that contains provisions that were incorporated into later law of 

war treaties.

Article 1 of the 1899 Hague II Regulations addressed the criteria for militia and volunteer 

corps to qualify as lawful belligerents and for their members to be entitled to POW status if 

captured; these criteria are repeated in Article 4 of the GPW.93 In addition, Articles 4-20 of the

1899 Hague II Regulations provide basic rules for the care and protection of POWs.

The United States deposited its instrument of ratification to the 1899 Hague II on April 5, 

 

in the Declaration of St. Petersburg of the 29th November (11th December), 1868, and being desirous of renewing 

the declaration of The Hague of the 29th July, 1899, which was now expired,”).

88 William H. Taft, Proclamation Regarding the 1907 Declaration Prohibiting the Discharge of Projectiles and 

Explosives from Balloons, Feb. 28, 1910, 36 STAT. 2439, 2442-43 (“And whereas the said Declaration has been duly

ratified by the Government of the United States of America, by and with the advice and consent of the Senate 

thereof, and by the Governments of China, Great Britain, the Netherlands, Bolivia, and Salvador, and the 

ratifications of the said Governments were, as provided for by the said Declaration, deposited by their respective 

plenipotentiaries with the Netherlands Government on November 27, 1909.”).

89 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439 (“The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference, 

the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.”).

90 SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND 

OTHER DOCUMENTS 309 (2004) (“The Declaration of 1907 was to remain in force until the projected Third Peace 

Conference. This Conference never having met, the Declaration of 1907 is still formally in force today.”).

91 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439, 2440 (“The present Declaration is only binding on the Contracting Powers in a case of war between two or

more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the 

belligerents is joined by a non-Contracting Power.”).

92 WAR DEPARTMENT CIRCULAR NO. 136, § 1 (May 7, 1942) (“The Hague Declaration Number XIV, October 18, 

1907, prohibiting the discharge of projectiles and explosives from balloons (H.D. XIV), is not binding and will not 

be observed.”).

93 Refer to § 4.6.1 (GPW 4A(2) Conditions in General).
1161

1902.94

The 1899 Hague II was followed by Hague IV, which replaces the 1899 Hague II as 

between Parties to Hague IV.

95 Not all the States that ratified the 1899 Hague II have also 

ratified Hague IV.96

19.8.2 Hague IV. States sought to expand upon and clarify provisions of 1899 Hague II

and the 1899 Hague II Regulations through the Hague Convention IV Respecting the Laws and 

Customs of War on Land of October 18, 1907 (Hague IV), and annexed Regulations (Hague IV 

Regulations).97 

The United States deposited its instrument of ratification to Hague IV on November 27, 

1909.98

19.8.2.1 Hague IV and Customary International Law. Provisions of Hague IV 

and Hague IV Regulations have been found to reflect customary international law.99

 94 Theodore Roosevelt, Proclamation Regarding the 1899 Hague II, Apr. 11, 1902, 32 STAT. 1803, 1825 (“And 

whereas the said Convention was duly ratified by the Government of the United States of America, by and with the 

advice and consent of the Senate thereof, and by the Governments of the other Powers aforesaid with the exception 

of Sweden and Norway and Turkey; And whereas, in pursuance of the stipulations of Article III of the said 

Convention the ratifications of the said Convention were deposited at the Hague ... on the 5th Day of April, 1902, 

by the Plenipotentiary of the Government of the United States of America:”).

95 Refer to § 19.8.2.2 (Relationship Between the 1907 Hague IV and the 1899 Hague II).

96 ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 68-70 (3rd ed., 2000) (“[The 1907 

Hague Convention] was intended to replace 1899 Hague Convention II as between states parties to both agreements. 

However, of the forty-six states which had become parties to the 1899 Convention, eighteen did not become parties 

to the 1907 Convention ... . They or their successor states ... remained formally bound by the 1899 Convention.”).

97 Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 STAT. 2277, 2279 (The 

Contracting Parties “[h]ave deemed it necessary to complete and explain in certain particulars the work of the First 

Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a 

wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.”).

98 William H. Taft, Proclamation Regarding the Hague IV, Feb. 28, 1907, 36 STAT. 2277, 2309 (“And whereas the 

said Convention has been duly ratified by the Government of the United States of America, by and with the advice 

and consent of the Senate thereof, and by the Governments of Austria-Hungary, Bolivia, Denmark, Germany, Great 

Britain, Mexico, the Netherlands, Russia, Salvador, and Sweden, and the ratifications of the said Governments were, 

under the provisions of Article 5 of the said Convention, deposited by their respective plenipotentiaries with the 

Netherlands Government on November 27, 1909;”).

99 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE 

IMT 253-54 (concluding that “by 1939 these rules laid down in [Hague IV] were recognized by all civilized nations, 

and were regarded as being declaratory of the laws and customs of war”); United States v. Krupp et al., IX TRIALS 

OF WAR CRIMINALS BEFORE THE NMT 1340 (concurring in judgment “that the Hague Convention No. IV of 1907 to 

which Germany was a party had, by 1939, become customary law and was, therefore, binding on Germany not only 

as treaty law but also as customary law.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALS 

OF WAR CRIMINALS BEFORE THE NMT 535-38 (concluding that provisions of Hague IV Reg. and 1929 GPW 

reflected customary international law relating to the treatment of prisoners of war); United States, et al. v. Araki, et 

al., Majority Judgment, International Military Tribunal for the Far East, 48,491, reprinted in NEIL BOISTER &

ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND

JUDGMENTS 102 (2008) (explaining that although certain treaties, such as Hague IV and Hague V, might not be 
1162

For example, Article 42 of the Hague IV Regulations, which provides a standard for 

when the law of belligerent occupation applies, is regarded as customary international law.

100

19.8.2.2 Relationship Between the 1907 Hague IV and the 1899 Hague II. The 

Hague IV, duly ratified, shall as between its Parties be substituted for the 1899 Hague II. The 

1899 Hague II remains in force as between its Parties that do not also ratify Hague IV.101 

19.8.3 Martens Clause. The Preamble to the 1899 Hague II contains a clause known as 

the Martens Clause because of its association with a delegate to the Hague Peace Conference, 

F.F. de Martens:102

Until a more complete code of the laws of war is issued, the High Contracting 

Parties think it right to declare that in cases not included in the Regulations 

adopted by them, populations and belligerents remain under the protection and 

empire of the principles of international law, as they result from the usages 

established between civilized nations, from the laws of humanity, and the 

requirements of the public conscience.103

A similar formulation was included in subsequent treaties, such as the Hague IV, the 1949 

Geneva Conventions, and the CCW.

104

 applicable by their terms, “the Convention remains as good evidence of the customary law of nations, to be 

considered by the Tribunal along with all other available evidence in determining the customary law to be applied in 

any given situation.”).

100 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

101 HAGUE IV art. 4 (“The present Convention, duly ratified, shall as between the Contracting Powers, be substituted 

for the Convention of the 29th July, 1899, respecting the Laws and Customs of War on Land. The Convention of 

1899 remains in force as between the Powers which signed it, and which do not also ratify the present 

Convention.”).

102 Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78, 

79 (2000) (“Proposed by the Russian delegate to the Hague Peace Conference, the eminent jurist F.F. de Martens, 

the clause has ancient antecedents rooted in natural law and chivalry.”).

103 1899 HAGUE II preamble (“Until a more complete code of the laws of war is issued, the High Contracting Parties 

think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents 

remain under the protection and empire of the principles of international law, as they result from the usages 

established between civilized nations, from the laws of humanity, and the requirements of the public conscience”).

104 See, e.g., HAGUE IV preamble (“Until a more complete code of the laws of war has been issued, the High 

Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the 

inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as 

they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the 

public conscience.”); GWS art. 63 (providing that denunciation of the Convention “shall in no way impair the 

obligations which Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, 

as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of 

public conscience.”); GWS-SEA art. 62 (same); GPW art. 142 (same); GC art. 158 (same); CCW preamble (“in 

cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian 

population and the combatants shall at all times remain under the protection and authority of the principles of 

international law derived from established custom, from the principles of humanity and from the dictates of public 

conscience,”). Consider AP I art. 1(2) (“In cases not covered by this Protocol or by other international agreements, 

civilians and combatants remain under the protection and authority of the principles of international law derived 
1163

The Martens Clause was a compromise following difficult and unresolved debates at the 

1899 Hague Peace Conference about the status of resistance fighters in occupied territory.105 

However, the language of the clause is not limited to that specific context, and the Martens 

Clause has been cited in many other contexts.106 

The Martens clause reflects the idea that when no specific rule applies, the principles of 

the law of war form the general guide for conduct during war.107

19.9 1907 HAGUE X

On November 27, 1909, the United States deposited its instrument of ratification to the 

1907 Hague Convention (X) for the Adaption to Maritime Warfare of the Principles of the 

Geneva Convention of October 18, 1907.108

This treaty was followed by the GWS-Sea, which replaced it in relations between Parties 

to the GWS-Sea.

109

 from established custom, from the principles of humanity and from the dictates of public conscience.”); AP II 

preamble (“Recalling that, in cases not covered by the law in force, the human person remains under the protection 

of the principles of humanity and the dictates of the public conscience,”).

105 See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 9 (3rd ed., 2000) (“The wording of 

the Martens Clause was agreed at the 1899 Hague Peace Conference for a specific reason: it was a compromise 

following difficult and unresolved debates about whether or not the inhabitants of occupied territory had a right of 

resistance.”); United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340-41 (“It must 

also be pointed out that in the preamble to the Hague Convention No. IV, it is made abundantly clear that in cases 

not included in the Regulations, the inhabitants and the belligerents remain under the protection and the rule of the 

principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of 

humanity and dictates of the public conscience. As the records of the Hague Peace Conferences of 1899 which 

enacted the Hague Regulations show, great emphasis was placed by the participants on the protection of invaded 

territories and the preamble just cited, also known as the “Mertens Clause,” was inserted at the request of the 

Belgian delegate, Mertens, who was, as were others, not satisfied with the protection specifically guaranteed to 

belligerently occupied territory. Hence, not only the wording (which specifically mentions the ‘inhabitants’ before it 

mentions the ‘belligerents’) but also the discussions which took place at the time make it clear that it refers 

specifically to belligerently occupied country.”).

106 See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶78) (“The 

Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the 

Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an 

effective means of addressing the rapid evolution of military technology.”).

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

108 William H. Taft, Proclamation Regarding the Hague X, Feb. 28, 1910, 36 STAT. 2371, 2395 (“And whereas the 

said Convention has been duly ratified by the Government of the United States of America, by and with the advice 

and consent of the Senate thereof, and by the Governments of Germany, Austria-Hungary, China, Denmark, 

Mexico, the Netherlands, Russia, Bolivia, and Salvador, and the ratifications of the said Governments were, under 

the provisions of Article 23 of the said Convention, deposited by their respective plenipotentiaries with the 

Netherlands Government on November 27, 1909.”).

