DEPARTMENT OF DEFENSE LAW OF WAR MANUAL JUNE 2015 OFFICE OF GENERAL COUNSEL DEPARTMENT OF DEFENSE GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE 1600 DEFENSE PENTAGON WASHINGTON DC 20301-1600 GENERAL COUNSEL June 12 2015 The Department of Defense Law of War Manual is hereby promulgated pursuant to Department of Defense Directive 231 1 0113 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 2013 and 10 U S C 140 b 2012 Stephen W Preston 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 ii 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 102 Law of Naval Warfare in 1955 4 and the Department of the Army published Field Manual 2710 The Law of Land Warfare in 1956 which was updated in 1976 5 The Department of the Army also published pamphlets on international law applicable in peace and war in the 1960s and in 1979 an updated version of the pamphlet on the law of peace 6 The Department of the Air Force published in 1976 Air Force Pamphlet 110-31 International Law – The Conduct 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 iii Guard have published several editions of The Commander’s Handbook on the Law of Naval Operations starting in 1987 and most recently in 2007 9 Helpful annotated supplements 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 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 ” iv manuals of Germany Australia and Canada were also helpful resources in the preparation of this 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 Australian Royal 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 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 ” v Judge Advocates General of the Army Navy and Air Force the Staff Judge Advocate to the 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 Department of Defense Directive 2310 01E DoD Law of War Program ¶5 1 4 May 9 2006 Certified Current as of Feb 22 2011 providing for a “DoD Law of War Working Group consisting of representatives at the election by each of the GC DoD the General Counsel of each Military Department the Counsel to the Commandant of the Marine Corps the Judge Advocate General of each Military Department the Staff Judge Advocate to the Commandant of the Marine Corps and the Legal Counsel to the Chairman of the Joint Chiefs of Staff The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues support the research preparation review and updating of the DoD Law of War Manual manage other law of war matters as they arise and provide advice to the General Counsel on legal matters covered by this Directive ” vi TABLE OF CONTENTS Foreword ii Preface iii Table of Contents vii List of Abbreviations xvii 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 15 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 66 III – Application of the Law of War 70 3 1 Introduction 70 3 2 Situations to Which the Law of War Applies 73 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 98 4 1 Introduction 98 vii 4 2 The Armed Forces and the Civilian Population 100 4 3 Lawful Combatants and Unprivileged Belligerents 103 4 4 Rights Duties and Liabilities of Combatants 106 4 5 Armed Forces of a State 112 4 6 Other Militia and Volunteer Corps 118 4 7 Levée en Masse 125 4 8 Rights Duties and Liabilities of Civilians 127 4 9 Military Medical and Religious Personnel 129 4 10 Rights Duties and Liabilities of Military Medical and Religious Personnel 133 4 11 Authorized Staff of Voluntary Aid Societies 134 4 12 Staff of a Recognized Aid Society of a Neutral Country 135 4 13 Auxiliary Medical Personnel 136 4 14 Personnel Engaged in Duties Related to the Protection of Cultural Property 138 4 15 Persons Authorized to Accompany the Armed Forces 142 4 16 Crews of Merchant Marine Vessels or Civil Aircraft 148 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 150 4 18 Private Persons Who Engage in Hostilities 157 4 19 Rights Duties and Liabilities of Unprivileged Belligerents 162 4 20 Children 166 4 21 Mercenaries 170 4 22 AP I Provisions on Civil Defense Personnel 172 4 23 Law Enforcement Officers 172 4 24 Journalists 173 4 25 Delegates or Representatives of the Protecting Powers 175 4 26 ICRC and Other Impartial Humanitarian Organizations 176 4 27 Determining the Status of Detainees in Cases of Doubt 179 V – The Conduct of Hostilities 183 5 1 Introduction 183 5 2 Principles for the Conduct of Hostilities 185 5 3 Overview of Rules for the Protection of Civilians 185 5 4 Assessing Information Under the Law of War 192 5 5 Rules on Conducting Assaults Bombardments and Other Attacks 194 5 6 Discrimination in Conducting Attacks 203 5 7 Military Objectives 205 5 8 Combatants 216 5 9 Civilians Taking a Direct Part in Hostilities 222 5 10 Persons Placed Hors de Combat 232 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 237 5 12 Proportionality in Conducting Attacks 241 5 13 Attacks on Facilities Works or Installations Containing Dangerous Forces 247 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 248 viii 5 15 Undefended Cities Towns and Villages 253 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 258 5 17 Seizure and Destruction of Enemy Property 261 5 18 Protection of Cultural Property During Hostilities 269 5 19 Sieges and Encircled Areas 288 5 20 Starvation 291 5 21 Overview of Good Faith Perfidy and Ruses 294 5 22 Treachery or Perfidy Used to Kill or Wound 296 5 23 Use of Enemy Flags Insignia and Military Uniforms 298 5 24 Improper Use of Certain Signs 300 5 25 Ruses of War and Other Lawful Deceptions 302 5 26 Non-Forcible Means and Methods of Warfare 307 5 27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country 310 VI – Weapons 312 6 1 Introduction 312 6 2 DoD Policy of Reviewing the Legality of Weapons 313 6 3 Other Practices to Help Implement Law of War Obligations With Respect to Weapons 316 6 4 Prohibited Weapons 317 6 5 Lawful Weapons 318 6 6 Weapons Calculated to Cause Superfluous Injury 334 6 7 Inherently Indiscriminate Weapons 340 6 8 Poison Poisoned Weapons Poisonous Gases and Other Chemical Weapons 343 6 9 Biological Weapons 350 6 10 Certain Environmental Modification Techniques 352 6 11 Weapons Injuring by Fragments Not Detectable by X-Rays 355 6 12 Landmines Booby-Traps and Other Devices 356 6 13 Cluster Munitions 380 6 14 Incendiary Weapons 382 6 15 Laser Weapons 387 6 16 Riot Control Agents 389 6 17 Herbicides 392 6 18 Nuclear Weapons 393 6 19 Explosive Ordnance 395 6 20 Explosive Remnants of War 400 VII –Wounded Sick Shipwrecked Dead and the Medical Services 410 7 1 Introduction 410 7 2 Application of the Protections of the GWS and GWS-Sea 413 7 3 Respect and Protection of the Wounded Sick and Shipwrecked 415 ix 7 4 Search Collection and Affirmative Protection of the Wounded Sick Shipwrecked and Dead 420 7 5 Humane Treatment and Care of Enemy Military Wounded Sick and Shipwrecked in the Power of a Party to the Conflict 424 7 6 Accountability Information From the Enemy Military Wounded Sick Shipwrecked and Dead 428 7 7 Treatment and Handling of Enemy Military Dead 430 7 8 Respect and Protection of Categories of Medical and Religious Personnel 435 7 9 Captured Medical and Religious Personnel 438 7 10 Military Medical Units and Facilities 444 7 11 Ground Transports of the Wounded and Sick or of Medical Equipment 451 7 12 Hospital Ships Sick-Bays in Warships and Coastal Rescue Craft 453 7 13 Chartered Medical Transport Ships 465 7 14 Military Medical Aircraft 466 7 15 Display of the Distinctive Emblem to Facilitate Identification 470 7 16 Protection of Civilians Who Are Wounded Sick Infirm or Expectant Mothers 477 7 17 Civilian Hospitals and Their Personnel 478 7 18 Land and Sea Civilian Hospital Convoys 481 7 19 Civilian Medical Aircraft 482 7 20 AP I Provisions on the Wounded Sick and Shipwrecked 483 VIII – Detention Overview and Baseline Rules 486 8 1 Introduction 486 8 2 Humane Treatment of Detainees 492 8 3 Security Measures 495 8 4 Interrogation 496 8 5 Adequate Food Drinking Water and Clothing 497 8 6 General Conditions of Detention Facilities 497 8 7 Segregation of Detainees 498 8 8 Medical Attention 499 8 9 Administration and Discipline in Detention Facilities 500 8 10 Contacts With the Outside World 500 8 11 Religious Exercise 501 8 12 Intellectual Physical and Recreational Activities 502 8 13 Adequate Working Conditions 503 8 14 Procedures for Detention 503 8 15 National Accountability for Detention 506 8 16 Criminal Procedure and Punishment 508 IX – Prisoners of War POWs 511 9 1 Introduction 512 9 2 General Principles Applicable to the Treatment of POWs 515 9 3 POW Status 517 x 9 4 National-Level GPW Implementation Measures 522 9 5 Humane Treatment and Basic Protections for POWs 524 9 6 Security Measures With Respect to POWs 529 9 7 POW Effects and Articles of Personal Use 530 9 8 Interrogation of POWs 532 9 9 Evacuation From Combat Areas 534 9 10 Transit or Screening Facilities 536 9 11 General Conditions in POW Camps Location Safety Hygiene and Living Conditions 538 9 12 Segregation of POWs 544 9 13 Food Water Tobacco and Clothing for POWs 545 9 14 Medical Attention for Interned POWs 548 9 15 Religious Exercise by POWs 550 9 16 Intellectual Physical and Recreational Activities 551 9 17 Canteens for POWs 553 9 18 Financial Resources of POWs 555 9 19 POW Labor 562 9 20 POW Correspondence and Relief Shipments 569 9 21 Private Legal Matters of POWs 577 9 22 Internal Discipline of POW Camps 578 9 23 POW Requests Complaints and Reports About Conditions of Captivity 582 9 24 POW Representatives 584 9 25 POW Escapes 591 9 26 General Principles Applicable to POW Discipline 595 9 27 Disciplinary Proceedings and Punishment 598 9 28 Judicial Proceedings and Punishment 603 9 29 Transfer of POWs From the POW Camp 610 9 30 Transfer of POWs to the Custody of Another Detaining Power 611 9 31 National Accounting of the Detention of POWs 613 9 32 Role of the Protecting Power in the GPW 618 9 33 Access to POWs by the Protecting Powers ICRC and Relief Organizations 621 9 34 Death of POWs 622 9 35 Exchanges and Other Release and Repatriation of POWs During Hostilities 626 9 36 Direct Repatriation and Accommodation in Neutral Countries During Hostilities 627 9 37 Release and Repatriation After Hostilities 632 9 38 Procedure on Release and Repatriation After Hostilities 638 9 39 Code of Conduct for U S Armed Forces 640 X – Civilians in the Hands of a Party to the Conflict 644 10 1 Introduction 645 10 2 National-Level GC Implementation Measures 647 10 3 Protected Person Status 648 10 4 Derogation for Security Reasons 654 10 5 Humane Treatment and Other Basic Protections for Protected Persons 655 xi 10 6 Measures of Control and Security 659 10 7 General Treatment of Protected Persons in a Belligerent’s Home Territory 662 10 8 Expulsion From Areas Within a Belligerent’s Home Territory and Departure and Transfers of Protected Persons From a Belligerent’s Home Territory 664 10 9 Internment 667 10 10 Segregation of Internees 671 10 11 Safety Hygiene and Living Conditions in Places of Internment 672 10 12 Canteens for Internees 675 10 13 Food Water Tobacco and Clothing for Internees 677 10 14 Medical Attention for Internees 678 10 15 Religious Exercise by Internees 680 10 16 Intellectual Physical and Recreational Activities 682 10 17 Internee Labor 683 10 18 Internees’ Articles of Personal Use 685 10 19 Financial Resources of Internees 686 10 20 Administration of Places of Internment and Discipline 689 10 21 Internee Petitions Complaints and Reports About Conditions of Internment 690 10 22 Internee Committees 692 10 23 Internee Correspondence and Relief Shipments 696 10 24 Private Legal Matters of Internees 703 10 25 Internees and Visits of Family and Friends 705 10 26 Internee Escapes 706 10 27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions Regarding Internees 707 10 28 Disciplinary Proceedings and Punishment 708 10 29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a Belligerent’s Home Territory 713 10 30 Transfers of Internees From the Place of Internment 717 10 31 National Accounting for Protected Persons in Its Power 720 10 32 Role of the Protecting Power in the GC 725 10 33 Access to Internees by Protecting Powers ICRC and Other Relief Organizations 727 10 34 Death of Internees 729 10 35 Release Return Repatriation of Internees After the Close of Hostilities 732 XI – Military Occupation 735 11 1 Introduction 735 11 2 When Military Occupation Law Applies 744 11 3 End of Occupation and Duration of GC Obligations 750 11 4 Legal Position of the Occupying Power 752 11 5 Duty of the Occupying Power to Ensure Public Order and Safety 754 11 6 Protection of the Population of an Occupied Territory 756 11 7 Authority of the Occupying Power Over Inhabitants 758 11 8 Administration of Occupied Territory 761 xii 11 9 Local Law and Legislation 763 11 10 Ordinary Courts in Occupied Territory 767 11 11 Criminal Law in Occupied Territory 769 11 12 Movement of Persons in Occupied Territory 777 11 13 Protection of Children in Occupied Territory 780 11 14 Food and Medical Supplies for the Civilian Population 781 11 15 Public Health and Hygiene 782 11 16 Spiritual Assistance 784 11 17 Relief Efforts and Consignments 785 11 18 Enemy Property During Occupation 788 11 19 Protection of Cultural Property During Occupation 798 11 20 Labor of Protected Persons in Occupied Territory 800 11 21 Judges and Other Public Officials 806 11 22 Public Finances and Taxes 807 11 23 Other Economic Regulation of Occupied Territory 817 XII – Non-Hostile Relations Between Belligerents 822 12 1 Introduction 822 12 2 Principle of Good Faith in Non-Hostile Relations 825 12 3 Methods for Communication Between Belligerents 826 12 4 The White Flag of Truce to Initiate Negotiations 827 12 5 Rules for Parlementaires 829 12 6 Military Passports Safe-Conducts and Safeguards 834 12 7 Cartels 839 12 8 Capitulations – Negotiated Instruments of Surrender 839 12 9 Capitulations – Subjects Usually Addressed 843 12 10 Capitulations – Violations and Denunciation 845 12 11 Armistices and Other Cease-Fire Agreements 847 12 12 Armistices – Subjects Usually Addressed 852 12 13 Armistices – Violations and Denunciation 856 12 14 U N Security Council Cease-Fires 858 XIII – Naval Warfare 860 13 1 Introduction 860 13 2 Legal Boundaries of the Oceans 862 13 3 Overview of Rules for Naval Engagements 870 13 4 Enemy Warships 873 13 5 Enemy Merchant Vessels 874 13 6 Enemy Vessels Exempt From Capture or Destruction 877 13 7 Submarine Warfare 879 13 8 Belligerent Control of the Immediate Area of Naval Operations 880 13 9 Maritime and Airspace Zones Exclusion War Operational Warning and Safety 882 13 10 Blockade 886 xiii 13 11 Naval Mines 892 13 12 Torpedoes 898 13 13 Deception by Naval Forces Including the Use of Enemy or Neutral Flags 898 XIV – Air and Space Warfare 900 14 1 Introduction 900 14 2 Legal Boundaries of Airspace 904 14 3 Aircraft Status 909 14 4 Status of Aircrew on Military Aircraft 912 14 5 Measures Short of Attack Interception Diversion and Capture 914 14 6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities 916 14 7 Airspace Zones 916 14 8 Attacks Against Military Objectives in the Air 917 14 9 Air Attacks Against Military Objectives on the Ground 920 14 10 International Law And Warfare in Outer Space 922 XV – The Law of Neutrality 929 15 1 Introduction 929 15 2 Application of the Law of Neutrality 933 15 3 Overview of the Neutrality Law’s Framework of Reciprocal Rights and Duties 939 15 4 Remedies for Violations of Neutrality Law 943 15 5 Prohibition on the Use of Neutral Territory as a Base of Operations 946 15 6 Neutral Persons 950 15 7 Neutral Waters 954 15 8 Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea Lanes 957 15 9 Additional Rules Applicable to Neutral Ports Roadsteads and Internal Waters 959 15 10 Neutral Airspace 964 15 11 Belligerent Right of Angary 965 15 12 Neutral Commerce and Carriage of Contraband 967 15 13 Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft 973 15 14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked Civil Aircraft 977 15 15 Capture of Neutral Vessels and Aircraft 979 15 16 Belligerent Forces Taking Refuge in Neutral Territory 984 15 17 POWs or Internees Brought to or Received by a Neutral State 989 15 18 Authorized Passage of Wounded and Sick Combatants Through Neutral Territory 991 XVI – Cyber Operations 994 xiv 16 1 Introduction 994 16 2 Application of the Law of War to Cyber Operations 996 16 3 Cyber Operations and Jus ad Bellum 998 16 4 Cyber Operations and the Law of Neutrality 1002 16 5 Cyber Operations and Jus in Bello 1003 16 6 Legal Review of Weapons That Employ Cyber Capabilities 1008 XVII – Non-International Armed Conflict NIAC 1010 17 1 Introduction 1010 17 2 Application of International Law to NIACs 1015 17 3 Special Agreements Between Parties to the Conflict 1023 17 4 A State’s Use of Its Domestic Law and NIAC 1025 17 5 Principle of Distinction in NIAC 1029 17 6 Respect and Humane Treatment of Persons Taking No Active Part in Hostilities in NIAC 1032 17 7 Rules on Conducting Attacks in NIAC 1033 17 8 Impartial Humanitarian Organizations and Humanitarian Activities During NIAC 1035 17 9 Protection of the Civilian Population in NIAC 1035 17 10 Protection of Children in NIAC 1037 17 11 Protection of Cultural Property in NIAC 1038 17 12 Use of Captured or Surrendered Enemy Personnel in NIAC 1039 17 13 Weapons in NIAC 1041 17 14 Protection of the Wounded Sick Shipwrecked and Dead in NIAC 1042 17 15 Protection of Medical and Religious Personnel and Medical Transports in NIAC 1044 17 16 Display of the Distinctive Emblem in NIAC 1045 17 17 Detention in NIAC 1046 17 18 Non-Intervention and Neutral Duties in NIAC 1047 XVIII – Implementation and Enforcement of the Law of War 1052 18 1 Introduction 1052 18 2 Prudential Reasons Supporting the Implementation and Enforcement of the Law of War 1055 18 3 Duties of Individual Members of the Armed Forces 1057 18 4 Commanders’ Duty to Implement and Enforce the Law of War 1059 18 5 Role of Judge Advocates and Legal Advisers 1061 18 6 Dissemination Study and Other Measures to Facilitate Understanding of Duties Under the Law of War 1063 18 7 Instructions Regulations and Procedures to Implement and Enforce the Law of War 1066 18 8 Considering Law of War Obligations in the Planning of Military Operations 1069 18 9 States’ Obligations With Respect to Violations of the Law of War 1070 18 10 Methods for Responding to Violations of the Law of War by the Enemy 1077 xv 18 11 Protests and Demands to the Offending Party 1078 18 12 U N Security Council and Enforcement of the Law of War 1078 18 13 National Investigations of Alleged Violations of the Law of War 1082 18 14 International Mechanisms to Investigate Alleged Law of War Violations 1084 18 15 Protecting Power and Other Neutral Intermediaries 1085 18 16 Compensation for Violations of the Law of War 1089 18 17 Retorsion 1092 18 18 Reprisals 1093 18 19 Discipline in National Jurisdictions of Individuals for Violations of the Law of War 1100 18 20 Prosecution in International and Hybrid Courts 1108 18 21 Limits on the Punishment of Individuals Under the Law of War 1113 18 22 Principles of Individual Criminal Responsibility for Crimes Under International Law 1118 18 23 Theories of Individual Criminal Liability 1122 XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents 1131 19 1 Introduction 1131 19 2 Lists of Treaties and Other Documents 1131 19 3 Lieber Code 1138 19 4 1856 Paris Declaration Respecting Maritime Law 1139 19 5 1864 GWS 1140 19 6 1868 St Petersburg Declaration 1140 19 7 1899 and 1907 Hague Declarations on Weapons 1141 19 8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations Regarding Land Warfare 1143 19 9 1907 Hague X 1146 19 10 1922 Washington Treaty on Submarines and Noxious Gases 1146 19 11 1923 Hague Air and Radio Rules 1147 19 12 1925 Geneva Gas and Bacteriological Protocol 1148 19 13 1929 Geneva Conventions 1150 19 14 1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London Protocol 1151 19 15 1935 Roerich Pact 1151 19 16 1949 Geneva Conventions 1152 19 17 1954 Hague Cultural Property Convention 1157 19 18 Vienna Convention on the Law of Treaties 1159 19 19 Biological Weapons Convention 1159 19 20 1977 Additional Protocols to the 1949 Geneva Conventions 1160 19 21 CCW CCW Amended Article 1 and CCW Protocols 1164 19 22 Chemical Weapons Convention 1172 19 23 Rome Statute of the International Criminal Court 1174 19 24 1999 U N Secretary General’s Bulletin for U N Forces 1175 19 25 2005 ICRC Study on Customary International Humanitarian Law 1175 19 26 AP III 1176 xvi LIST OF ABBREVIATIONS To make the manual easier to read the use of abbreviations has often been avoided especially in the main text Nonetheless the following abbreviations of the titles of documents have been used for frequently cited documents Abbreviation 1899 Hague II 1899 Hague II Reg 1909 Declaration of London 1914 Rules of Land Warfare 1925 Geneva Gas and Bacteriological Protocol 1928 Pan American Maritime Neutrality Convention 1929 GPW 1929 GWS 1940 Rules of Land Warfare 1944 Chicago Convention 1954 Hague Cultural Property Convention 1955 NWIP 10-2 1956 FM 27-10 Change No 1 1976 Long Form Convention with Respect to the Laws and Customs of War on Land Jul 29 1899 32 Stat 1803 Regulations Respecting the Laws and Customs of War on Land annexed to Convention with Respect to the Laws and Customs of War on Land Jul 29 1899 32 Stat 1803 1811 Declaration Concerning the Laws of Maritime War Feb 26 1909 reprinted in James Brown Scott The 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 War Department Office of the Chief of Staff Rules of Land Warfare Apr 25 1914 Protocol for the Prohibition of the Use in War of Asphyxiating Poisonous or Other Gases and of Bacteriological Methods of Warfare Jun 17 1925 94 LNTS 65 Pan American Maritime Neutrality Convention Feb 20 1928 47 Stat 1989 Geneva Convention Relative to the Treatment of Prisoners of War Jul 27 1929 47 Stat 2021 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field Jul 27 1929 47 Stat 2074 War Department Field Manual 27-10 Rules of Land Warfare 1940 Convention on International Civil Aviation Dec 7 1944 61 Stat 1180 Convention for the Protection of Cultural Property in the Event of Armed Conflict 249 UNTS 240 Department of the Navy Office of the Chief of Naval Operations Naval Warfare Information Publication 10-2 Law of Naval Warfare Sept 1955 reprinted as Appendix in Robert W Tucker The Law of War and Neutrality at Sea U S Naval War College International Law Studies Volume 50 1955 Department of the Army Field Manual 27-10 The Law of Land Warfare Jul 18 1956 with Change 1 Jul 15 1976 xvii Abbreviation 1958 UK Manual 1976 Air Force Pamphlet 110-31 1989 NWP 9 1997 Multi-Service Detention Regulation 1997 NWP 9 2001 Canadian Manual 2004 UK Manual 2006 Australian Manual 2007 NWP 1-14M 2013 German Manual AJIL AP I AP II Long Form United Kingdom War Office Manual of Military Law Part III The Law of War on Land 1958 Department of the Air Force Pamphlet 110-31 International Law – The Conduct of Armed Conflict and Air Operations Nov 19 1976 Department of the Navy Office of the Judge Advocate General Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations NWP Rev A FMFM 1-10 1989 Army Regulation 190-8 Office of the Chief of Naval Operations Instruction 3461 6 Air Force Joint Instruction 31-304 Marine Corps Order 3461 1 Enemy Prisoners of War Retained Personnel Civilian Internees and Other Detainees Oct 1 1997 U S Naval War College Center for Naval Warfare Studies Oceans Law and Policy Department Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations 1997 Canada Department of National Defence Joint Doctrine Manual B-GJ-005-104 FP-021 Law of Armed Conflict at the Operational and Tactical Levels Aug 13 2001 United Kingdom Ministry of Defence Joint Service Publication 383 The Joint Service Manual of the Law of Armed Conflict 2004 Australian Defence Force Australian Defence Doctrine Publication 06 4 Law of Armed Conflict May 11 2006 Department of the Navy Naval Warfare Publication 1-14M Marine Corps Warfighting Publication 5-12 1 Commandant Publication P5800 7A The Commander’s Handbook on the Law of Naval Operations Jul 2007 Germany Federal Ministry of Defence Joint Service Regulation ZDv 15 2 Law of Armed Conflict Manual May 1 2013 American Journal of International Law Protocol I Additional to the Geneva Conventions of August 12 1949 and Relating to the Protection of Victims of International Armed Conflicts Jun 8 1977 1125 UNTS 3 Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts Jun 8 1977 1125 UNTS 609 xviii Abbreviation AP III Appendix to 1985 CJCS Memo on AP I Bevans Biological Weapons Convention Bothe Partsch Solf New Rules CCW CCW Amended CCW Amended Mines Protocol CCW Protocol I CCW Protocol III on Incendiary Weapons Long Form Protocol III Additional to the Geneva Conventions of 12 August 1949 and Relating to the Adoption of an Additional Distinctive Emblem Dec 8 2005 2404 UNTS 1 Appendix to John W Vessey Jr Chairman Joint Chiefs of Staff Review of the 1977 First Additional Protocol to the Geneva Conventions of 1949 May 3 1985 Charles I Bevans Assistant Legal Adviser Department of State Treaties and Other International Agreements of the United States of America 1776-1949 13 Volumes 19681976 Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological Biological and Toxin Weapons and on Their Destruction Apr 10 1972 1015 UNTS 163 Michael Bothe Karl Josef Partsch Waldemar A Solf New Rules for Victims of Armed Conflicts 1982 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects Oct 10 1980 1342 UNTS 137 Amendment to Article I of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects Dec 21 2001 2260 UNTS 82 Protocol II on Prohibitions or Restrictions on the Use of Mines Booby-Traps and Other Devices as Amended on May 3 1996 Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects May 3 1996 2048 UNTS 93 Protocol I on Non-Detectable Fragments Annexed to 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 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 xix Abbreviation CCW Protocol IV on Blinding Laser Weapons CCW Protocol V on Explosive Remnants of War Chairman’s Commentary to the Copenhagen Process Principles and Guidelines Chemical Weapons Convention Copenhagen Process Principles and Guidelines Digest of United States Practice in International Law ENMOD Convention Final Record of 1949 Geneva Diplomatic Conference Final Report on the Persian Gulf War GC GC Commentary GPW GPW Commentary Greenspan Modern Law of Land Warfare Long Form 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 Protocol V on Explosive Remnants of War Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects Nov 28 2003 2399 UNTS 100 The Copenhagen Process on the Handling of Detainees in International Military Operations Chairman’s Commentary to the Copenhagen Process Principles and Guidelines Denmark Ministry of Foreign Affairs Oct 19 2012 Convention on the Prohibition of the Development Production Stockpiling and Use of Chemical Weapons and on Their Destruction Jan 13 1993 1974 UNTS 317 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 Department of State Office of the Legal Adviser Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Dec 10 1976 1108 UNTS 151 Diplomatic Conference of Geneva Final Record of the Diplomatic Conference of Geneva of 1949 Switzerland Federal Political Department 1949 Department of Defense Conduct of the Persian Gulf War Final Report to Congress 1992 Geneva Convention Relative to the Protection of Civilian Persons in Time of War Aug 12 1949 75 UNTS 287 Jean S Pictet Geneva Convention Relative to the Protection of Civilian Persons in Time of War Commentary International Committee of the Red Cross 1958 Geneva Convention Relative to the Treatment of Prisoners of War Aug 12 1949 75 UNTS 135 Jean S Pictet Geneva Convention Relative to the Treatment of Prisoners of War Commentary International Committee of the Red Cross 1960 Morris Greenspan The Modern Law of Land Warfare 1959 xx Abbreviation Grotius Law of War Peace GWS GWS Commentary GWS-Sea GWS-Sea Commentary Hague IV Hague IV Reg Hague IX Hague V Hague VIII Hague X Hague XI Hague XIII ICJ Statute ICRC AP Commentary Long Form Hugo Grotius The Law of War and Peace De Jure Belli ac Pacis Libri Tres translated by Francis W Kelsey 1925 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Aug 12 1949 75 UNTS 31 Jean S Pictet Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Commentary International Committee of the Red Cross 1952 Geneva Convention for the Amelioration of the Condition of the Wounded Sick and Shipwrecked Members of Armed Forces at Sea Aug 12 1949 75 UNTS 85 Jean S Pictet Geneva Convention for the Amelioration of the Condition of the Wounded Sick and Shipwrecked Members of Armed Forces at Sea Commentary International Committee of the Red Cross 1960 Convention IV Respecting the Laws and Customs of War on Land Oct 18 1907 36 Stat 2277 Regulations Respecting the Laws and Customs of War on Land Annex to Convention IV Respecting the Laws and Customs of War on Land Oct 18 1907 36 Stat 2295 Convention IX Concerning Bombardment by Naval Forces in Time of War Oct 18 1907 36 Stat 2351 Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land Oct 18 1907 36 Stat 2310 Convention VIII Relative to the Laying of Automatic Submarine Contact Mines Oct 18 1907 36 Stat 2332 Convention X for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention Oct 18 1907 36 Stat 2371 Convention XI Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War Oct 18 1907 36 Stat 2396 Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War Oct 18 1907 36 Stat 2415 Statute of the International Court of Justice Annex to the Charter of the United Nations Jun 26 1945 59 Stat 1055 Jean S Pictet et al Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 International Committee of the Red Cross 1987 xxi Abbreviation ICTR ICTR Statute ICTY ICTY Statute J A G S Text No 11 Law of Belligerent Occupation Lauterpacht II Oppenheim’s International Law Levie Documents on POWs Levie POWs Lieber Code LNTS LOS Convention Message from the President Transmitting AP II Long Form International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 Statute of the ICTR Annex to U N Security Council Resolution 955 1994 U N Doc S RES 955 1994 Nov 8 1994 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Statute of the ICTY Annex to Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 1993 U N Doc S 25704 May 3 1993 adopted by U N Security Council Resolution 827 1993 U N Doc S RES 827 1993 May 25 1993 U S Army The Judge Advocate General’s School Text No 11 Law of Belligerent Occupation Jun 1 1944 reissued Jul 2 1945 Lassa Oppenheim International Law Volume II Disputes War and Neutrality edited by H Lauterpacht 7th ed 1952 Howard S Levie Documents on Prisoners of War U S Naval War College International Law Studies Volume 60 1979 Howard Levie Prisoners of War in International Armed Conflicts U S Naval War College International Law Studies Volume 59 1978 E D Townsend Assistant Adjutant General General Orders No 100 Instructions for the Government of 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 League of Nations Treaty Series United Nations Convention on the Law of the Sea Dec 10 1982 1833 UNTS 396 Message from the President of the United States Transmitting the Protocol II Additional to the Geneva Conventions of August 12 1949 and Relating to the Protection of Victims of Noninternational Armed Conflicts Concluded at Geneva on June 10 1977 Treaty Doc 100-2 1987 xxii Abbreviation Message from the President Transmitting AP III CCW Amended Article 1 and CCW Protocol V on Explosive Remnants of War Long Form Message from the President of the United 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 Message from the President of the United States Transmitting LOS Convention