109 Refer to § 19.16.3.1 (Relationship Between the 1907 Hague X and the GWS-Sea).
1164

19.10 1922 WASHINGTON TREATY ON SUBMARINES AND NOXIOUS GASES

The United States signed the Treaty Relating to the Use of Submarines and Noxious 

Gases in Warfare on February 6, 1922.110 Article 6 of the treaty provided that the treaty shall 

take effect on the deposit of all the ratifications.111 France did not ratify the treaty, and it did not 

enter into force.112 

The language of Article 5 of the 1922 Washington Treaty dealing with gas warfare

corresponds to language in the 1925 Protocol for the Prohibition of the Use in War of 

Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at 

Geneva, June 17, 1925.113 The 1925 Geneva Gas and Bacteriological Protocol, however, also 

prohibits bacteriological methods of warfare.114

19.11 1923 HAGUE AIR AND RADIO RULES

In 1922, the Conference on the Limitation of Armament at Washington adopted a 

resolution for the appointment of a Commission representing the United States of America, the 

British Empire, France, Italy, and Japan, and later, the Netherlands, to consider the application of 

the existing law of war rules to new agencies of warfare and whether changes should be 

adopted.115 It was agreed that the program of the Commission would be limited to the 

preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time of 

war.116 With John Bassett Moore as a U.S. Delegate and the President of the Commission, the 

 110 Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, reprinted in 16 AJIL 

SUPPLEMENT: OFFICIAL DOCUMENTS 57, 60 (1922).

111 Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, art. 6, Feb. 6, 1922, reprinted in 16

AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) (“The present Treaty shall be ratified as soon as possible 

in accordance with the constitutional methods of the Signatory Powers and shall take effect on the deposit of all the 

ratifications, which shall take place at Washington.”).

112 SCHINDER & TOMAN, THE LAWS OF ARMED CONFLICTS 877 (1988) (“The Washington Conference of 1922 on the 

Limitation of Armaments, in which five of the victorious Powers of World War I took part, adopted the present 

Treaty, which due to the failure of France to ratify it, did not enter into force.”).

113 Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

114 Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

115 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 

19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (“The Conference on the Limitation 

of Armament at Washington adopted at its sixth plenary session on the 4th February, 1922, a resolution for the 

appointment of a Commission representing the United States of America, the British Empire, France, Italy and Japan 

to consider the following questions: (a) Do existing rules of international law adequately cover new methods of 

attack or defence resulting from the introduction or development, since The Hague Conference of 1907, of new 

agencies of warfare? (b) If not so, what changes in the existing rules ought to be adopted in consequence thereof as 

a part of the law of nations? ... With the unanimous concurrence of the Powers mentioned in the first of the above 

resolutions an invitation to participate in the work of the Commission was extended to and accepted by the 

Netherlands Government.”).

116 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 

19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (“It was also agreed that the 

programme of the Commission should be limited to the preparation of rules relating to aerial warfare, and to rules 

relating to the use of radio in time of war.”).
1165

Commission prepared a set of rules for the control of radio in time of war, as well as a set of 

rules for aerial warfare.117

The 1923 Hague Air Rules were not, however, subsequently adopted as a treaty by the 

United States.

Some provisions in the 1923 Hague Air Rules may reflect customary international law. 

For example, the 1923 Hague Air Rules recognize the permissibility of using tracer, incendiary,

or explosive projectiles by or against aircraft, including by States that are Parties to the 1868 

Declaration of St. Petersburg.118

Many of the other provisions in the 1923 Hague Air Rules, however, do not reflect 

customary international law. For example, the 1923 Hague Air Rules provide that the crew of 

military aircraft must be exclusively military.119 The 1949 Geneva Conventions, however,

contemplate that crews of military aircraft may include civilian members.120 As another 

example, certain efforts in the 1923 Hague Air Rules to limit the effects of attacks also do not 

reflect customary international law.

121

19.12 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL

The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or 

Other Gases, and of Bacteriological Methods of Warfare, of June 17, 1925, prohibits the use of 

asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or devices, and the 

 117 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 

19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1-2 (1938) (“The United States Government 

proposed that the Commission should meet on the 11th December, 1922, at The Hague, and the representatives of 

the six Powers mentioned above assembled on that date in the Palace of Peace. At the second meeting of the 

Commission the Honorable John Bassett Moore, First Delegate of the United States, was elected President of the 

Commission. The Commission has prepared a set of rules for the control of radio in time of war, which are 

contained in Part I of this report, and a set of rules for aërial warfare, which are contained in Part II of this report.”).

118 Refer to § 6.5.4.3 (Exploding Bullets); § 19.6 (1868 St. Petersburg Declaration).

119 Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part 

II: Rules of Aërial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 

18 (1938) (“A military aircraft shall be under the command of a person duly commissioned or enlisted in the 

military service of the state; the crew must be exclusively military.”).

120 Refer to § 14.3.3.3 (Military Aircraft – Command and Crew).

121 J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 

122, 123 (1973) (“In the application of the laws of war, it is important that there be a general understanding in the 

world community as to what shall be legitimate military objectives which may be attacked by air bombardment 

under the limitations imposed by treaty or by customary international law. Attempts to limit the effects of attacks in 

an unrealistic manner, by definition or otherwise, solely to the essential war making potential of enemy States have 

not been successful. For example, such attempts as the 1923 Hague Rules of Air Warfare, proposed by an 

International Commission of Jurists, and the 1956 ICRC Draft Rules for the Limitation of the Dangers Incurred by 

the Civilian Population in Time of War were not accepted by States and therefore do not reflect the laws of war 

either as customary international law or as adopted by treaty.”).
1166

use of bacteriological methods of warfare.

122

This treaty followed the 1899 Declaration on Asphyxiating Gases and the 1922 

Washington Treaty on Submarines and Noxious Gases.123 This treaty also followed widespread 

use of chemical weapons in World War I.

On November 25, 1969, President Nixon announced the intention of the administration to 

seek Senate advice and consent to ratification of the 1925 Geneva Gas and Bacteriological 

Protocol as part of U.S. policies relating to chemical and biological weapons.124 The United

States deposited its instrument of ratification to the 1925 Geneva Gas and Bacteriological 

Protocol on April 10, 1975.

125 

The United States took a reservation that the “Protocol shall cease to be binding on the 

government of the United States with respect to the use in war of asphyxiating, poisonous or 

other gases, and of all analogous liquids, materials, or devices, in regard to an enemy state if 

such state or any of its allies fails to respect the prohibitions laid down in this Protocol.”126 This 

reservation would permit use by the United States of chemical weapons and agents in response, 

but would not limit in any way the Protocol’s prohibition with respect to biological weapons.127

Other States, including France, Belgium, Canada, the USSR (now Russia), and the United 

Kingdom issued similar statements upon ratification.

128

 122 Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices); 

§ 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).

123 Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases); § 19.10 (1922 Washington Treaty on Submarines 

and Noxious Gases).

124 Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969 

PUBLIC PAPERS OF THE PRESIDENTS 968 (“As to our chemical warfare program, the United States: —Reaffirms its 

oft-repeated renunciation of the first use of lethal chemical weapons. –Extends this renunciation to the first use of 

incapacitating chemicals. Consonant with these decisions, the administration will submit to the Senate, for its

advice and consent to ratification, the Geneva Protocol of 1925 which prohibits the first use in war of ‘asphyxiating, 

poisonous or other Gases and of Bacteriological Methods of Warfare.’ The United States has long supported the 

principles and objectives of this Protocol. We take this step toward formal ratification to reinforce our continuing 

advocacy of international constraints on the use of these weapons.”).

125 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (“RATIFICATIONS Instruments 

deposited with the Government of France on: 10 April 1975 UNITED STATES OF AMERICA (With effect from 

10 April 1975.)”).

126 United States, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 

1541 UNTS 484 (“That the said Protocol shall cease to be binding on the Government of the United States with 

respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or 

devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the 

Protocol.”).

127 William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925

GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“This reservation would permit the retaliatory use by the 

United States of chemical weapons and agents, but would not limit in any way the Protocol’s prohibition with 

respect to biological weapons.”).

128 France, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 9, 1926, 94 LNTS 

67 (“The said Protocol shall ipso facto cease to be binding on the Government of the French Republic in regard to 

any enemy State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”); 
1167

This treaty was followed by the Chemical Weapons Convention and Biological Weapons 

Convention, which, inter alia, place restrictions on the use, development, production, and 

possession of weapons addressed by the 1925 Geneva Gas and Bacteriological Protocol.

129

19.13 1929 GENEVA CONVENTIONS

19.13.1 1929 GWS. The United States deposited its instrument of ratification to the 1929 

GWS on February 4, 1932.130 

The 1929 GWS was replaced by the GWS in relations between Parties to the GWS.

131 

All the Parties to the 1929 GWS have become Parties to the GWS. 

19.13.2 1929 GPW. The United States deposited its instrument of ratification to the 1929 

GPW on February 4, 1932.132 

The 1929 GPW was replaced by the GPW in relations between Parties to the GPW.

133 

All the Parties to the 1929 GPW have become Parties to the GPW.

Provisions of the 1929 GPW were found to reflect customary international law by war 

crimes tribunals after World War II.134 The 1929 GPW may be relevant to understanding 

provisions of the 1949 GPW because some provisions of the 1949 GPW were drawn from the 

 

Belgium, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Dec. 4, 1928, 94 LNTS 

67 (“(2) The said Protocol shall ipso facto cease to be binding on the Belgian Government in regard to any enemy 

State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”); Canada, 

Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 6, 1930, 94 LNTS 71 (“The 

said Protocol shall cease to be binding on His Britannic Majesty towards any State at enmity with Him whose armed 

forces, or whose allies de jure or in fact fail to respect the prohibitions laid down in the Protocol.”); Union of Soviet 

Socialist Republics, Statement on Accession to the 1925 Geneva Gas and Bacteriological Protocol, Apr. 5, 1928, 94 

LNTS 71 (“(2) The said Protocol shall cease to be binding on the Government of the Union of Soviet Socialist 

Republics in regard to all enemy States whose armed forces or whose Allies de jure or in fact do not respect the 

restrictions which are the object of this Protocol.”); British Empire, Statement on Ratification of the 1925 Geneva 

Gas and Bacteriological Protocol, Apr. 9, 1930, 94 LNTS 69 (“The said Protocol shall cease to be binding on His 

Britannic Majesty towards any Power at enmity with Him whose armed forces, or the armed forces of whose allies, 

fail to respect the prohibitions laid down in the Protocol.”).

129 Refer to § 19.22 (Chemical Weapons Convention); § 19.19 (Biological Weapons Convention).

130 Herbert Hoover, Proclamation Regarding the 1929 GPW, Aug. 4, 1932, 47 STAT. 2021, 2073 (“And whereas, the 

said Convention has been duly ratified on the part of the United States of America and the instrument of ratification 

of the United States of America was deposited with the Government of Switzerland on February 4, 1932; And 

whereas, in accordance with Article 92 thereof, the said Convention became effective in respect of the United States 

of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).

131 Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

132 Herbert Hoover, Proclamation Regarding the 1929 GWS, Aug. 4, 1932, 47 STAT. 2074, 2101 (“And whereas, the 

said Convention has been duly ratified on the part of the United States of America and the instrument of ratification 

of the United States of America was deposited with the Government of Switzerland on February 4, 1932: And 

whereas, in accordance with Article 33 thereof, the said Convention became effective in respect of the United States 

of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).

133 Refer to § 19.16.4.1 (Relationship Between the GPW and the 1929 GPW).

134 Refer to § 9.1.1 (Brief History of POW Law).
1168

1929 GPW or reflect an effort to improve upon the 1929 GPW.

19.14 1930 LONDON TREATY FOR THE LIMITATION AND REDUCTION OF NAVAL ARMAMENT AND 

1936 LONDON PROTOCOL

Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval 

Armament (1930 London Treaty) and the 1936 London Protocol set forth identical rules 

regarding submarine warfare, and the obligations of surface warships and submarines with 

respect to the sinking of merchant vessels, including the obligation to put merchant vessels’

passengers and crew in a place of safety.135

The United States deposited its instrument of ratification to the 1930 London Treaty on 

October 27, 1930.136 Although other aspects of the treaty expired on December 31, 1936, Article 

22 remains in force.137 Signatories to the 1930 London Treaty desired that as many States as 

possible accept the rules in Article 22; thus, they concluded the 1936 London Protocol with the 

same language as that in Article 22 and invited other States to accede to the 1936 London 

Protocol.

138 The United States signed the 1936 Protocol on November 6, 1936.139

19.15 1935 ROERICH PACT

The 1935 Roerich Pact was concluded in Washington on April 15, 1935.140 It provides 

for the respect and protection of “historic monuments, museums, scientific, artistic, educational 

and cultural institutions” and their personnel in time of peace as well as in war.

141 Such 

 135 Refer to § 13.7.1 (General Principle – Same Rules Applicable to Both Submarine and Surface Warships); 

§ 13.5.2 (Attack of Enemy Merchant Vessels); § 15.15.3 (Destruction of Neutral Prizes).

136 Herbert Hoover, Proclamation Regarding the 1930 Treaty for the Limitation and Reduction of Naval Armament, 

Jan. 1, 1931, 46 STAT. 2858, 2885 (“AND WHEREAS the ratification by the United States of America, subject to 

the understandings, set forth therein, ... deposited at London on the 27th day of October, one thousand nine hundred 

and thirty,”).

137 Treaty for the Limitation and Reduction of Naval Armament art. 23, Apr. 22, 1930, 46 STAT. 2858, 2882 (“The 

present Treaty shall remain in force until the 31st December, 1936, subject to the following exceptions: (1) Part IV 

shall remain in force without limit of time; (2) the provisions of Articles 3, 4 and 5, and of Article 11 and Annex II 

to Part II so far as they relate to aircraft carriers, shall remain in force for the same period as the Washington 

Treaty.”).

138 Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 

22, 1930, preamble, Nov. 6, 1936, 173 LNTS 353, 355 (“And whereas all the signatories of the said Treaty desire 

that as great a number of Powers as possible should accept the rules contained in the said Part IV as established rules 

of international law; The undersigned, representatives of their respective Governments, bearing in mind the said 

Article 22 of the Treaty, hereby request the Government of the United Kingdom of Great Britain and Northern 

Ireland forthwith to communicate the said rules, as annexed hereto, to the Governments of all Powers which are not 

signatories of the said Treaty, with an invitation to accede thereto definitely and without limit of time.”).

139 Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 

22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (“Signed in London, the 6th day of November, nineteen hundred and 

thirty-six. For the Government of the United States of America: Robert Worth BINGHAM.”).

140 Pan American Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 

1935, 49 STAT. 3267.

141 ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions 

shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection 
1169

institutions and personnel receive protection as cultural property under the 1954 Hague Cultural 

Property or the general protection afforded civilian objects and persons.

142

The United States deposited its instrument of ratification to the 1935 Roerich Pact on July 

13, 1935.143

This treaty was followed by the 1954 Hague Cultural Property Convention.144 All Parties 

to the Roerich Pact are Parties to the 1954 Hague Cultural Property Convention. 

The 1954 Hague Cultural Property Convention is supplementary to the Roerich Pact, but 

the distinctive emblem of the 1954 Hague Cultural Property Convention is to be used instead of 

the distinguishing flag described in Article III of the 1935 Roerich Pact, in situations where the 

1954 Hague Cultural Property Convention and the Regulations for its execution provide for the 

use of this distinctive emblem.145

19.16 1949 GENEVA CONVENTIONS

The four 1949 Geneva Conventions were adopted at a Diplomatic Conference at Geneva 

on August 12, 1949. More than 193 States have ratified the 1949 Geneva Conventions.146

The United States signed each of the 1949 Geneva Conventions on August 12, 1949. The 

United States deposited its instrument of ratification to each convention on August 2, 1955.147

The United States has viewed many of the protections embodied in the 1949 Geneva 

Conventions as reflecting appropriate U.S. practice in armed conflict regardless of formal treaty 

 shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded 

to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well 

as in war.”). Refer to § 5.18.1.1 (Definition of Cultural Property – Notes on Terminology).

142 Refer to § 5.18 (Protection of Cultural Property During Hostilities); § 5.5 (Discrimination in Conducting 

Attacks).

143 Franklin D. Roosevelt, Proclamation Regarding the Roerich Pact, Oct. 25, 1935, 49 STAT. 3267, 3274 (“AND 

WHEREAS the said Treaty has been duly ratified by the United States of America, whose instrument of ratification 

was deposited with the Pan American Union on July 13, 1935;”).

144 Refer to § 19.17 (1954 Hague Cultural Property Convention).

145 Refer to § 19.17.1.2 (Relationship Between the 1935 Roerich Pact and the 1954 Hague Cultural Property 

Convention).

146 See DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements of the 

United States in Force on January 1, 2013, 465-66 (2013).

147 213 UNTS 378 (GWS Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955 

UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 382 (GWS-Sea Ratification, 

“Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take 

effect on 2 February 1956.)”); 213 UNTS 383 (GPW Ratification, “Instrument deposited with the Swiss Federal 

Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 384 

(GC Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF 

AMERICA (To take effect on 2 February 1956.)”).
1170

obligations.

148

The 1949 Geneva Conventions followed earlier multilateral treaties that addressed the 

same subjects, including the 1864 GWS, the 1907 Hague X, the 1899 and 1907 Hague 

Conventions on the Law of Land Warfare, and the 1929 Geneva Conventions.

149

The Commentaries to the 1949 Geneva Conventions, published by the International 

Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been 

helpful in understanding the provisions of the 1949 Geneva Conventions and have often been 

cited in this manual. As noted by the International Committee of the Red Cross, however, these 

Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only 

participant States would be qualified to give.150

19.16.1 Common Provisions in the 1949 Geneva Conventions. The four 1949 Geneva 

Conventions contain a number of common provisions, i.e., provisions that are substantively the 

same (if not identical in text) among the conventions.

The four Geneva Conventions have this duplication, in part, because each convention is 

designed to be effective, even if a State only ratifies that particular convention.151 For example, 

the list of persons entitled to receive POW status in Article 4 of the GPW is repeated in the GWS 

and GWS-Sea.152

19.16.1.1 Common Terms in the 1949 Geneva Conventions – Notes on 

 148 See SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the 

Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 32 (Jun. 27, 1955) 

(“Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate, 

and by encouraging their most widespread adoption. As emphasized in this report, the requirements of the four 

conventions to a very great degree reflect the actual policies of the United States in World War II. The practices 

which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future 

conflict without the injunctions of formal treaty obligations.”).

149 Refer to § 19.5 (1864 GWS); § 19.9 (1907 Hague X); § 19.8 (1899 Hague II and 1907 Hague IV Conventions 

and Annexed Regulations Regarding Land Warfare); § 19.13 (1929 Geneva Conventions).

150 See, e.g., GWS COMMENTARY Foreword (“Although published by the International Committee, the Commentary 

is the personal work of its authors. The Committee, moreoever, whenever called upon for an opinion on a provision 

of an international Convention, always takes care to emphasize that only the participant States are qualified, through 

consultation between themselves, to give an oficial and, as it were, authentic interpretation of an intergovernmental 

treaty.”).

151 See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 257 (“Mr. NAJAR (Israel): ... 

We have a number of Conventions here, with different signatories, which constitute distinct legal instruments. It is 

not at all surprising that one more of them should contain Articles of a more or less similar character; but one 

Convention is distinguished from another by being a self-contained legal instrument, and by its signatories.”); id. at 

283 (“Mr. FILIPPOV (Union of Soviet Socialist Republics): ... In the amendment submitted to us an allusion is made 

to Article 20 of the Wounded and Sick Convention. This reference seems to us inadmissible, as the Prisoners of 

War Convention is an entirely independent document and the allusions in its Articles to other Conventions, in 

particular the Wounded and Sick, might involve difficulties if the Parties to the conflict were not signatories to both 

Conventions.”).

152 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
1171

Terminology. In the 1949 Geneva Conventions, “Power” generally refers to a State.153

In the 1949 Geneva Conventions, the Detaining Power refers to the State that holds the 

POW or internee.154

In the 1949 Geneva Conventions, the Protecting Power refers to a neutral State that helps 

implement the Conventions.

155

19.16.1.2 Common Article 2 of the 1949 Geneva Conventions. Common Article 2 

of the four 1949 Geneva Conventions declares that the provisions of each convention 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.”156 This 

language is used to help explain when the law of war applies.157

Common Article 2 also provides that each convention “shall also apply to all cases of 

partial or total occupation of the territory of a High Contracting Party, even if the said occupation 

meets with no armed resistance.”158 Common Article 2, thus, helps explain that the law of 

belligerent occupation is applicable, even if the occupying forces are not opposed by force.159

The 1954 Hague Cultural Property Convention repeats language used in Common Article 

2, and the CCW incorporates language from Common Article 2 by reference.

19.16.1.3 Common Article 3 of the 1949 Geneva Conventions. Common Article 3 

to the 1949 Geneva Conventions has been described as a “Convention in miniature” that 

addresses non-international armed conflict.160 It was the first provision in a multilateral law of 

 153 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the 

Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 39 (“Finally, al 

Qaeda is not a ‘Power[] in conflict’ that can ‘accept[] and appl[y]’ GC4 within the meaning of article 2(3). See, e.g., 

G.I.A.D. Draper, The Red Cross Conventions 16 (1958) (arguing that ‘in the context of Article 2, para. 3, ‘Powers’ 

means States capable then and there of becoming Contracting Parties to these Conventions either by ratification or 

by accession’); 2B Final Record of the Diplomatic Conference of Geneva of 1949, at 108 (explaining that article 

2(3) would impose an ‘obligation to recognize that the Convention be applied to the non-Contracting adverse State, 

in so far as the latter accepted and applied the provisions thereof’) (emphasis added) (‘Final Record’); supra note 4, 

at 23 (using ‘non-Contracting State’ interchangeably with ‘non-Contracting Power’ and ‘non-Contracting Party’).”).

154 Refer to § 9.1.2.1 (GPW – Notes on Terminology); § 10.1.1.1 (GC – Notes on Terminology).

155 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

156 GWS art. 2 (“In addition to the provisions which shall be implemented in peacetime, the present Convention 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.”); GWS-SEA art. 2 (same); GPW art. 2 

(same); GC art. 2 (same).

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

158 GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a High 

Contracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art. 

2 (same); GC art. 2 (same).

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

160 GPW COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention in 

miniature’. It applies to non-international conflicts only, and will be the only Article applicable to them until such 
1172

war treaty that addressed humane treatment during non-international armed conflict to gain 

widespread ratification by States.161

Although Common Article 3 only applies by its terms to non-international armed 

conflicts, Common Article 3 reflects a minimum yardstick of humane treatment protections that 

apply more broadly, including during international armed conflict.

162

19.16.1.4 POW Status and the 1949 Geneva Conventions. Article 4 of the GPW 

explains which persons are entitled to receive POW status under the GPW.163 This provision is 

mirrored in the GWS and GWS-Sea, as those conventions are intended to protect persons who 

are entitled to POW status under the GPW.164

The GC excludes from its protection those persons who are entitled to POW status under 

the GPW.165

19.16.1.5 Retained Personnel and the 1949 Geneva Conventions. Retained 

personnel are addressed by both the GPW and the GWS.166

GWS. The GWS is often called the first Geneva Convention.167 19.16.2 The GWS 

addresses the following subjects on land: (1) the protection of the wounded, sick, and dead; (2) 

the rights, duties, and liabilities of military medical and religious personnel; and (3) the 

protection of military medical units, facilities, and transports.168

19.16.2.1 Relationship Between the GWS and Earlier Conventions. The GWS 

replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations 

between the Parties to the GWS.