transmitting the United Nations Convention on the Law of the Sea with Annexes and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea with Annex Adopted at New York on July 28 1994 and signed by the United States Subject to Ratification on July 29 1994 Treaty Doc 103-09 1994 Message from the President Message From the President of the United States Transmitting the 1925 Geneva Gas Transmitting The Protocol for the Prohibition of the Use in and Bacteriological Protocol War of Asphyxiating Poisonous or Other Gases and of Bacteriological Methods of Warfare Signed at Geneva June 17 1925 Executive J 1970 Message from the President Message from the President of the United States Transmitting the 1954 Hague Transmitting the Hague Convention for the Protection of Cultural Property Convention 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 xxiii Abbreviation Message from the President Transmitting the CCW Amended Mines Protocol Protocol III on Incendiary Weapons and Protocol IV on Blinding Laser Weapons Message from the President Transmitting the Chemical Weapons Convention Message from the President Transmitting the VCLT Moore’s Digest Official Records of the CDDH Outer Space Treaty Public Papers of the Presidents Regulations for the Execution of the 1954 Hague Cultural Property Convention Roerich Pact Rome Statute Long Form Message From the President of the United States Transmitting Protocols to the 1980 Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be excessively injurious or to Have Indiscriminate effects The Amended Protocol on Prohibitions or Restrictions on the Use of Mines Booby-traps or other devices Protocol II or the Amended Mines Protocol The Protocol On Prohibitions or Restrictions on the Use of Incendiary Weapons Protocol III or the Incendiary Weapons Protocol and the Protocol on Blinding Laser Weapons Protocol IV Treaty Doc 105-1 1997 Message from the President of the United States Transmitting the Convention on the Prohibition of Development Production Stockpiling and use 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 of the United States Transmitting the Vienna Convention on the Law of Treaties Signed for the United States on April 24 1970 Executive L 1971 John Bassett Moore A Digest of International Law 8 Volumes 1906 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva 1974-1977 16 Volumes 1978 Treaty on Principles Governing the Activities of States 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 of the United States National Archives and Records Administration Office of the Federal Register 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 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 Rome Statute of the International Criminal Court July 17 1998 2187 UNTS 90 xxiv Abbreviation Spaight Air Power and War Rights Spaight War Rights on Land Stat Technical Annex to CCW Amended Mines Protocol Long Form James Maloney Spaight Air Power and War Rights 3rd ed 1947 James Maloney Spaight War Rights on Land 1911 United States Statutes at Large 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 Technical Annex to Protocol V on Explosive Remnants of V On Explosive Remnants of War War Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects Nov 28 2003 2399 UNTS 132 Trial of the Major War Criminals Trial of the Major War Criminals Before the International Before the IMT Military Tribunal 42 Volumes 1947-1949 Trials of War Criminals Before the Trials of War Criminals Before the Nuernberg Military NMT Tribunals Under Control Council Law No 10 15 Volumes 1949-1953 Tucker The Law of War and Robert W Tucker The Law of War and Neutrality at Sea Neutrality at Sea U S Naval War College International Law Studies Volume 50 1955 U N Charter Charter of the United Nations Jun 26 1945 59 Stat 1031 U N Law Reports United Nations War Crimes Commission Law Reports of the Trials of War Criminals 15 Volumes 1947-1949 U S Response to ICRC CIHL John B Bellinger III Legal Adviser Department of State Study William J Haynes II General Counsel Department of Defense Letter to Dr Jacob Kellenberger President International Committee of the Red Cross Regarding Customary International Humanitarian Law Study Nov 3 2006 reprinted in 46 International Legal Materials 514 2007 U S C United States Code as of the date of publication of 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 VCLT Vienna Convention on the Law of Treaties May 23 1969 1155 UNTS 331 xxv Abbreviation Von Glahn The Occupation of Enemy Territory Whiteman’s Digest Winthrop Military Law Precedents Long Form Gerhard von Glahn The Occupation of Enemy Territory 1957 Marjorie M Whiteman Assistant Legal Adviser Department of State Digest of International Law 15 Volumes 1963-1973 William Winthrop Military Law and Precedents 2nd ed 1920 xxvi 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 1 Refer to § 1 3 Definition of the Law of War 1 This manual is not a substitute for the careful practice of law As specific legal issues 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 2 Citation to a particular source should not be interpreted to mean that the cited source 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 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 3 policies and regulations are constantly updated so practitioners are advised to ascertain whether 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 4 1 2 4 Use of Signals in This Manual This manual uses signals to introduce the sources and cross-references in the footnotes The table below identifies the signals used in this manual describes their function and provides examples of their use 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 See CCW AMENDED MINES PROTOCOL art 11 Clearly supports the proposition but does not directly state it In addition observers on military reconnaissance aircraft have not been regarded as acting clandestinely or under false pretenses 4 4 See HAGUE IV REG art 29 “Persons sent in balloons for the purpose of carrying despatches and generally of maintaining communications between the different parts 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 ” 5 Signal Function and Examples of Use Cf Supports the proposition by analogy i e discusses a different proposition that is sufficiently similar to support the original proposition A person must engage in acts of espionage in the zone of operations of a belligerent to 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 Compare Refer to § 4 15 Persons Authorized to Accompany the Armed Forces Refers to another manual section that is analogous to the proposition Persons authorized to accompany the armed forces who provide security against criminal elements generally would not be viewed as taking a direct part in hostilities and do not forfeit their protection from being made the object of attack 269 269 Consider Compare § 4 23 1 Police as Civilians Identifies a treaty that relates to the proposition but to which the United States is not a Party e g AP I Under international law every treaty in force is binding upon the Parties to it and 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 ” 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 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 ” 6 Signal Function and Examples of Use 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 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 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 7 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 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 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 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 8 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 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 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 ” 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 9 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 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 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 ” 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 10 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 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 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 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 11 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 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 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 16364 “Specifically we believe that the section would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities As discussed above § 32 b 2 was intended to implement the United States’s obligations under the Montreal Convention That Convention does not appear to apply to acts of armed forces that are otherwise governed by the laws of armed conflict … We do not think that § 32 b 2 should be construed to have the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict We note 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 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 ” 12 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 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 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 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 13 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 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 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 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 14 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 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 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 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 ” 15 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 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 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 ” 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 ” 16 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 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 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 ” 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 17 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 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 65 Refer to § 2 2 3 Applying Military Necessity 66 Refer to § 5 4 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 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 ” OF THE GROTIUS SOCIETY 29 30 1925 “There 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 18 Traditionally war has often been described as a legal condition between two or more States 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 70 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 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 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 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 ” 19 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 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 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 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 20 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 1 6 3 Human Rights Treaties 83 Human rights treaties address primarily the obligations of governments with respect to the rights of individuals including their own nationals 84 For 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 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 ” 21 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 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 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 ” 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 22 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 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 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 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 ” 23 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 was adopted as a result of a proposal made by U S delegate Eleanor Roosevelt – specifically to 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 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 ” 24 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 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 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 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 25 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 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 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 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 DoD General Counsel 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 26 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 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” 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 Adherence to 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 27 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 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 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 ” 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 28 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 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 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 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 ” 29 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 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 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 135 Refer to § 19 8 3 Martens Clause 30 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 replace a meaningful assessment of operational State practice 139 136 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 9 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 ” 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 31 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 exists as a rule of customary international law 143 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 ” 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 ” 32 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 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 148 144 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 ” 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 33 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 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 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 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 ” 34 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 resolving a case absent a sufficiently persuasive reason to reconsider the point of law 157 153 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 Department of State Legal Adviser 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 ” 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 ” 35 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 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 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 ” 36 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 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 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 ” 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” 37 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 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 ” 177 171 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 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 38 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 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 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 182 Refer to § 1 6 4 Just War Tradition 39 • 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 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 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 ” 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 40 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 The jus ad bellum criterion of proportionality is different from the jus in bello rule of proportionality in conducting attacks 194 These concepts should not be confused with one another 195 189 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 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 12 Proportionality in Conducting Attacks 195 Refer to § 3 5 1 General Distinction Between Jus in Bello and Jus ad Bellum 41 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 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 202 196 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 ” 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 42 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 reflect these prohibitions on the threat or use of force 208 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 4 208 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 ” 43 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 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 214 209 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 ” 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 ” 44 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 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 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 Department of State Legal Adviser 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 ” 219 Refer to § 17 18 1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed Groups Against Other States 45 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 security ” 223 220 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 … ” 223 U N CHARTER art 51 46 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 attacks” and uses of force that do not give rise to the right to use force in self-defense 231 224 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 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 47 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 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 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 48 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 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 ” 49 II – Principles Chapter Contents 2 1 Introduction 2 2 Military Necessity 2 3 Humanity 2 4 Proportionality 2 5 Distinction 2 6 Honor 2 1 INTRODUCTION Three interdependent principles – military necessity humanity and honor – provide 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 ” 50 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 51 armed forces and the civilian population 11 Lastly honor supports the entire system and gives parties confidence in it 12 2 2 MILITARY NECESSITY Military necessity may be defined as the principle that justifies the use of all 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 52 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 PostWorld War II war crimes tribunals rejected it as well 26 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 9 Civilians Taking a Direct Part in Hostilities 18 Refer to § 5 7 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 53 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 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 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 125556 “It is apparent from the evidence of these defendants that they considered military necessity a matter to be determined by them a complete justification of their acts We do not concur in the view that the rules of warfare 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 54 The fact that law of war rules are formulated specifically with military requirements in 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 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 55 • Certain affirmative duties to take feasible precautions to reduce the risk of harm to the 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 35 Refer to § 5 3 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” 56 efficiently as possible 41 Thus military necessity may consider the broader imperatives of 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 41 Refer to § 1 4 1 Object of War 42 Refer to § 5 7 7 3 Definite Military Advantage § 5 12 5 “Concrete and Direct Military Advantage Expected to Be Gained” 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 ” 57 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 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 46 Refer to § 5 5 6 1 Surprise Attacks § 5 5 6 2 Attacks on Retreating Forces 47 Refer to § 5 5 6 Force That May Be Applied Against Military Objectives 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 6 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 4 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 ” 58 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 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 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 … ” 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 10 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 59 • protections for the civilian population and civilian objects 61 • protections for military medical personnel units and transports 62 • 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 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 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 3 Overview of Rules for the Protection of Civilians 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 ” 60 2 4 1 Proportionality as a Limit on the Exercise of a Right 2 4 1 1 Justification in Acting Proportionality addresses cases in which one is justified in acting In jus in bello the justification at issue generally is military necessity So for example an attack on enemy soldiers that incidentally damages civilian property would trigger proportionality considerations On the other hand where there is no justification for acting such as unlawful attacks directed against the civilian population proportionality concerns would not be reached 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 proportionality rule in conducting attacks does not require that no incidental damage result from attacks Rather this rule obliges persons to refrain from attacking where the expected harm incidental to such attacks would be excessive in relation to the military advantage anticipated to be gained 70 Under the law of war judgments of proportionality often involve difficult and subjective comparisons 71 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 72 2 4 2 Proportionality and the Law of War The principle of proportionality is reflected in many areas in the law of war Proportionality most often refers to the jus in bello standard applicable to persons conducting attacks 73 Proportionality considerations however may also be understood to apply to the party subject to attack which must take feasible precautions to reduce the risk of 68 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 ’” 69 Refer to § 1 4 2 Nature of War 70 Refer to § 5 12 Proportionality in Conducting Attacks 71 Refer to § 5 12 4 “Excessive” Compare § 2 2 3 Applying Military Necessity 72 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 73 Refer to § 5 12 Proportionality in Conducting Attacks 61 incidental harm 74 Proportionality also plays a role in assessing whether weapons are prohibited because they are calculated to cause unnecessary suffering 75 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 76 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 77 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 78 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 79 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 74 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 75 Refer to § 6 6 3 3 Clearly Disproportionate 76 Refer to § 1 11 1 2 The Means Must Be Proportionate to the Just Cause Proportionality – Jus ad Bellum 77 Refer to § 18 18 2 4 Proportionality in Reprisal 78 See e g J Fred Buzhardt DoD General Counsel 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 ” 79 Refer to § 4 2 The Armed Forces and the Civilian Population 62 purpose e g not being made the object of attack 80 However for any particular legal purpose a person may not claim the distinct rights afforded to both combatants and civilians at the same time 81 2 5 2 Discriminating in Conducting Attacks Against the Enemy Distinction requires parties to a conflict to discriminate in conducting attacks against the enemy 82 On the one hand consistent with military necessity parties may make enemy combatants and other military objectives the object of attack 83 On the other hand consistent with humanity parties may not make the civilian population and other protected persons and objects the object of attack 84 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 85 2 5 3 Distinguishing a Party’s Own Persons and Objects Distinction enjoins the party controlling the population 86 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 87 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 80 Refer to § 4 2 3 Mixed Cases 81 Refer to § 4 2 2 No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the Same Time 82 Refer to § 5 6 Discrimination in Conducting Attacks 83 Refer to § 5 6 1 Persons Objects and Locations That Are Not Protected From Being Made the Object of Attack 84 Refer to § 5 6 2 Persons Objects and Locations That Are Protected From Being Made the Object of Attack 85 Refer to § 5 4 Assessing Information Under the Law of War 86 Refer to § 5 3 1 Responsibility of the Party Controlling Civilian Persons and Objects 87 See J Fred Buzhardt DoD General Counsel 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 ” 63 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 88 Second other rules obligate parties to mark protected persons and objects to help ensure they receive the protections of that status 89 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 90 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 91 For example it may be appropriate to evacuate civilians from danger areas 92 Similarly if feasible military commanders should avoid placing military objectives in densely populated areas 93 In addition it may be appropriate to establish zones where civilians and other protected persons may seek refuge 94 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 95 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 96 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 88 Refer to § 5 22 Treachery or Perfidy Used to Kill or Wound 89 Refer to § 5 14 4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such 90 Refer to § 4 6 4 Having a Fixed Distinctive Sign Recognizable at a Distance § 4 6 5 Carrying Arms Openly 91 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 92 Refer to § 5 14 2 Removing Civilians and Civilian Objects From the Vicinity of Military Objectives 93 Refer to § 5 14 1 Refraining From Placing Military Objectives in Densely Populated Areas 94 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 95 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 96 Refer to § 2 6 2 Certain Amount of Fairness in Offense and Defense 64 because civilians generally do not wear camouflage 97 Similarly U S forces have worn nonstandard uniforms to blend with local forces while remaining distinct from the civilian population 98 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 99 However if such an object were seized from the enemy such seizure would have to have been imperatively demanded by the necessities of war 100 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 101 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 102 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 103 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 104 97 Refer to § 5 25 2 Examples of Ruses footnote 700 and accompanying text 98 Refer to § 5 25 2 1 Mimicking Other Friendly Forces 99 Refer to § 5 16 1 Protected Persons and Objects 100 Refer to § 5 17 2 2 Seizure or Destruction of Enemy Property to Support Military Operations 101 Refer to § 4 9 2 Requirements for Military Medical and Religious Status 102 Refer to § 5 5 4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to Discriminate in Conducting Attacks 103 Refer to § 7 15 2 1 Removal or Obscuration of the Distinctive Emblem 104 Refer to § 17 5 2 1 Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect Them 65 2 6 HONOR Honor demands a certain amount of fairness in offense and defense and a certain mutual respect between opposing forces 105 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 honor 106 Honor continues to be vital to giving the law of war effect today Honor is also called chivalry Chivalry is often associated with a specific historical context—a code of behavior for knights in Europe during the Middle Ages Honor may be more readily understood as incorporating 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 that would constitute a breach of trust with the enemy 107 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 108 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 109 105 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 ” 106 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 107 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 ” 108 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 ” 109 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 ” 66 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 110 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 111 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 112 Similarly POWs are bound to adhere to paroles on their personal honor 113 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 another 114 For example enemies must deal with one another in good faith in their non-hostile relations 115 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 116 Honor however does not forbid parties from using ruses and other lawful deceptions against which the enemy ought to take measures to protect itself 117 2 6 3 Certain Mutual Respect Between Opposing Forces Honor demands a certain mutual respect between opposing 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 110 Refer to § 1 10 1 1 Legal Force of Treaties Among States 111 Refer to § 18 1 2 National Obligations to Implement and Enforce the Law of War 112 Refer to § 18 3 Duties of Individual Members of the Armed Forces 113 Refer to § 9 11 2 Parole of POWs 114 Refer to § 5 21 1 Harms From Breaches of Good Faith 115 Refer to § 12 2 Principle of Good Faith in Non-Hostile Relations 116 Refer to § 5 21 Overview of Good Faith Perfidy and Ruses 117 Refer to § 5 25 Ruses of War and Other Lawful Deceptions 67 personal hostility 118 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 119 2 6 3 1 Honor and Rules for POW Captivity In demanding a certain mutual respect between opposing 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 120 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 121 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 applying in their own forces 122 In addition capitulations agreed upon between belligerents must take into account the rules of military honor 123 2 6 3 2 Honor and the Class of Combatants In demanding a certain mutual respect between opposing forces honor also reflects the premise that combatants are a common class of professionals who have undertaken to comport themselves honorably 124 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 118 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 ” 119 Refer to § 9 2 2 Responsibility of the Detaining Power 120 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 ’” 121 Refer to § 9 5 1 Respect for Their Persons and Honor 122 Refer to § 9 22 3 Saluting Between POWs and Officers of the Detaining Power 123 Refer to § 12 8 3 Rules of Military Honor 124 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 ” 68 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 