169

GWS-Sea. The GWS-Sea is often called the second Geneva Convention.170 19.16.3 The 

 time as a special agreement between the Parties has brought into force between them all or part of the other 

provisions of the Convention.”).

161 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

162 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

163 Refer to § 9.3.2 (Persons Entitled to POW Status).

164 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).

165 Refer to § 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).

166 Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

167 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 

of August 12, 1949, 75 UNTS 31.

168 Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea, 

GPW, and GC).

169 GWS art. 59 (“The present Convention replaces the Conventions of 22 August 1864, 6 July 1906, and 27 July 

1929, in relations between the High Contracting Parties.”).

170 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of 

Armed Forces at Sea of August 12, 1949, 75 UNTS 85.
1173

GWS-Sea addresses the following subjects at sea: (1) the protection of the wounded, sick, 

shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious 

personnel; and (3) the protection of military medical units, facilities, and transports.171

19.16.3.1 Relationship Between the 1907 Hague X and the GWS-Sea. The GWSSea replaces the Hague X in relations between the Parties to the GWS-Sea.172

GPW. The GPW is often called the third Geneva Convention.173 19.16.4 The GPW 

addresses the protection of POWs.174

19.16.4.1 Relationship Between the GPW and the 1929 GPW. The GPW replaces 

the 1929 GPW in relations between the Parties to the GPW.

175

19.16.4.2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague 

IV. In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV, 

and that are Parties to the GPW, the GPW shall be complementary to Chapter II of the 

Regulations annexed to the 1899 Hague II or the 1907 Hague IV.176

GC. The GC is often called the fourth Geneva Convention.

177 19.16.5 The GC addresses 

the protection of civilians in the hands of a party a conflict, including civilian internees.

178 The 

GC also addresses belligerent occupation.

19.16.5.1 Application of Different Parts of the GC. Different parts of the GC 

apply to different situations.

In general, the GC uses the concept of protected person to define the individuals who are 

entitled to receive its protections.179 The provisions of Part II of the GC (articles 13-26) are 

wider in application; they do not only apply to those persons who are protected persons under the 

 171 Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea, 

GPW, and GC).

172 GWS-SEA art. 58 (“The present Convention replaces the Xth Hague Convention of October 18, 1907, for the 

adaptation to Maritime Warfare of the principles of the Geneva Convention of 1906, in relations between the High 

Contracting Parties.”).

173 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135.

174 Refer to § 9.1.2 (Interpretation and Application of the GPW).

175 GPW art. 134 (“The present Convention replaces the Convention of July 27, 1929, in relations between the High 

Contracting Parties.”).

176 GPW art. 135 (“In the relations between the Powers which are bound by the Hague Convention respecting the 

Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and which are 

parties to the present Convention, this last Convention shall be complementary to Chapter II of the Regulations 

annexed to the above-mentioned Conventions of the Hague.”).

177 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS 

287.

178 Refer to § 10.1.1 (Interpretation and Application of the GC).

179 Refer to § 10.3 (Protected Person Status).
1174

GC.

180 These provisions cover the whole of the populations of the countries in conflict.181 

Section I (articles 27-34) of Part III of the GC includes provisions that are common to the 

home territories of the parties to the conflict and to occupied territories.

Section II (articles 35-46) of Part III of the GC addresses aliens in the home territory of a 

party to the conflict.

Section III (articles 47-78) of Part III of the GC addresses occupied territories.

Section IV (articles 79-135) of Part III of the GC provides regulations for the treatment of 

internees. 

19.16.5.2 Relationship Between the GC and the 1899 Hague II and the 1907 

Hague IV Conventions. In the relations between States that are bound by the 1899 Hague II, or 

the 1907 Hague IV, and that are Parties to the GC, the GC shall be supplementary to Sections II 

(Articles 22-41 – Hostilities) and III (Articles 42-56 – Military Authority Over the Territory of 

the Hostile State) of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV.

182

19.17 1954 HAGUE CULTURAL PROPERTY CONVENTION

The 1954 Hague Cultural Property Convention addresses the protection of cultural 

property during international armed conflict.183 It addresses personnel who are engaged in duties 

related to the protection of cultural property.184 It also has provisions that apply during 

occupation.185 Some provisions of the 1954 Hague Cultural Property Convention apply to noninternational armed conflict.186

The 1954 Hague Cultural Property Convention was adopted at a diplomatic conference 

on May 14, 1954.187 The United States deposited its instrument of ratification to the Hague 

 180 Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under 

the GC).

181 GC art. 13 (“The provisions of Part II cover the whole of the populations of the countries in conflict, without any 

adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to 

alleviate the sufferings caused by war.”).

182 GC art. 154 (“In the relations between the Powers who are bound by The Hague Conventions respecting the 

Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties 

to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations 

annexed to the above mentioned Conventions of The Hague.”).

183 Refer to § 5.18 (Protection of Cultural Property).

184 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).

185 Refer to § 11.19 (Protection of Cultural Property During Occupation).

186 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC); § 17.11 (Protection of 

Cultural Property in NIAC).

187 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 

240.
1175

Cultural Property Convention on March 13, 2009, and stated four understandings.

188

Two Protocols to the 1954 Hague Cultural Property Convention have been adopted.189 

The United States has neither signed nor ratified either one.

19.17.1 Relationship Between the 1954 Hague Cultural Property Convention and Earlier 

Treaties. 

19.17.1.1 Relationship Between the 1954 Hague Cultural Property Convention

and Certain 1899 and 1907 Hague Conventions. In the relations between States that are bound 

by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV) 

(Hague IV) and Concerning Naval Bombardment in Time of War (Hague IX), whether those of 

July 29, 1899, or those of October 18, 1907, and that are Parties to the 1954 Hague Cultural 

Property Convention, the 1954 Hague Cultural Property Convention shall be supplementary to 

the Hague IX Convention and to the Regulations annexed to the Hague IV Convention.

190

19.17.1.2 Relationship Between the 1935 Roerich Pact and the 1954 Hague 

Cultural Property Convention. In the relations between States that are bound by the 1935 

Roerich Pact and that are Parties to the 1954 Hague Cultural Property Convention, the 1954 

Hague Cultural Property Convention shall be supplementary to the Roerich Pact and shall 

substitute for the distinguishing flag described in Article III of the Roerich Pact the emblem 

defined in Article 16 of the 1954 Hague Cultural Property Convention—in cases in which the 

1954 Hague Cultural Property Convention and the Regulations for its execution provide for the 

use of this distinctive emblem.191

19.18 VIENNA CONVENTION ON THE LAW OF TREATIES

The Vienna Convention on the Law of Treaties (VCLT) was adopted on May 23, 1969,

by the U.N. Conference on the Law of Treaties. 

 188 2575 UNTS 7 (“RATIFICATION (WITH DECLARATIONS) United States of America Deposit of instrument with the 

Director-General of the United Nations Educational, Scientific and Cultural Organization: 13 March 2009”).

189 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 358; 

Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed 

Conflict, Mar. 26, 1999, 2253 UNTS 172.

190 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(1) (“In the relations between Powers which are bound 

by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV) and concerning Naval 

Bombardment in Time of War (IX), whether those of 29 July, 1899 or those of 18 October, 1907, and which are 

Parties to the present Convention, this last Convention shall be supplementary to the aforementioned Convention 

(IX) and to the Regulations annexed to the aforementioned Convention (IV) and shall substitute for the emblem 

described in Article 5 of the aforementioned Convention (IX) the emblem described in Article 16 of the present 

Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of 

this distinctive emblem.”).

191 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(2) (“In the relations between Powers which are bound 

by the Washington Pact of l 5 April 1935 for the Protection of Artistic and Scientific Institutions and of Historic 

Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be 

supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact 

the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the 

Regulations for its execution provide for the use of this distinctive emblem.”).
1176

The United States signed the VCLT on April 24, 1970. President Nixon transmitted the 

VCLT to the Senate for its advice and consent to ratification on November 22, 1971.192

The United States is not a Party to the VCLT but has viewed many of its provisions as 

reflecting customary international law.

19.19 BIOLOGICAL WEAPONS CONVENTION

After negotiations at the Conference of the Committee on Disarmament at Geneva and at 

the United Nations, the Biological Weapons Convention was opened for signature on April 10, 

1972.

193

The United States deposited its instrument of ratification on March 26, 1975.

194

The Biological Weapons Convention followed the 1925 Geneva Gas and Bacteriological 

Protocol.

195

In implementation of the Biological Weapons Convention, Congress enacted legislation 

prohibiting development, production, transfer, acquisition, or possession of a biological agent, 

toxin, or delivery system for use as a weapon.196

19.20 1977 ADDITIONAL PROTOCOLS TO THE 1949 GENEVA CONVENTIONS

A diplomatic conference between 1974 and 1977 negotiated two protocols to the 1949 

Geneva Conventions that addressed international armed conflict (AP I) and non-international 

armed conflict (AP II).

Because these treaties were negotiated at the same time, they may provide information on 

States’ views on differences between the rules applicable in international armed conflict and the 

 192 Richard Nixon, Letter of Transmittal, Nov. 22, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT

III.

193 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) 

and Toxin Weapons and on Their Destruction, 1015 UNTS 164.

194 1015 UNTS 165.

195 Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

196 18 U.S.C. § 175 (“Prohibitions with respect to biological weapons. (a) In general. -- Whoever knowingly 

develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery 

system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, 

or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. There 

is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the 

United States. (b) Additional offense. -- Whoever knowingly possesses any biological agent, toxin, or delivery 

system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, 

protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 

years, or both. In this subsection, the terms ‘biological agent’ and ‘toxin’ do not encompass any biological agent or 

toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, 

or otherwise extracted from its natural source. (c) Definition. -- For purposes of this section, the term ‘for use as a 

weapon’ includes the development, production, transfer, acquisition, retention, or possession of any biological agent, 

toxin, or delivery system for other than prophylactic, protective, bona fide research, or other peaceful purposes.”).
1177

rules applicable in non-international armed conflict.197

19.20.1 AP I. Protocol (I) Additional to the Geneva Conventions, and Relating to the 

Protection of Victims of International Armed Conflicts (AP I) contains rules on the conduct of 

hostilities during international armed conflict that are intended to supplement the 1949 Geneva 

Conventions.

198 For example, AP I provides additional protections for the wounded and sick,

and provides for the establishment of an international humanitarian fact-finding commission.199 

AP I, however, does not apply to the use of nuclear weapons.200

The United States signed AP I and stated two understandings.201 As explained below, AP 

I is a significant law of war treaty that the United States has decided not to ratify.

On January 28, 1987, President Reagan informed the Senate that AP I would not be 

submitted for the Senate’s advice and consent to ratification because it is “fundamentally and 

irreconcilably flawed.”202 However, President Reagan noted that the United States would 

support “the positive provisions of Protocol I that could be of real humanitarian benefit if 

generally observed by parties to international armed conflicts.”203 

This manual references AP I provisions, some of which are consistent with DoD practice. 

Unless explicitly noted, no determinations are made about whether any of these AP I provisions 

reflect customary international law.

19.20.1.1 Examples of AP I Provisions Incorporated Into Other Treaties That the 

 197 Refer to § 17.2.2.2 (Considered Absence of a Restriction in NIAC).

198 Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims 

of International Armed Conflicts of June 8, 1977.

199 Refer to § 7.20 (AP I Provisions on the Wounded, Sick, and Shipwrecked); § 18.14.1.1 (AP I – International 

Humanitarian Fact-Finding Commission (IHFFC)).

200 Refer to § 6.18.3 (AP I Provisions and Nuclear Weapons).

201 United States, Statement on Signature of AP I, 1125 UNTS 404, 434 (“1. It is the understanding of the United 

States of America that the rules established by this Protocol were not intended to have any effect on and do not 

regulate or prohibit the use of nuclear weapons. 2. It is the understanding of the United States of America that the 

phrase ‘military deployment preceding the launching of an attack’ in Article 44, paragraph 3, means any movement 

towards a place from which an attack is to be launched.”).

202 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III-IV 

(“Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain 

meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would 

undermine humanitarian law and endanger civilians in war. ... These problems are so fundamental in character that 

they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate 

in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint 

Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.”).

203 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV 

(“In this case, for example, we can reject Protocol I as a reference for humanitarian law, and at the same time devise 

an alternative reference for the positive provisions of Protocol I that could be of real humanitarian benefit if 

generally observed by parties to international armed conflicts. We are therefore in the process of consulting with 

our allies to develop appropriate methods for incorporating these positive provisions into the rules that govern our 

military operations, and as customary international law.”).
1178

United States Has Accepted. Some AP I provisions have been incorporated into later treaties to 

which the United States is a Party. For example, AP I’s definition of military objective in Article 

51(2) is substantially similar to the definition in Article 2(6) of CCW Amended Mines Protocol 

and Article 1(3) of CCW Protocol III on Incendiary Weapons.

204 Similarly, requirements under 

the Child Soldiers Protocol and U.S. law are comparable to AP I’s requirements with respect to 

child soldiers.205

19.20.1.2 Examples of AP I Provisions That Are Consistent With Longstanding 

U.S. Practice. Certain provisions of AP I may not reflect customary international law, but may 

be consistent with longstanding U.S. practice. For example, AP I requires that Parties to AP I 

ensure that legal advisers are available to advise military commanders, and the United States has 

long employed legal advisers in this role.

206 Similarly, AP I requires that Parties to AP I 

undertake a legal review of, inter alia, new weapons, and the DoD policy and practice of 

conducting weapons reviews preceded this provision of AP I.207

19.20.1.3 Examples of AP I Provisions That the United States Has Supported. 

The United States has expressed support for certain AP I provisions. For example, United States 

has supported and sought to promote as a matter of national policy fundamental guarantees for 

the treatment of persons detained during international armed conflict that are reflected in Article 

75 of AP I.

208

19.20.1.4 Examples of AP I Provisions Based on a Principle That the U.S. 

Supports, Even Though the Provision Is Not Necessarily Customary International Law Nor 

Militarily Acceptable in All Respects. In some cases, the United States has supported a principle 

underlying an AP I provision, but the provision may not be customary international law or 

militarily acceptable in all respects. For example, the United States has supported the principle 

recognized in AP I that journalism is generally to be regarded as a civilian activity.209 

Even where the United States has expressed support for an underlying customary 

principle that AP I provisions are based upon, the United States may disagree that the language 

of the provision reflects customary international law. For example, with regard to “direct 

participation in hostilities,” the United States has supported the customary principle underlying 

Article 51(3) of AP I, but has disagreed that the language of that provision reflects customary 

international law.210 Similarly, the intricacy of the provisions of AP I on objects indispensable to 

the survival of the civilian population make it doubtful that such provisions could be 

characterized as customary international law, although the United States has supported the 

 204 Refer to § 5.6.3 (Objects That Are Military Objectives).

205 Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).

206 Refer to § 18.5 (Role of Judge Advocates and Legal Advisers).

207 Refer to § 6.2.3 (AP I Requirement for Legal Review of a New Weapon, Means, or Method of Warfare).

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

209 Refer to § 4.24.1 (Status of Journalists – Generally Civilian).

210 Refer to § 5.8.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).
1179

principle that the starvation of civilians not be used as a method of warfare.211 In addition, 

although the United States has supported the principle that civilian civil defense organizations 

and their personnel be respected and protected as civilians, a number of military operational 

problems have been identified with respect to the system of protection for civil defense 

established by AP I.212

19.20.1.5 Examples of AP I Provisions to Which the United States Has Objected. 

The United States has objected to certain provisions of AP I. For example, the United States has 

objected to AP I provisions on:

• national liberation movements;213

• mercenaries;

214

• works and installations containing dangerous forces;215

• criteria for lawful combatant status;216

• the obligation of combatants to distinguish themselves;217

• environmental protection;218

• presumptions in favor of civilian status in conducting attacks;219

• prohibiting the use of enemy flags, insignia, or uniforms to shield, favor, protect, or 

impede military operations;220 and

• reprisals.

221

19.20.2 AP II. Protocol (II) Additional to the Geneva Conventions, and Relating to the 

 211 Refer to § 5.20.4 (AP I Provision on Objects Indispensable to the Survival of the Civilian Population); § 5.20.1

(Starvation – Distinction).

212 Refer to § 4.22 (AP I Provisions on Civil Defense Personnel).

213 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).

214 Refer to § 4.21.1 (Treaties on Mercenaries).

215 Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).

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

217 Refer to § 5.4.8.2 (AP I Obligation for Combatants to Distinguish Themselves During Attacks or Military 

Operations Preparatory to an Attack).

218 Refer to § 6.10.3.1 (AP I Provisions on Environmental Protection).

219 Refer to § 5.4.3.2 (AP I Presumptions in Favor of Civilian Status in Conducting Attacks).

220 Refer to § 5.23.3 (AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect, or Impede 

Military Operations).

221 Refer to § 18.18.3.4 (AP I Provisions on Reprisals).
1180

Protection of Victims of Non-International Armed Conflict (AP II) addresses certain types of 

non-international armed conflicts.222 AP II reaffirmed, elaborated upon, and supplemented the 

protections contained in Common Article 3 of the 1949 Geneva Conventions.

223

19.20.2.1 The United States and AP II. The United States is not a Party to AP II.

The United States signed AP II and stated one understanding on December 12, 1977.

224 

President Reagan transmitted AP II to the Senate for its advice and consent to ratification on 

January 29, 1987.225

After the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the 

Bush Administration moved AP II down on the Executive’s treaty priority list, indicating that it 

did not seek Senate action on the treaty at that time, so that the Administration could study the 

treaty in light of the decision. On March 7, 2011, after interagency review, the Obama 

Administration urged the Senate to act as soon as practicable on AP II.226

Although the United States is not a Party to AP II, reviews have concluded that the

provisions of AP II are consistent with U.S. practice, and that any issues could be addressed with 

reservations, understandings, and declarations.

227

19.20.2.2 AP II’s Requirements for Its Application. By its terms, AP II does not 

apply to all armed conflicts not of an international character. Instead, according to its terms, AP 

II only applies to armed conflicts that are not covered by Article 1 of AP I and that take place in 

the territory of a Party to AP II between its armed forces and dissident armed forces or other 

organized armed groups, which, under responsible command, exercise such control over a part of 

its territory as to enable them to carry out sustained and concerted military operations and to 

 222 Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims 

of Non-International Armed Conflicts of June 8, 1977.

223 Refer to § 19.16.1.3 (Common Article 3 of the 1949 Geneva Conventions).

224 United States, Statement on Signature of AP II, 1125 UNTS 699 (“It is the understanding of the United States of 

America that the terms used in Part III of this Protocol which are the same as the terms defined in Article 8 of 

Protocol I shall so far as relevant be construed in the same sense as those definitions.”).

225 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III.

226 The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee Policy, 

Mar. 7, 2011 (“Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees 

that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by 

President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to 

which 165 States are a party. An extensive interagency review concluded that United States military practice is 

already consistent with the Protocol’s provisions.”).

227 George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII

(“With the above caveats, the obligations contained in Protocol II are no more than a restatement of the rules of 

conduct with which U.S. military forces would almost certainly comply as a matter of national policy, constitutional 

and legal protections, and common decency.”); Hillary Rodham Clinton, Secretary of State and Robert Gates, 

Secretary of Defense, Letter to Senators Kerry and Lugar, Mar. 7, 2011 (“We have now completed a comprehensive 

interagency review of Protocol II, and, subject to reservations, understandings, and declarations that were submitted 

to the Senate in 1987, along with refinements and additions that we will submit, assess it to be consistent with 

current military practice and beneficial to our national security and foreign policy interests.”).
1181

implement AP II.

228

This threshold limits the application of AP II to a subset of armed conflicts that would be 

covered by Common Article 3 of the 1949 Geneva Conventions. For example, AP II would only 

cover conflicts in which dissident armed forces or other organized armed groups are organized 

and disciplined like regular armed forces.229 In addition, non-State armed groups must be in a 

position to implement AP II before it is deemed to apply to all parties to the conflict.230

Although AP II specifies more strict requirements for its application, President Reagan, 

in submitting AP II to the Senate for its advice and consent to ratification, recommended that the 

United States take the position that it would apply AP II to all armed conflicts that would be 

covered by Common Article 3 of the 1949 Geneva Conventions.231

19.21 CCW, CCW AMENDED ARTICLE 1, AND CCW PROTOCOLS

19.21.1 CCW. The Convention on Certain Conventional Weapons (CCW) and Protocols

I, II, and III were adopted at Geneva on October 10, 1980. Subsequent conferences adopted: (1) 

an amended Protocol II; (2) Protocols IV and V; and (3) an amendment to apply the CCW and 

Protocols I, II, III, and IV to non-international armed conflicts.

Protocols to the CCW are subject to ratification or other acceptance by a State before 

such protocols enter into force for that State. Additional protocols that have been adopted by a 

Conference of States Parties enter into force as provided in paragraphs 3 and 4 of Article 5 of the 

 228 AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 

12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are 

not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to 

the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a 

High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, 

under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained 

and concerted military operations and to implement this Protocol.”).

229 BOTHE, PARTSCH, & SOLF, NEW RULES 626 (AP II art. 1, ¶2.5) (“Regarding the concept of ‘organized armed 

groups’ the ICRC delivered the following statement during the negotiations in Working Group B of Committee I: 

The expression does not mean any armed band acting under a leader. Such armed groups must be structured and 

possess organs, and must therefore have a system for allocating authority and responsibility: they must also be 

subject to rules of internal discipline. Consequently the expression ‘organized armed groups’ does not imply any 

appreciable difference in degree of organization from that of regular armed forces.”).

230 ICRC AP COMMENTARY 1353 (¶4470) (“This is the fundamental criterion which justifies the other elements of 

the definition: being under responsible command and in control of a part of the territory concerned, the insurgents 

must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet, 

apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold has 

a degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual 

circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since 

they have the minimum infrastructure required therefor.”).

231 George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII

(“We are therefore recommending that U.S. ratification be subject to an understanding declaring that the United 

States will apply the Protocol to all conflicts covered by Article 3 common to the 1949 Conventions ... . This 

understanding will also have the effect of treating as non-international these so-called ‘wars of national liberation’ 

described in Article 1(4) of Protocol I which fail to meet the traditional test of an international conflict.”).
1182

CCW.232 Paragraphs 3 and 4 of Article 5 of the CCW provide, inter alia, that each of the 

CCW’s Protocols may only enter into force for a State after that State has notified its consent to 

be bound by it.233 Thus, a State’s notification of its consent to be bound by a Protocol is a 

prerequisite to the Protocol’s entry into force for that State.