125 On the other hand private persons are generally denied the privileges of combatant status because they do not belong to this class of combatants 126 The principle that combatants share a common class has also been a foundation for the trial of enemy combatants by military tribunals 127 For example the GPW expresses a preference for POWs to be tried by military courts rather than civilian courts 128 125 Refer to § 4 6 1 GPW 4A 2 Conditions in General 126 Refer to § 4 18 3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status 127 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 ” 128 Refer to § 9 26 3 Trial by Military Courts 69 III – Application of the Law of War Chapter Contents 3 1 Introduction 3 2 Situations to Which the Law of War Applies 3 3 Status of the Parties and the Law of War 3 4 When Jus in Bello Rules Apply 3 5 Relationship Between Jus in Bello and Jus ad Bellum 3 6 Reciprocity and Law of War Rules 3 7 Applying Rules by Analogy 3 8 End of Hostilities and the Application of the Law of War 3 9 Law of War Duties Also Applicable in Peace 3 1 INTRODUCTION Whether a particular law of war rule applies to a situation may depend on a variety 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 1 Refer to § 3 4 When Jus in Bello Rules Apply 2 Refer to § 3 3 Status of the Parties and the Law of War 3 Refer to § 3 6 1 Treaty Provisions That Provide for Reciprocity in the Scope of Application of the Treaty 4 Refer to § 9 3 POW Status 5 Refer to § 1 5 “War” as a Legal Concept 70 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 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 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 ” 71 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 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 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 72 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 • 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 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 ” 73 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 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 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 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 ” 74 apply while as between the States and non-State armed groups the rules of non-international armed conflicts would apply 28 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 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 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 0401 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 75 Historically certain conditions had to be satisfied before outside States could recognize a non-State armed group as a belligerent • 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 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 ” 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 ” 76 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 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 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 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 IIIProtocol 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 ” IV “But 40 Detailed Analysis of Provisions Attachment 1 to George P Shultz Letter of Submittal Dec 13 1986 MESSAGE 1-2 “This Article technically excludes four types of situations from the FROM THE PRESIDENT TRANSMITTING AP II 77 Moreover the United States has not accepted this provision in the context of the CCW 41 The 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 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 42 Memorandum submitted in United States v Shakur 690 F Supp 1291 S D N Y 1988 III CUMULATIVE DIGEST 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 ” OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 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 78 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 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 47 Refer to § 1 3 3 2 Law of War as Permissive Law 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 ” 79 simply by providing objective evidence of its decision to resort to force through formal declarations that hostilities exist between them 54 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 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 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 ” 80 hostilities and that jus in bello restrictions apply to the activities that will effectuate those intentions 59 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 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 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 81 not recognized by them 65 The de facto existence of an armed conflict is sufficient to trigger 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 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 ” 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 ” 82 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 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 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 ” 83 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 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 ” 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 ” 74 See e g Prosecutor v Tadić ICTY Trial Chamber IT-94-1-A Judgment ¶562 May 7 1997 “In an armed conflict of an internal or mixed character these closely related criteria are used solely for the purpose as 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 ” 75 76 See e g GPW COMMENTARY 35-36 collecting conditions that States negotiating the 1949 Geneva Conventions viewed as indicative factors Prosecutor v Boskoski ICTY Trial Chamber II IT-04-82-T Judgment ¶177 Jul 10 2008 “Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of 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 84 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 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 ” 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 ” 85 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 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 proportionality in jus in bello generally refers to the standard that the expected incidental harm to the civilian population and civilian objects should not be disproportionate to the anticipated military advantage from an attack 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 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 86 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 87 Similarly once an occupation exists in fact the law of occupation applies regardless of whether the invasion was lawful under jus ad bellum 88 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 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 12 Proportionality in Conducting Attacks 86 GWS art 1 “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances ” 87 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 86 3 5 2 2 Compliance With Jus ad Bellum Is Required Regardless of Compliance With Jus in Bello Compliance with jus ad bellum is required regardless of compliance with jus in bello 89 For example a State that complies with jus in bello rules may nonetheless commit aggression under jus ad bellum 90 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 91 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 92 As a consequence both sides could deny protections to their opponent and no one would benefit from the law of war’s humanitarian protections 93 Moreover there might not be a competent procedure for deciding which if any State has unlawfully resorted to force 94 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 ” 88 Refer to § 11 2 1 Military Occupation as a Fact 89 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 ” 90 Refer to § 1 11 3 1 Aggression 91 Refer to § 17 18 1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed Groups Against Other States 92 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 ” 93 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 ” 94 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 ” 87 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 force lawfully under applicable international law 95 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 96 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 97 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 98 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 99 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 100 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 101 In practice however the U N Security Council frequently has affirmed the obligations of States and parties to conflicts to comply with 95 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 ” 96 Refer to § 1 11 1 1 Competent Authority Right Authority to Wage War for a Public Purpose 97 Refer to § 3 3 1 International Armed Conflict and Non-International Armed Conflict 98 Refer to § 4 18 3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status 99 Refer to § 11 2 2 3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory 100 Refer to § 1 11 2 U N Charter Framework and the U N Security Council 101 Refer to § 1 11 2 1 U N Member State Obligations With Respect to U N Security Council Decisions 88 the law of war including military forces operating pursuant to U N Security Council decisions 102 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 103 Decisions of the Security Council however may alter the obligations of member States of the United Nations under the law of neutrality 104 In addition a U N Security Council authorization may provide additional authority for an Occupying Power to govern occupied territory 105 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 106 A number of treaties on the law of 102 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 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 ” 103 Refer to § 18 12 U N Security Council and Enforcement of the Law of War 104 Refer to § 15 2 3 The Law of Neutrality Under the Charter of the United Nations 105 Refer to § 11 1 2 5 Occupation and U N Security Council Resolutions 106 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 89 neutrality have such a clause 107 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 108 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 109 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 110 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 111 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 112 “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 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 ” 107 Refer to § 15 1 4 Application of Treaties on Neutrality and Customary International Law 108 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 ” 109 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 110 Refer to § 19 8 2 1 Hague IV and Customary International Law 111 Refer to § 18 18 Reprisals 112 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 ” 90 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 113 Even if the application of a law of war rule does not depend on reciprocity as a matter of law reciprocity may be important as a practical way of encouraging compliance by the adversary with the law of war 114 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 115 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 116 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 117 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 118 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 119 In addition hospital ships and coastal rescue craft must 113 Refer to § 18 21 2 Tu Quoque 114 Refer to § 18 2 2 Encouraging Reciprocal Adherence by the Adversary 115 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 ” 116 Refer to § 9 2 5 Reciprocity in the Treatment of POWs 117 Refer to § 9 37 1 Agreements on POW Release and Repatriation 118 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 ” 119 Refer to § 4 6 Other Militia and Volunteer Corps 91 not be used for military purposes in order to receive their protection from capture and from being made the object of attack 120 Similarly cultural property must not be used for military purposes in order to receive special protection 121 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 122 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 123 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 124 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 125 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 120 Refer to § 5 18 8 2 Conditions for the Granting of Special Protection – No Use for Military Purposes 121 Refer to § 7 12 2 2 No Use for Military Purposes 122 Refer to § 15 3 3 Correlative or Reciprocal Nature of Rights and Duties Under the Law of Neutrality 123 Refer to § 2 5 5 Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a Party’s Own Persons and Objects 124 Refer to § 15 16 3 1 Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy 125 Refer to § 10 29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a Belligerent’s Home Territory 92 be appropriate to apply the GWS and GWS-Sea rules for the respectful treatment and handling of enemy military dead to all persons 126 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 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 127 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 128 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 129 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 130 For example it may be appropriate for a State that liberates its ally’s 126 Refer to § 7 7 Treatment and Handling of Enemy Military Dead 127 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 ” 128 Refer to § 10 3 3 Categories of Nationals Specifically Excluded From the Definition of Protected Person Under the GC 129 Refer to § 3 1 1 2 Applying Law of War Standards as Reflecting Minimum Legal Standards 130 Refer to § 11 1 3 Application of Occupation Law to Situations Not Constituting Belligerent Occupation 93 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 131 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 by analogy to non-international armed conflict 132 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 133 Of course if the test for the existence of hostilities continues to be met then hostilities cannot be deemed to have ceased 134 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 135 131 Refer to § 11 1 3 2 Liberation of Friendly Territory 132 Refer to § 17 2 2 3 Application of IAC Rules by Analogy 133 Refer to § 3 4 When Jus in Bello Rules Apply 134 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 ” 135 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 ” 94 3 8 1 1 Agreements to End Hostilities Parties to a conflict often have negotiated peace treaties to end hostilities 136 Armistice agreements i e temporary cease-fires are negotiated to suspend hostilities 137 In addition the U N Security Council may require certain steps leading to the end of hostilities 138 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 139 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 140 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 141 Similarly protected persons whose release repatriation or reestablishment may take place after the general close of military operations continue to benefit 136 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 137 Refer to § 12 11 1 2 Armistice as a Suspension of Hostilities and Not a Peace Treaty 138 Refer to § 12 14 U N Security Council Cease-Fires 139 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 ” 140 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 ” 141 Refer to § 9 3 6 Commencement and Duration of POW Status and Treatment 95 from the protection of the GC 142 In addition duties under occupation law may continue after hostilities have ended 143 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 