Similarly, amendments to the CCW or its Protocols are subject to ratification or other 

acceptance by a State before such amendments enter into force for that State. Amendments to 

the CCW or its Protocols are adopted and enter into force in the same manner as the CCW and 

its Protocols.234 As discussed above, a State must provide notification of its consent to be bound 

by a CCW Protocol before that Protocol’s entry into force for that State. Similarly, the CCW is 

subject to ratification or other acceptance by States.235 And, the CCW only enters into force for 

a State after that State has deposited its instrument of ratification or other acceptance.236 Thus, a 

State’s acceptance of any amendment to the CCW or its Protocols is a prerequisite to that 

amendment’s entry into force for that State.

The United States is a Party to the: (1) CCW; (2) CCW Protocol I; (3) CCW Amended 

Mines Protocol; (4) CCW Protocol III on Incendiary Weapons; (5) CCW Protocol IV on 

Blinding Laser Weapons; and (6) CCW Protocol V on Explosive Remnants of War. The United 

States deposited its instrument of ratification to the CCW and accepted Protocols I and II on 

March 25, 1995. The United States provided notification of its consent to be bound by the CCW 

Amended Mines Protocol on May 24, 1999. The United States deposited its instrument of 

ratification to the Amendment to Article 1 of the CCW, and provided notification of its consent 

 232 CCW art. 8(2)(b) (Additional protocols to the CCW adopted at a conference convened under Article 8(2) “shall 

enter into force as provided in paragraphs 3 and 4 of Article 5 of this Convention.”); CCW art. 8(2)(b) (Additional 

protocols to the CCW adopted at a conference convened under Article 8(3) “shall enter into force as provided in 

paragraphs 3 and 4 of Article 5 of this Convention.”).

233 CCW art. 5 (“3. Each of the Protocols annexed to this Convention shall enter into force six months after the date 

by which twenty States have notified their consent to be bound by it in accordance with paragraph 3 or 4 of Article 4 

of this Convention. 4. For any State which notifies its consent to be bound by a Protocol annexed to this Convention 

after the date by which twenty States have notified their consent to be bound by it, the Protocol shall enter into force

six months after the date on which that State has notified its consent so to be bound.”). See also CCW art. 4 (“3. 

Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each 

State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this 

Convention or of accession thereto, that State shall notify the Depositary of its consent to be bound by any two or 

more of these Protocols. 4. At any time after the deposit of its instrument of ratification, acceptance or approval of 

this Convention or of accession thereto, a State may notify the Depositary of its consent to be bound by any annexed 

Protocol by which it is not already bound.”).

234 CCW art. 8(1)(b) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(1) 

“shall be adopted and shall enter into force in the same manner as this Convention and the annexed Protocols, ... .”); 

CCW art. 8(3)(a) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(3) 

“shall be adopted and enter into force in accordance with subparagraph 1 (b) above.”)).

235 CCW art. 4 (“1. This Convention is subject to ratification, acceptance or approval by the Signatories. Any State 

which has not signed this Convention may accede to it.”).

236 See CCW art. 5 (“1. This Convention shall enter into force six months after the date of deposit of the twentieth 

instrument of ratification, acceptance, approval or accession. 2. For any State which deposits its instrument of 

ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification, 

acceptance, approval or accession, this Convention shall enter into force six months after the date on which that 

State has deposited its instrument of ratification, acceptance, approval or accession.”).
1183

to be bound by Protocols III, IV, and V, on January 21, 2009.

19.21.1.1 CCW Amended Scope of Application. For the United States, the CCW 

and its Protocols apply to non-international armed conflict.237

On December 21, 2001, Parties to the CCW adopted an amendment to Article 1 of the 

CCW that modified the application of the CCW and Protocols I, II, III, and IV to apply to noninternational armed conflicts.238 The CCW Amended Mines Protocol and CCW Protocol V on 

Explosive Remnants of War also apply to non-international armed conflicts.239

The amended scope of the CCW does not prejudice additional protocols to the CCW 

adopted after January 1, 2002, which may apply, exclude, or modify the scope of their 

application in relation to Article 1 of the CCW.240 

The United States deposited its instrument of ratification to the amendment to Article 1 of 

the CCW on January 21, 2009.241

U.S. policy before the entry into force for the United States of the amendment to Article 1 

of the CCW was to apply the CCW, Protocol I, Protocol II, and CCW Protocol IV on Blinding 

Laser Weapons to non-international armed conflict. At the time of the deposit of U.S. 

instruments of ratification of the CCW, CCW Protocol I, and CCW Protocol II, the United States 

declared its intent to apply the provisions of those instruments to all armed conflicts referred to 

in Articles 2 and 3 of the GPW, i.e., both international and non-international armed conflicts.242 

Similarly, before the United States ratified the amendment to Article 1 of the CCW, U.S. policy 

was to apply the CCW Protocol on Blinding Laser Weapons to all armed conflicts and in 

peacetime.243

 237 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

238 Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 

Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects – Overview, 3, MESSAGE FROM 

THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE 

REMNANTS OF WAR 9 (“By its terms, this paragraph means that the amended scope provision automatically applies 

to CCW Protocols I, II, III, and IV.”).

239 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

240 CCW AMENDED art. 1 (“The provisions of paragraphs 2 to 6 of this Article shall not prejudice additional 

Protocols adopted after January 1, 2002, which may apply, exclude or modify the scope of their application in 

relation to this Article.”).

241 2562 UNTS 39 (RATIFICATION United States of America Deposit of instrument with the Secretary-General of 

the United Nations: 21 January 2009).

242 United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482, 

482-83 (“The United States declares, with reference to the scope of application defined in Article 1 of the 

Convention, that the United States will apply the provisions of the Convention, Protocol I, and Protocol II to all 

armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War 

Victims of August 12, 1949.”).

243 Article-by-Article Analysis of CCW Protocol IV on Blinding Laser Weapons, 3-4, Enclosure C to Warren 

Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED 

MINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 43-
1184

19.21.1.2 U.S. Reservation to Article 7(4)(b) of the CCW. The United States took 

a reservation to Article 7(4)(b) of the CCW.244 

Article 7(4) of the CCW provides:

This Convention, and the annexed Protocols by which a High Contracting Party is 

bound, shall apply with respect to an armed conflict against that High Contracting 

Party of the type referred to in Article 1, paragraph 4, of Additional Protocol I to 

the Geneva Conventions of 12 August 1949 for the Protection of War Victims: 

... 

(b) where the High Contracting Party is not a party to Additional Protocol I and 

an authority of the type referred to in subparagraph (a) above accepts and applies 

the obligations of the Geneva Conventions and of this Convention and the 

relevant annexed Protocols in relation to that conflict. Such an acceptance and 

application shall have in relation to that conflict the following effects:

(i) the Geneva Conventions and this Convention and its relevant annexed 

Protocols are brought into force for the parties to the conflict with immediate 

effect;

(ii) the said authority assumes the same rights and obligations as those 

which have been assumed by a High Contracting Party to the Geneva 

Conventions, this Convention and its relevant annexed Protocols; and

(iii) the Geneva Conventions, this Convention and its relevant annexed 

Protocols are equally binding upon all parties to the conflict. 

The High Contracting Party and the authority may also agree to accept and apply 

the obligations of Additional Protocol I to the Geneva Conventions on a 

reciprocal basis.

The U.S. reservation to Article 7(4)(b) of the CCW is consistent with the longstanding objections 

of the United States to Article 1(4) of AP I regarding national liberation movements.245

19.21.1.3 CCW and Customary International Law. The restrictions and 

prohibitions in the CCW and its Protocols on weapons generally have not been based on the 

premise that such restrictions or prohibitions are warranted because the weapons at issue are

 44 (“The United States favored an expanded scope of application for the Blinding Laser Weapons Protocol. As a 

matter of policy, the United States will refrain from the use of laser weapons prohibited by the Protocol. Therefore, 

while the Blinding Laser Weapons Protocol does not legally apply to all armed conflicts, it is U.S. policy to apply 

the Protocol to all such conflicts, however, they may be characterized, and in peacetime.”).

244 United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482 

(“(1) Reservation. Article 7 (4) (b) of the Convention shall not apply with respect to the United States.”).

245 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).
1185

calculated to cause superfluous injury or are inherently indiscriminate.246 Rather, the CCW and 

Protocols have been drafted on the basis that they are largely new contractual rules, and not a 

restatement of existing customary international law.

247

19.21.2 CCW Protocol I. CCW Protocol I prohibits the use of weapons whose primary 

effect is to injure by fragments not detectable by X-rays.

248

CCW Protocol I was adopted by the first CCW Conference in 1980. The United States 

accepted CCW Protocol I on March 24, 1995, when it deposited its instrument of ratification to

the CCW.

249

19.21.3 CCW Amended Mines Protocol. The CCW Amended Mines Protocol addresses 

landmines, booby-traps, and other devices.250

CCW Protocol II on Mines, Booby-traps and Other Devices was adopted by the first 

CCW Conference in 1980. The United States accepted CCW Protocol II on March 24, 1995, 

when it deposited its instrument of ratification to the CCW.

251

CCW Protocol II was later substantially amended by the first Review Conference of 

CCW States Parties, which concluded its work on May 3, 1996. The CCW Amended Mines 

Protocol includes more detailed restrictions on the use of mines, booby-traps, and other devices, 

and prohibitions on specific types of such devices. The CCW Amended Mines Protocol also 

applies to non-international armed conflicts.252 The CCW Amended Mines Protocol has 

provisions that are to be observed at all times, e.g., provisions that are to be implemented in 

 246 George Aldrich, Ambassador, Chairman of the Delegation, Report of the United States Delegation to the United 

Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be 

Deemed to be Excessively Injurious or to have Indiscriminate Effects, Second Session, Geneva, Switzerland, 

September 15-October 10, 1980, 16 (Jan. 15, 1981) (“Finally, it is significant to note that the Conference ended with 

no finding that these restrictions and prohibitions were imposed because of any agreed belief or finding that they 

were in fact excessively injurious or had indiscriminate effects. Thus the adoption of this Convention in no way 

affects the legality, under the customary and conventional law of war, of past uses of these weapons in the modes to 

be restricted or prohibited. The restrictions and prohibitions contained in the Convention were recognized by the 

Conference as being primarily new contractual rules which would only bind parties in the future.”).

247 United States, Statement on Signature of the CCW, Apr. 8, 1982, 1342 UNTS 255 (“As indicated in the 

negotiating record of the 1980 Conference, the prohibitions and restrictions contained in the Convention and its 

Protocols are of course new contractual rules (with the exception of certain provisions which restate existing 

international law) which will only bind States upon their ratification of, or accession to, the Convention and their 

consent to be bound by the Protocols in question.”).

248 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

249 1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24 

September 1995. Accepting Protocols I and II.)”).

250 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

251 1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24 

September 1995. Accepting Protocols I and II.)”).

252 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
1186

peace-time.253

Before the United States accepted the CCW Amended Mines Protocol, U.S. policy was to 

observe the requirements of the CCW Amended Mines Protocol to the fullest extent possible.254

The CCW Amended Mines Protocol entered into force on December 3, 1998.

255 The 

United States provided notification of its consent to be bound by the CCW Amended Mines 

Protocol with declarations and a reservation on May 24, 1999.256

19.21.4 CCW Protocol III on Incendiary Weapons. CCW Protocol III on Incendiary 

Weapons places certain restrictions on the use of incendiary weapons.257

CCW Protocol III on Incendiary Weapons was adopted by the first CCW Conference in 

1980. The United States provided notification of its consent to be bound by CCW Protocol III 

on Incendiary Weapons on January 21, 2009, with a reservation and an understanding.

258

 253 Article-by-Article Analysis of CCW Amended Mines Protocol, 3-4, Enclosure A to Warren Christopher, Letter of 

Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,

PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 3-4 (“Finally, it was 

understood that certain provisions of the amended Protocol must be observed at all times. A statement to this effect 

was made part of the negotiating record by the delegation of Belgium, speaking on behalf of 24 other delegations, 

including the U.S. delegation, at the final plenary session of the Review Conference and was not contested by any

other delegation. This conclusion is supported, as well, by the scope of the Convention itself which makes clear that 

it and its annexed Protocols shall apply in situations referred to in Article 2 common to the Geneva Conventions of 

12 August 1949. Common Article 2 refers specifically to provisions which shall be implemented in peace-time, a 

recognition that certain provisions must be observed at all times if they are to be implemented in good faith. Among 

the provisions of the amended Protocol that must be so observed are: the provisions regarding the recording, 

marking, monitoring and protection of areas containing mines; provisions of Article 8 regarding transfers; and 

provisions of Articles 13 and 14 regarding consultations and compliance. A statement to this effect was made part 

of the negotiating record by the U.S. Delegation, and was not contested by any other delegation.”).

254 Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain 

Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 

Summary Record of the 14th Meeting (Second Part), Second resumed session, Geneva, Apr. 22 – May 3, 1996, 

CCW/CONF.I/SR.14/Add.1, May 9, 1996, ¶¶6-8 (“Mr. MATHESON (United States of America) said that the 

revised Protocol II on land-mines was a significant advance that would, if widely observed, result in a substantial 

decrease in civilian casualties and be an important first step towards the elimination of such mines. ... While such a 

commitment did not legally bind the United States or prejudice the Senate’s consideration of the amended Protocol, 

it was his country’s policy, pending the entry into force of the Protocol, to observe all of its restrictions to the fullest 

extent possible from the time of adoption.”).

255 2048 UNTS 93 (“Entry into force: 3 December 1998, in accordance with article 2 of the Protocol”).

256 2065 UNTS 128 (“CONSENT TO BE BOUND (WITH DECLARATIONS AND RESERVATION) United States of America

Notification effected with the Secretary-General of the United Nations: 24 May 1999”).

257 Refer to § 6.14 (Incendiary Weapons).

258 United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009, 

2562 UNTS 36, 37 (“It is the understanding of the United States of America that any decision by any military 

commander, military personnel, or any other person responsible for planning, authorizing or executing military 

action shall only be judged on the basis of that person’s assessment of the information reasonably available to the 

person at the time the person planned, authorized, or executed the action under review, and shall not be judged on 

the basis of information that comes to light after the action under review was taken.”). Refer to § 6.14.3.2 (U.S. 

Reservation to CCW Protocol III on Incendiary Weapons).
1187

19.21.5 CCW Protocol IV on Blinding Laser Weapons. CCW Protocol IV on Blinding 

Laser Weapons prohibits the use of blinding laser weapons and requires that feasible precautions 

be taken in the employment of laser systems to avoid causing permanent blindness.259 

States Parties to the CCW adopted CCW Protocol IV on Blinding Laser Weapons at the 

first Review Conference of CCW States Parties, which concluded its work on May 3, 1996.

260 

This Protocol was consistent with DoD policy on blinding lasers before the Protocol was 

adopted.

261

The United States provided notification of its consent to be bound by CCW Protocol IV 

on Blinding Laser Weapons on January 21, 2009, with an understanding.262

U.S. legal reviews before CCW Protocol IV was adopted concluded that the use of a laser 

for the purpose of blinding an enemy combatant would not constitute unnecessary suffering 

under the law of war.

263 Similarly, the restrictions in CCW Protocol IV on Blinding Laser 

Weapons may be characterized as arms control obligations in that these restrictions do not 

establish that the use of lasers as anti-personnel weapons, including for the purpose of blinding,

is prohibited by the rule against weapons calculated to cause unnecessary suffering nor otherwise 

prohibited by the customary law of war.

264

 259 Refer to § 6.15 (Laser Weapons).

260 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional 

Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled 

Protocol on Blinding Laser Weapons), Oct. 13, 1995, 2024 UNTS 163.

261 William J. Perry, Secretary of Defense, DOD Policy on Blinding Lasers, Jan. 17, 1997 (amending policy 

statement of Aug. 29, 1995) (“The Department of Defense prohibits the use of lasers specifically designed to cause 

permanent blindness and supports negotiations to prohibit the use of such weapons. However, laser systems are 

absolutely vital to our modern military. Among other things, they are currently used for detection, targeting, rangefinding, communications and target destruction. They provide a critical technological edge to U.S. forces and allow 

our forces to fight, win and survive on an increasingly lethal battlefield. In addition, lasers provide significant 

humanitarian benefits. They allow weapon systems to be increasingly discriminate, thereby reducing collateral 

damage to civilian lives and property. The Department of Defense recognizes that accidental or incidental eye 

injuries may occur on the battlefield as the result of the use of lasers not specifically designed to cause permanent 

blindness. Therefore, we continue to strive, through training and doctrine, to minimize these injuries.”).

262 United States, Statement on Consent to Be Bound to CCW Protocol IV on Blinding Laser Weapons, Jan. 21, 

2009, 2562 UNTS 38 (“It is the understanding of the United States of America with respect to Article 2 that any 

decision by any military commander, military personnel, or any other person responsible for planning, authorizing 

or executing military action shall only be judged on the basis of that person’s assessment of the information 

reasonably available to the person at the time the person planned, authorized or executed the action under review, 

and shall not be judged on the basis of information that comes to light after the action under review was taken.”).

263 Major General Hugh R. Overholt, The Judge Advocate General, Army, Memorandum of Law: Use of Lasers as 

Antipersonnel Weapons, ¶7, Sept. 29, 1988, reprinted in THE ARMY LAWYER 3, 4 (Nov. 1988) (“The fundamental 

issue with which this review is concerned is whether the use of a laser for the purpose of blinding an enemy soldier 

would constitute unnecessary suffering. The conclusion is that it would not.”).

264 W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, 

Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in

THE ARMY LAWYER 33, 36 (Jun. 1997) (“As the delegate from Sweden observed in the fourth and final meeting of 

the Laser Working Group on 6 October 1995, Protocol IV is a unique step in combining law of war and arms control 

mechanisms. The first sentence of Article 1 follows arms control lines by creating a national obligation to forego 
1188

19.21.6 CCW Protocol V on Explosive Remnants of War. CCW Protocol V on 

Explosive Remnants of War addresses explosive ordnance and explosive remnants of war.265 

CCW Protocol V on Explosive Remnants of War contains no restrictions or prohibitions on the 

use of these weapons; rather, it addresses what must be done with respect to unexploded 

munitions that threaten civilians and post-conflict reconstruction.266 CCW Protocol V on 

Explosive Remnants of War addresses primarily the steps to be taken before or after hostilities, 

not during them, and it includes a Technical Annex of suggested best practices for greater 

munitions reliability.267

CCW Protocol V on Explosive Remnants of War was adopted on November 28, 2003.268

The United States provided notification of its consent to be bound by CCW Protocol V 

on Explosive Remnants of War on January 21, 2009.269 The United States expressed its 

understanding relating to future arrangements in connection with the settlement of armed 

conflicts.270

19.22 CHEMICAL WEAPONS CONVENTION

The Chemical Weapons Convention creates extensive obligations for States with respect 

to the use and possession of chemical weapons.271

Article 22 of the Chemical Weapons Convention prohibits reservations to the Convention 

 

the use on the battlefield of a laser weapon of the type described in the balance of the sentence, rather than 

establishing that an antipersonnel laser weapon is inconsistent with the law of war prohibition on unnecessary 

suffering. ... Neither the prohibition in Article 1 nor anything else in Protocol IV establishes, nor was it intended to 

establish, that an individual, intentional act of blinding by a laser constitutes unnecessary suffering or is otherwise a 

violation of the law of war, for several reasons.”).

265 Refer to § 6.19 (Explosive Ordnance); § 6.20 (Explosive Remnants of War).

266 Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM 

THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE 

REMNANTS OF WAR 11-12 (“Protocol V is the first international agreement specifically aimed at reducing the 

humanitarian threat posed by unexploded and abandoned munitions of all types remaining on the battlefield after the 

end of armed conflicts. Protocol V contains no restrictions or prohibitions on the use of these weapons; rather, it 

addresses what must be done with respect to unexploded munitions that threaten civilians and post-conflict 

reconstruction.”).

267 Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM 

THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE 

REMNANTS OF WAR 11-12 (“The Protocol deals primarily with steps to be taken before or after hostilities, not during 

them. Protocol V also includes a Technical Annex of suggested best practices that states Parties to the Protocol are 

encouraged to follow on a voluntary basis in order to achieve greater munitions reliability.”).

268 Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain 

Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects 

(Protocol V), Nov. 28, 2003, 2399 UNTS 100-177.

269 2562 UNTS 39, 40 (“Receipt of notification by the Secretary-General of the United Nations: 21 January 2009”).

270 Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by 

the Cessation of Active Hostilities).

271 Refer to § 6.8.3 (Chemical Weapons).
1189

and prohibits reservations to the Convention’s Annexes incompatible with its object and 

purpose.272

During the negotiation of the Chemical Weapons Convention, President George H.W. 

Bush on May 13, 1991, announced that the United States was formally forswearing the use of 

chemical weapons for any reason, including retaliation, against any State, effective when the 

Convention entered into force.273

The United States signed the Chemical Weapons Convention on January 13, 1993, and 

President Clinton submitted it to the Senate for its advice and consent to ratification on 

November 23, 1993.274 In transmitting the Chemical Weapons Convention to the Senate for its 

advice and consent to ratification, President Clinton notified the Senate that the administration 

was reviewing the effect of the Convention’s prohibition on the use of riot control agents as a 

method of warfare on Executive Order No. 11850, which specified the current policy of the 

United States with regard to the use of riot control agents in war, and would submit the results of 

that review separately to the Senate.275 The review concluded that under then-current

interpretations of the Chemical Weapons Convention, certain uses of riot control agents 

authorized under Executive Order 11850 would no longer be permissible and that a new 

Executive Order on riot control agents would be issued.

276 The Senate, as a condition of its 

advice and consent to ratification, required that the President certify to Congress that the United 

States is not restricted by the Chemical Weapons Convention in its use of riot control agents in 

certain cases and that Executive Order 11850 would not be modified.

277 President Clinton 

 272 CHEMICAL WEAPONS CONVENTION art. 22 (“The Articles of this Convention shall not be subject to reservations. 

The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose.”).

273 George H. W. Bush, Statement on Chemical Weapons, May 13, 1991, 1991-I PUBLIC PAPERS OF THE PRESIDENTS 

503 (“To demonstrate the United States commitment to banning chemical weapons, we are formally forswearing the 

use of chemical weapons for any reason, including retaliation, against any state, effective when the convention 

enters into force, and will propose that all states follow suit.”).

274 William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 

CHEMICAL WEAPONS CONVENTION III (“The Convention was opened for signature and was signed by the United 

States at Paris on January 13, 1993.”).

275 William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 

CHEMICAL WEAPONS CONVENTION V (“The Administration is reviewing the impact of the Convention’s prohibition 

on the use of riot control agents as a method of warfare on Executive Order No. 11850, which specifies the current 

policy of the United States with regard to the use of riot control agents in war. The results of the review will be 

submitted separately to the Senate.”).