144 In addition POWs and protected persons in general must be released and returned to the party to the conflict to which they belong 145 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 146 • train their armed forces in accordance with the law of war 147 • issue instructions and regulations for their armed forces in conformity with the law of war 148 • review the legality of new weapons 149 • take appropriate measures to prepare for the safeguarding of cultural property 150 and • take other appropriate measures to ensure the implementation and enforcement of law of war treaties 151 States that are at peace have obligations under the law of neutrality in relation to States 142 Refer to § 10 3 4 Commencement and Duration of Protected Person Status 143 Refer to § 11 3 2 Duration of GC Obligations in the Case of Occupied Territory 144 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 145 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 146 Refer to § 18 6 1 General Dissemination and Study of Treaties 147 Refer to § 18 6 2 Special Instruction or Training 148 Refer to § 18 7 Instructions Regulations and Procedures to Implement and Enforce the Law of War 149 Refer to § 6 2 DoD Policy of Reviewing the Legality of Weapons 150 Refer to § 5 18 2 1 Peacetime Obligations to Prepare for the Safeguarding of Cultural Property 151 Refer to § 18 1 2 National Obligations to Implement and Enforce the Law of War 96 that are at war 152 152 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 10 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 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 4 3 4 Types of Unprivileged Belligerents Unprivileged belligerents may generally be 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 8 Combatants 51 Refer to § 5 10 Persons Placed Hors de Combat 52 Refer to § 5 5 8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks 106 Combatants must only direct their attacks against military objectives 54 Combatants must take feasible precautions in conducting attacks to reduce the risk of harm to the civilian population 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 Rules on Conducting Assaults Bombardments and Other Attacks 55 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 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 ” 90 For example Announcement Concerning Soviet Allegations on Allied Prisoners of War May 3 1945 12 DEPARTMENT OF STATE BULLETIN 864 May 6 1945 “In as much as the American Government has always insisted that all wearers of the American uniform whether American citizens or not are as American soldiers entitled to full protection of the 1929 Geneva convention and has so informed the enemy these German 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 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 113 reprisal violated the prohibition against executions without a fair trial and improperly denied POW status to soldiers wearing a uniform behind enemy lines 103 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 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 “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 114 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 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 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 ” 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 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 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 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 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 ” 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 399-400 117 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 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 133 Refer to § 9 11 2 Parole of POWs 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 118 d that of conducting their operations in accordance with the laws and customs of war 139 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 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 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 119 because the armed group failed to satisfy the conditions 145 Similarly isolated departures from a 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 149 145 See G I A D Draper The Status of Combatants and the Question of Guerrilla Warfare 45 BRITISH YEAR BOOK 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 ” OF INTERNATIONAL LAW 173 146 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 ” 120 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 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 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 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 121 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 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 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 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 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 OF INTERNATIONAL LAW 173 122 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 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 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 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 ” 123 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 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 170 167 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 ” 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 1617 1862 “The Southern prisoners made at Fort Donelson whom I have seen at the West had no uniform They were indeed dressed very much alike but it was the uniform dress of the countryman in that region Yet they 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 124 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 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 ¶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 3 172 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 64-66 125 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 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 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” 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 ” 126 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 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 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 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 ” 127 4 8 1 3 “Civilian” in the GC The GC does not define “civilian ” although it uses the word The GC uses the term “protected person” to refer to persons protected by 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 192 189 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 199 189 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 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 9 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 in Conducting Attacks 199 Refer to § 5 11 Feasible Precautions in 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 128 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 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 200 Refer to § 4 18 Private Persons Who Engage in Hostilities 201 Refer to § 5 3 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 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 129 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 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 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 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 130 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 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 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 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 131 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 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 225 220 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 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 132 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 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 231 226 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 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 133 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 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 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 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 134 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 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 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 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” 135 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 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 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 ” 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 ” 136 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 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 264 258 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 ” 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 ” 137 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 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 270 264 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 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 138 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 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 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 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 139 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 CommissionerGeneral 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 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 ” 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 140 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 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 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 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 141 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 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 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 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 142 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 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 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 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 ” 143 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 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 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 ” 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 ” 144 attack 2 must accept the risk 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 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 proximity to military operations and military objectives 303 For example they should expect that they might be incidentally injured in an attack against the force that they accompany Similarly in some cases the location at which they are serving may itself be a military objective 304 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 299 Refer to § 4 10 1 Military Medical and Religious Personnel - Conduct of Hostilities 300 Refer to § 5 9 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 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 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives 304 Refer to § 5 7 8 4 Examples of Military Objectives – Places of Military Significance 145 regarded as taking a direct part in hostilities and may be made the object of attack 305 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 306 The arming of persons authorized to accompany the armed forces is analogous to the arming of military medical and religious personnel 307 DoD practice has been to permit commanders to authorize persons authorized to accompany the armed forces to carry defensive weapons if necessary 308 A State may decide to arm persons authorized to accompany the armed forces for 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 309 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 305 Refer to § 5 9 3 1 Examples of Taking a Direct Part in Hostilities 306 Refer to § 4 2 2 No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the Same Time 307 Refer to § 7 10 3 4 Arming of Military Medical Units or Facilities 308 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 309 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 ” 146 taking a direct part in hostilities and do not forfeit their protection from being made the object of attack 310 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 311 DoD policies have addressed the use of non-military personnel to provide security services for DoD components 312 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 international armed conflict 313 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 314 Persons who are authorized to accompany the armed forces must be issued an identity card to confirm their status 315 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 316 310 Compare § 4 23 1 Police as Civilians 311 Refer to § 5 9 3 1 Examples of Taking a Direct Part in Hostilities 312 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 313 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 ” 314 Refer to § 9 18 3 Advance of Pay 315 Refer to § 9 4 3 Issue of Identification Cards to Persons Liable to Become POWs 316 Refer to § 4 27 1 Identification Cards Used to Help Clarify Status 147 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 317 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 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 318 and such persons would be in the position of unprivileged belligerents in relation to those activities 319 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 320 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 321 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 317 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 ” 318 Refer to § 4 18 Private Persons Who Engage in Hostilities 319 Refer to § 4 19 Rights Duties and Liabilities of Unprivileged Belligerents 320 Refer to § 18 19 4 1 Limits on Military Jurisdiction Over U S Citizens Who Are Not Members of the Armed Forces 321 Refer to § 18 23 3 Command Responsibility § 18 23 Theories of Individual Criminal Liability 148 forces 322 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 323 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 324 Belligerent merchant vessels or civil aircraft may resist attacks by enemy forces including by eventually seizing the attacking vessels or aircraft 325 However merchant vessels or civil aircraft should not commit hostile acts in offensive combat operations 326 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 327 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 328 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 ” 329 Although these provisions proved 322 Refer to § 4 15 Persons Authorized to Accompany the Armed Forces 323 Refer to § 15 14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked Civil Aircraft 324 Refer to § 13 5 Enemy Merchant Vessels 325 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 ” 326 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 ” 327 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 328 GPW COMMENTARY 65 “In the past it was generally recognized that in time of war merchant seamen were liable to capture ” 329 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 ” 149 ineffective during World War I and World War II 330 the GPW allows for the possibility that they might apply 331 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 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 332 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 333 In some cases “saboteurs” has been used in a purely factual way to refer to those persons engaged in damaging or destroying enemy materiel 334 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 330 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 ” 331 For further background see II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 238-39 418-19 332 Refer to § 4 17 2 Spies 333 Refer to § 4 17 3 Saboteurs and Other Persons Engaging in Secretive Hostile Acts Behind Enemy Lines 334 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 ” 150 material and who by definition would not be entitled to receive the privileges of combatant status 335 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 336 During war any person—military or civilian—whose actions meet all of these elements may be considered a spy under the law of war 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 337 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 335 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 ” 336 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 ” 337 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 ” 151 Persons who act openly such as by wearing the uniform of the armed forces to which they belong do not meet this element 338 For example members of a ground reconnaissance team or couriers who wear their normal uniforms would not meet this element 339 In addition observers on military reconnaissance aircraft have not been regarded as acting clandestinely or under false pretenses 340 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 341 “Zone of operations” has been construed broadly to include areas supporting the war effort 342 However a person who engages in surveillance or information gathering from outside territory controlled by 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 343 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 338 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 ” 339 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 340 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 ” 341 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 342 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 ” 343 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 ” 152 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 344 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 saboteurs 345 acting clandestinely or under false pretenses in the zone of operations of a belligerent are treated as spies 346 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 ” 347 “secretly entering the lines ” 348 or “activities hostile to the security of the State ” 349 344 Refer to § 4 17 3 Saboteurs and Other Persons Engaging in Secretive Hostile Acts Behind Enemy Lines 345 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 ” 346 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 ” 347 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 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 ” 348 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 ” 349 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 ” 153 These kinds of activities almost necessarily take on the character of spying 350 In many cases these actions have been reported as spying 351 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 352 4 17 4 Spying and Sabotage Permissible Under the Law of War Under the law of war belligerents may employ spies and saboteurs 353 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 354 Similarly spying and sabotage also have not been listed as war crimes punishable under the statutes of international criminal tribunals 355 In addition law of war treaties that regulate but do not prohibit spying recognize implicitly that belligerents may use this method of warfare 356 350 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 ” 351 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 ” 352 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 ” 353 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” 354 Refer to § 18 9 5 War Crimes – Notes on Terminology 355 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 154 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 357 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 358 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 359 Although not explicitly reflected in the GPW this understanding was the general understanding at the 1949 Diplomatic Conference 360 and is reflected in other treaties 361 judicial decisions 362 military manuals 363 and scholarly works 364 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 5-8 356 See HAGUE IV REG arts 24 29-31 governing the classification conduct and treatment of spies Consider AP I art 46 same 357 See § 5 22 1 Definition of Perfidy 358 Refer to § 5 14 5 Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to Distinguish Themselves From the Civilian Population 359 Compare § 4 6 1 3 Application of GPW 4A 2 Conditions to the Armed Forces of a State 360 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 ” 361 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 ” 362 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 155 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 365 Persons who have never qualified for the privileges of combatant status would not benefit from this rule because they cannot regain a status that they did not receive in the first place 366 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 367 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 ” 363 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 ” 364 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 ” 365 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” 366 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 367 Refer to § 4 27 2 POW Protections for Certain Persons Until Status Has Been Determined 156 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 368 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 369 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 ” 370 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 368 Refer to § 4 19 Rights Duties and Liabilities of Unprivileged Belligerents 369 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 ” 370 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 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 ” 157 rule applicable when a civilian forfeits his or her protection from being made the object of attack 371 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 372 The principle of military necessity can justify taking military action such as detention to address the threat posed by such persons 373 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 374 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 375 The law of war does not condone the “farmer by day and guerilla by night ” 376 371 Refer to § 5 9 Civilians Taking a Direct Part in Hostilities 372 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 ” 373 Refer to § 2 2 1 Military Necessity as a Justification 374 Refer to § 4 2 2 No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the Same Time 375 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 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” 376 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 158 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 377 These individuals lack the principal qualification for entitlement to the privileges of combatant status—State authorization 378 This requirement for State authorization has been traced to medieval law of arms 379 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 380 And private persons who 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 381 Thus their participation in hostilities has been associated with the commission of war crimes 382 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” 377 Refer to § 1 11 1 1 Competent Authority Right Authority to Wage War for a Public Purpose 378 Refer to § 4 6 2 Belonging to a Party to the Conflict 379 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 ” 380 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 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 381 Refer to § 4 6 3 Being Commanded by a Person Responsible for His or Her Subordinates 382 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 159 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 383 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 384 It may be appropriate to use circumstantial or functional information to assess whether a person is part of a non-State armed group 385 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 386 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 387 These 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 ” 383 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 384 Refer to § 17 5 1 1 Increased Difficulty in Identifying Enemy Forces and Other Military Objectives 385 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 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 386 Refer to § 17 5 1 2 Different Support Structures for Non-State Armed Groups 387 Refer to § 4 15 Persons Authorized to Accompany the Armed Forces 160 individuals may be regarded as constructively part of the group even if they are in fact not formal members of the group 388 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 389 Performing spying sabotage and other hostile activities behind enemy lines would render a person liable to prosecution for such conduct 390 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 391 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 392 388 Hedges v Obama No 12-3644 Reply Brief for Defendant-Appellant 11-12 2d Cir Sept 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 389 Refer to § 5 9 Civilians Taking a Direct Part in Hostilities 390 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 391 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 ” 392 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 ” 161 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 393 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 394 Similarly private acts of hostility under certain conditions may be regarded as piracy 395 In contemporary parlance private acts of hostility are often punished as “terrorism ” 396 The unauthorized use of violence by private persons to achieve political ends has been viewed as contrary to the principles of democratic States 397 Moreover States have obligations under international law to repress terrorism especially when conducted on their territory against other States 398 4 19 RIGHTS DUTIES AND LIABILITIES OF UNPRIVILEGED BELLIGERENTS Unprivileged belligerents have certain rights duties and liabilities In general 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 393 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 ” 394 Refer to § 15 1 5 Domestic Neutrality Laws 395 Refer to § 13 3 3 1 Entitlement of Vessels to Conduct Attacks During Non-International Armed Conflict 396 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 397 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 ” 398 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 ” 162 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 399 basic guarantees of humane treatment in customary international law i e elementary considerations of humanity protect unprivileged belligerents 400 Moreover some treaty protections apply to certain unprivileged belligerents 401 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 402 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 403 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 404 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 fundamental guarantees of humane treatment described in Common Article 3 of the 1949 Geneva Conventions 405 In addition the United States has explicitly supported out of a sense of 399 Refer to § 4 3 1 “Unprivileged Belligerents” as a Category in Treaty Law 400 Refer to § 3 1 1 2 Applying Law of War Standards as Reflecting Minimum Legal Standards 401 See e g GPW art 3 GC art 5 402 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 403 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 ” 404 Refer to § 4 4 1 Combatants – Conduct of Hostilities 405 Refer to § 8 1 4 1 Common Article 3 of the 1949 Geneva Conventions 163 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 406 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 407 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 408 However unprivileged belligerents who are protected by the GC should be afforded its full protections when feasible 409 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 410 DoD practice has been to review periodically the detention of all persons not afforded POW status or treatment 411 4 19 4 Unprivileged Belligerents – Liability for Participation in Hostilities Although international law affords lawful combatants a privilege or immunity from prosecution 412 unprivileged belligerents lack such protection 413 A State may punish unprivileged enemy belligerents 414 subject to applicable requirements such as a fair trial 415 406 Refer to § 8 1 4 2 Article 75 of AP I and Relevant AP II Provisions 407 Refer to § 4 27 2 POW Protections for Certain Persons Until Status Has Been Determined 408 Refer to § 10 4 Derogation for Security Reasons 409 Refer to § 10 4 4 Limits on Derogation 410 Refer to § 8 14 3 1 Participants in Hostilities or Persons Belonging to Armed Groups That Are Engaged in Hostilities 411 Refer to § 8 14 2 Review of Continued Detention for Security Reasons 412 Refer to § 4 4 3 Combatants - Legal Immunity From a Foreign State’s Domestic Law 413 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 414 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 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 ” 415 See HAGUE IV REG art 30 “A spy taken in the act shall not be punished without previous trial ” 164 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 ” 416 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 417 However in some cases offenses related to unprivileged belligerency have been characterized as violations of the law of war 418 For example spying has been called a violation of the law of war or “war crime ” 419 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 420 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 prohibitions the punishment of unprivileged belligerents like all exercises of the war powers emanates from the domestic law of the belligerent State 421 On the other hand if one views the 416 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’ ” 417 Refer to § 4 17 4 Spying and Sabotage Permissible Under the Law of War 418 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’ ” 419 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 ” 420 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” 421 Refer to § 1 3 3 1 Law of War as Prohibitive Law 165 law of war as also including sources of authority the punishment of unprivileged belligerents is also grounded in the international law of war 422 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 423 The maintenance of the children concerned means their feeding clothing and accommodation care for their health and where necessary medical and hospital treatment 424 Their education shall as far as possible be entrusted to persons of a similar cultural tradition 425 This provision is intended to exclude inappropriate religious or political propaganda designed to influence them 426 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 24 of the GC 427 422 Refer to § 1 3 3 2 Law of War as Permissive Law 423 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 ” 424 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 ” 425 GC art 24 “Their education shall as far as possible be entrusted to persons of a similar cultural tradition ” 426 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 ” 427 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 ” 166 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 428 The age of