276 William J. Clinton, Message to the Senate on the Impact of the Chemical Weapons Convention on the Use of Riot 

Control Agents, Jun. 23, 1994, 1994-I PUBLIC PAPERS OF THE PRESIDENTS 1127, 1128 (“—The CWC does prohibit 

the use of RCAs solely against combatants. In addition, according to the current international understanding, the 

CWC's prohibition on the use of RCAs as a ‘method of warfare’ also precludes the use of RCAs even for 

humanitarian purposes in situations where combatants and noncombatants are intermingled, such as the rescue of 

downed air crews, passengers, and escaping prisoners and situations where civilians are being used to mask or 

screen attacks. However, were the international understanding of this issue to change, the United States would not 

consider itself bound by this position. Upon receiving the advice and consent of the Senate to ratification of the 

Chemical Weapons Convention, a new Executive order outlining U.S. policy on the use of RCAs under the 

Convention will be issued.”).

277 Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105thCongress, 

143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“(26) Riot control agents: (A) Permitted uses. — Prior to the 
1190

provided this certification on April 25, 1997.278 

The United States ratified the Chemical Weapons Convention on April 25, 1997, with 

one condition that relates to the Annex on Implementation and Verification.

279 The treaty 

requires that sixty-five nations become Party to it before it enters into force, which occurred on 

April 29, 1997.280

In implementation of the Chemical Weapons Convention, Congress enacted laws 

prohibiting, inter alia, development, production, acquisition, transfer directly or indirectly, 

receipt, stockpiling, retention, possession, use, or threat of use of any chemical weapon.281

 

deposit of the United States instrument of ratification, the President shall certify to Congress that the United States is 

not restricted by the Convention in its use of riot control agents, including the use against combatants who are 

parties to a conflict, in any of the following cases: (i) UNITED STATES NOT A PARTY. — The conduct of peacetime 

military operations within an area of ongoing armed conflict when the United States is not a party to the conflict 

(such as recent use of the United States Armed Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUAL 

PEACEKEEPING. — Consensual peacekeeping operations when the use of force is authorized by the receiving state, 

including operations pursuant to Chapter VI of the United Nations Charter. (iii) CHAPTER VII PEACEKEEPING. —

Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the United Nations 

Charter. (B) Implementation. — The President shall take no measure, and prescribe no rule or regulation, which 

would alter or eliminate Executive Order 11850 of April 8, 1975. (C) Definition. — In this paragraph, the term ‘riot 

control agent’ has the meaning given the term in Article II(7) of the Convention.”).

278 William J. Clinton, Message to the Congress on the Chemical Weapons Convention, Apr. 25, 1997, 1997-I

PUBLIC PAPERS OF THE PRESIDENTS 495, 495-97 (“In accordance with the resolution of advice and consent to 

ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical 

Weapons and on Their Destruction, adopted by the Senate of the United States on April 24, 1997, I hereby certify 

that: ... In connection with Condition (26), Riot Control Agents, the United States is not restricted by the Convention 

in its use of riot control agents, including the use against combatants who are parties to a conflict, in any of 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 (such as recent use of the United States Armed Forces in Somalia, Bosnia, 

and Rwanda); (ii) consensual peacekeeping operations when the use of force is authorized by the receiving state, 

including operations pursuant to Chapter VI of the United Nations Charter; and (iii) peacekeeping operations when 

force is authorized by the Security Council under Chapter VII of the United Nations Charter. ... In accordance with 

Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by the Convention in 

its use of riot control agents in various peacetime and peacekeeping operations. These are situations in which the 

United States is not engaged in a use of force of a scope, duration and intensity that would trigger the laws of war 

with respect to U.S. forces.”).

279 United States, Declaration Made on Ratification of the Chemical Weapons Convention, Apr. 29, 1997, 1975 

UNTS 475 (“Subject to the condition which relates to the Annex on Implementation and Verification, that no 

sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory 

outside the territory of the United States.”).

280 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and 

on Their Destruction, Jan. 13, 1993, 1974 UNTS 317 footnote 1 (“Came into force on 29 April 1997, in accordance 

with article XXI:”). See also CHEMICAL WEAPONS CONVENTION art. 21 (“This Convention shall enter into force 

180 days after the date of the deposit of the 65th instrument of ratification, but in no case earlier than two years after 

its opening for signature.”).

281 18 U.S.C.S. § 229 (“(a) Unlawful conduct. Except as provided in subsection (b), it shall be unlawful for any 

person knowingly— (1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, 

retain, own, possess, or use, or threaten to use, any chemical weapon; or (2) to assist or induce, in any way, any 

person to violate paragraph (1), or to attempt or conspire to violate paragraph (1). (b) Exempted agencies and 

persons. (1) In general. Subsection (a) does not apply to the retention, ownership, possession, transfer, or receipt of 
1191

19.23 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

The Rome Statute of the International Criminal Court (“Rome Statute”) establishes the 

International Criminal Court (“ICC”) at The Hague, Netherlands.282 Under the Rome Statute, 

the ICC may investigate and prosecute certain international crimes (e.g., genocide, war crimes) 

in certain situations.

283

The United States signed the Rome Statute on December 31, 2000, but President Clinton 

did not submit the treaty to the Senate for its advice and consent to ratification. Because of 

“significant flaws,” President Clinton recommended that his successor not submit the Rome 

Statute to the Senate until the United States’ fundamental concerns with the treaty were 

addressed.284 In particular, the United States has expressed concern that the ICC would claim 

jurisdiction over personnel of States that have not ratified the Rome Statute.285 In addition, for 

example, concerns have been raised that the ICC would not provide U.S. persons accused of war 

crimes with the procedural protections that they are afforded under U.S. domestic law.286

On May 6, 2002, the United States filed a letter with the U.N. Secretary General, the 

depositary for the Rome Statute, indicating that it “does not intend to become a party to the 

treaty,” and that “[a]ccordingly, the United States has no legal obligations arising from its 

signature on December 31, 2000.”287 The United States participated as an observer in the Rome 

Statute’s first Review conference in Kampala, Uganda, May 30-June 11, 2010, and has 

supported ICC efforts in certain cases.288 The Department of State Legal Adviser has noted that 

U.S. policy is explicitly not to frustrate the object and purpose of the Rome Statute.289

 

a chemical weapon by a department, agency, or other entity of the United States, or by a person described in 

paragraph (2), pending destruction of the weapon. (2) Exempted persons. A person referred to in paragraph (1) is—

(A) any person, including a member of the Armed Forces of the United States, who is authorized by law or by an 

appropriate officer of the United States to retain, own, possess, transfer, or receive the chemical weapon; or (B) in an 

emergency situation, any otherwise nonculpable person if the person is attempting to destroy or seize the weapon.”).

282 Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 90.

283 Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).

284 William J. Clinton, Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III

PUBLIC PAPERS OF THE PRESIDENTS 2816.

285 Refer to § 18.20.3.1 (Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party States).

286 See, e.g., 22 U.S.C. § 7421 (“Congress makes the following findings: ... (7) Any American prosecuted by the 

International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans 

are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury.”).

287 John Bolton, Letter to Kofi Anan, U.N. Treaty Collection Depository Notification, C.N.434.2002, May 6, 2002.

288 Refer to § 18.20.3.3 (U.S. Law and Policy on Support to the ICC).

289 Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera 

Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATES 

PRACTICE IN INTERNATIONAL LAW 61, 68 (“Putting all of this together, as I made clear more than two years ago in a 

speech at New York University, ‘What you quite explicitly do not see from this Administration is U.S. hostility 

towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object 

and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the 
1192

19.24 1999 U.N. SECRETARY GENERAL’S BULLETIN FOR U.N. FORCES

The U.N. Secretary General has promulgated a bulletin for the purpose of setting out 

fundamental principles and rules of international humanitarian law applicable to United Nations 

forces conducting operations under United Nations command.

290 The bulletin is not a legally 

binding instrument, although, in many cases, the rules reflected in the bulletin reflect law of war 

rules that are binding upon the United States as a matter of treaty or customary international law. 

The bulletin has been the subject of criticism by States.

291

19.25 2005 ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW

There is no list of treaty provisions (or other codification) that the United States has 

agreed reflects the entirety of the customary international law of war.292

In 2005, the International Committee of the Red Cross published a study on customary 

international humanitarian law (ICRC CIHL Study), which has been criticized for its 

methodology and formulation of certain specific rules.

293 The United States likewise has 

expressed serious concerns about the methodology used in the ICRC CIHL Study and has stated 

that it is not in a position to accept without further analysis the Study’s conclusions that certain 

rules related to the law of war in fact reflect customary international law.294

 

United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in 

seeing the Court successfully complete the important prosecutions it has already begun.’”).

290 U.N. SECRETARIAT, Secretary-General’s Bulletin: Observance by United Nations Forces of International 

Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999) (“The Secretary-General, for the purpose of setting 

out fundamental principles and rules of international humanitarian law applicable to United Nations forces 

conducting operations under United Nations command and control, promulgates the following:”).

291 Report of the Special Committee on Peacekeeping Operations, Comprehensive review of the whole question of 

peacekeeping operations in all their aspects, U.N. Doc. A/54/839 ¶82 (Mar. 20, 2000) (“The Special Committee 

notes the Secretary-General’s comments on the guidelines on compliance with international humanitarian law by 

United Nations peacekeepers. The Committee expresses concern about the lack of consultation with Member States 

by the Secretariat before finalizing Secretary-General’s Bulletin ST/SGB/1999/13. It requests further clarification 

on the Bulletin’s legal status, and stresses that it must accurately reflect the terms of international humanitarian law. 

It requests the Secretary-General to carry out consultations on the Bulletin with the Special Committee.”).

292 Refer to § 1.8 (Customary International Law).

293 See, e.g., Daniel Bethlehem, The Methodological framework of the Study, ELIZABETH WILMSHURST & SUSAN 

BREAU, PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 4 (2007) 

(“Without detracting from this genuine appreciation, it is necessary and appropriate to draw attention to some 

important misgivings about the Study, as regards both methodology and the formulation of certain specific Rules.”).

294 U.S. RESPONSE TO ICRC CIHL STUDY 514 (“Given the Study’s large scope, we have not yet been able to 

complete a detailed review of its conclusions. We recognize that a significant number of the rules set forth in the 

Study are applicable in international armed conflict because they have achieved universal status, either as a matter of 

treaty law or – as with many provisions derived from the Hague Regulations of 1907 – customary law. Nonetheless, 

it is important to make clear – both to you and to the greater international community – that, based upon our review 

thus far, we are concerned about the methodology used to ascertain rules and about whether the authors have 

proffered sufficient facts and evidence to support those rules. Accordingly, the United States is not in a position to 

accept without further analysis the Study’s conclusions that particular rules related to the laws and customs of war in 

fact reflect customary international law.”).
1193

19.26 AP III

A third additional protocol to the 1949 Geneva Conventions was adopted on December 8, 

2005.

295 AP III recognizes a red crystal as an additional distinctive emblem for the same 

purposes as the distinctive emblems of the Geneva Conventions.296

The United States deposited its instrument of ratification to AP III on March 8, 2007, 

without making any statements of reservation, declaration, or understanding.297

 295 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional 

Distinctive Emblem (Protocol III), Dec. 8, 2005, 2404 UNTS 1.

296 Refer to § 7.15.1.3 (Red Crystal).

297 2444 UNTS 287 (“RATIFICATION United States of America Deposit of instrument with the Government of 

Switzerland: 8 March 2007”).