twelve was chosen because it was considered that children over twelve are generally capable of stating their own identity 429 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 430 4 20 3 Protection for Children in Occupied Territory Provisions of the GC address the protection of children in occupied territory 431 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 432 • special treatment for children during internment including o ensuring the education of children and young people including school attendance 433 o additional food for children under fifteen in proportion to their physiological needs 434 and o special playgrounds reserved for children and young people 435 and 428 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 ” 429 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 ” 430 Refer to § 10 7 1 Regulation of the Situation of Protected Persons in Principle by Provisions Applicable to Aliens in Time of Peace 431 Refer to § 11 13 Protection of Children in Occupied Territory 432 Refer to § 10 10 3 Families Kept Together 433 Refer to § 10 16 2 Education 434 Refer to § 10 13 1 2 Additional Food for Certain Groups 435 Refer to § 10 16 3 Opportunities for Physical Exercise Sports and Outdoor Games 167 • 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 436 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 437 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 438 U S law also makes it a crime to use a person under 15 years of age to participate actively in hostilities 439 These restrictions in U S law are similar to provisions in treaties to which the United States is not a Party 440 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 441 the United States must “take all feasible measures to ensure that members of its armed forces who have not attained the age of 18 years do not take a direct part in hostilities ” 442 The United States 436 Refer to § 10 9 6 Agreements for the Release Return or Accommodation in a Neutral Country of Certain Classes of Internees 437 Refer to § 17 10 2 Children and Participation in Non-International Armed Conflict 438 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” 439 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” 440 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 441 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” 442 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 ” 168 made a statement of understanding regarding the meaning of the phrase “direct part in hostilities” in the Child Soldiers Protocol 443 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 444 In a declaration deposited pursuant to Article 3 2 of the Child Soldiers Protocol 445 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 446 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 the additional provision for their education might be applicable 447 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 443 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 9 Civilians Taking a Direct Part in Hostilities 444 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 ” 445 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 ” 446 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 ” 447 Refer to § 9 16 2 Education § 10 16 2 Education 169 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 448 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 449 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 450 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 451 AP I denies “mercenaries” the right to be lawful combatants or POWs 452 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 453 448 See Edward R Cummings Attorney-Adviser Department of State International Legal Rights of Captured Mercenaries Oct 17 1980 III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 19811988 3457 “The act of being a mercenary is not a crime under international law An individual who is accused 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 ” 449 Refer to § 4 5 Armed Forces of a State 450 Refer to § 15 6 2 1 No More Severe Treatment Than Nationals of an Opposing Belligerent State 451 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 ” 452 See AP I art 47 1 “A mercenary shall not have the right to be a combatant or a prisoner of war ” 453 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 170 However AP I defines “mercenary” very narrowly 454 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 455 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 456 but creates greater obligations for Parties to punish and repress mercenarism 457 The United States is not a Party to 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 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 ” 454 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 ” 455 Edward R Cummings Attorney-Adviser Department of State International Legal Rights of Captured Mercenaries Oct 17 1980 III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 19811988 3457 3461 “This narrow definition of mercenaries in effect denies prisoner-of-war status to individuals 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 ” 456 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 ” 457 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 ” 171 to the recruiting use financing or training of mercenaries 458 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 459 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 460 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 461 4 23 LAW ENFORCEMENT OFFICERS In general police officers receive the rights duties and liabilities of civilian status 462 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 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 463 458 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 459 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 …” 460 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 ” 461 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 ” 462 Refer to § 4 8 Rights Duties and Liabilities of Civilians 463 Refer to § 4 4 Rights Duties and Liabilities of Combatants 172 4 23 1 Police as Civilians In general members of law enforcement agencies have civilian status 464 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 465 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 466 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 467 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 468 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 469 4 24 JOURNALISTS In general journalists are civilians However journalists may be members of the armed forces persons authorized to accompany the armed forces or unprivileged belligerents 4 24 1 Military Journalists Members of the armed forces may serve as journalists or in some other public affairs capacity These persons have the same status as other members of the armed forces 470 464 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 ” 465 Refer to § 5 9 3 2 Examples of Acts Not Considered Taking a Direct in Hostilities 466 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 ” 467 Refer to § 4 5 Armed Forces of a State 468 Refer to § 4 15 Persons Authorized to Accompany the Armed Forces 469 Refer to § 17 4 1 Ability of a State to Use Its Domestic Law Against Non-State Armed Groups 173 4 24 2 Other Journalists In general independent journalists and other media representatives are regarded as civilians 471 i e 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 472 4 24 2 1 Journalists Authorized to Accompany the Armed Forces Journalists authorized to accompany the armed forces have the status of such persons 473 For example they are detained as POWs during international armed conflict 474 Such journalists are sometimes called “war correspondents ” 475 DoD practice has been to embed journalists with units during military operations 476 Journalists authorized to accompany the armed forces may be detained by opposing military forces Since such personnel are liable to become POWs they must be issued identification cards so that they may establish their entitlement to POW status upon capture by the enemy during international armed conflict 477 4 24 3 General Rules for the Treatment of Civilian Journalists and Journalists Authorized to Accompany the Armed Forces 4 24 3 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 470 Refer to § 4 4 Rights Duties and Liabilities of Combatants 471 See Hedges v Obama No 12-3644 Reply Brief for Defendant-Appellant 11 2d Cir Sept 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 ” 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 ” 472 Refer to § 5 9 3 2 Examples of Acts Not Considered Taking a Direct in Hostilities 473 Refer to § 4 15 Persons Authorized to Accompany the Armed Forces 474 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 ” 475 GPW art 4A 4 AP I art 79 2 476 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 ” 477 Refer to § 9 4 3 Issue of Identification Cards to Persons Liable to Become POWs 174 incidental to an enemy attack or from other dangers 478 To minimize the risk that they will be made the object of attack journalists should seek to distinguish themselves from military forces Moreover in some cases the relaying of information such as providing information of immediate use in combat operations could constitute taking a direct part in hostilities 479 Civilian journalists and journalists authorized to accompany the armed forces should not participate in the fighting between the belligerents in this or other ways if they wish to retain protection from being made the object of attack 480 Like other civilians civilian journalists who engage in hostilities against a State may be punished by that State after a fair trial 4 24 4 Journalists and Spying Reporting on military operations can be very similar to collecting intelligence or even spying 481 A journalist who acts as a spy may be subject to security measures and punished if captured 482 To avoid being mistaken for spies journalists should act openly and with the permission of relevant authorities Presenting identification documents such as the identification card issued to authorized war correspondents or other appropriate identification may help journalists avoid being mistaken as spies 483 4 24 5 Security Precautions and Journalists States may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy Under the law of war there is no special right for journalists to enter a State’s territory without its consent or to access areas of military operations without the consent of the State conducting those operations 484 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 485 478 For example 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 wellknown division of the Twenty-fourth Army Corps ” Refer to § 4 15 2 3 Increased Risk of Incidental Harm 479 Refer to § 5 9 3 1 Examples of Taking a Direct Part in Hostilities 480 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 ” 481 Refer to § 4 17 2 Spies 482 Refer to § 4 19 3 3 Necessary Security Measures § 4 19 4 Unprivileged Belligerents – Liability for Participation in Hostilities 483 Consider AP I art 79 3 journalists “may obtain an identity card similar to the model in Annex II of this Protocol This card which shall be issued by the government of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located shall attest to his status as a journalist ” 484 Compare § 4 26 2 Consent of the Parties to the Conflict Concerned 485 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 175 These delegates shall be subject to the approval of the Power with which they are to carry out their duties 486 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 delegates of the Protecting Powers 487 The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the 1949 Geneva Conventions 488 They shall in particular take account of the imperative necessities of security of the State wherein they carry out their duties 489 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 ” 490 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 491 In some cases the ICRC or another impartial humanitarian organization may assume the humanitarian functions performed by the Protecting Powers 492 4 26 1 “Impartial” To be an “impartial humanitarian organization” under the 1949 Geneva Conventions a humanitarian organization must be impartial The requirement of 486 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 487 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 488 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 489 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 490 GWS art 8 GWS-SEA art 8 same Refer to § 9 33 1 Access by Protecting Powers § 10 33 1 Access by Protecting Powers 491 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 492 Refer to § 18 15 2 Appointment of a Protecting Power 176 impartiality distinguishes these humanitarian organizations from those with an allegiance to a party to the conflict such as national red cross societies 493 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 State’s military operations are subject to the consent of that State 494 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 495 For example members of impartial humanitarian organizations like other civilians may be removed from the vicinity of military objectives for their protection 496 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 497 For comparison the activities of the Protecting Power are also subject to the consent of the affected States 498 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 participation in hostilities 499 In addition to legitimate military considerations other 493 Refer to § 4 11 Authorized Staff of Voluntary Aid Societies 494 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 ” 495 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 496 Refer to § 5 14 2 Removing Civilians and Civilian Objects From the Vicinity of Military Objectives 497 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 ” 498 Refer to § 18 15 3 Activities of the Protecting Power 499 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 ” 177 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 500 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 the CCW Amended Mines Protocol on whose territory the functions are performed from the effects of mines booby-traps and other devices 501 4 26 3 Special Status of the ICRC The 1949 Geneva Conventions explicitly recognize the special position of the ICRC among impartial humanitarian organizations 502 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 503 The President has also recognized the role of the ICRC in visiting individuals detained in armed conflict 504 The United States has relied on the ICRC’s capacity particularly in conflict situations and has contributed substantially to the ICRC’s work 505 The United States has maintained a very constructive 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 500 Refer to § 9 5 3 Protection Against Insults and Public Curiosity 501 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 502 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 503 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 ” 504 Refer to § 8 10 4 ICRC Access to Detainees 505 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 confidence in the organization We look forward to supporting the ICRC in the future as we confront significant humanitarian need around the globe ” 178 Protecting Power during armed conflict 506 In addition the ICRC has performed the functions of the Central Information Agency for POWs and protected persons during international armed conflict 507 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 508 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 509 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 510 Parties to the GPW must provide identity cards to persons under their jurisdiction who are liable to become POWs 511 Similarly Parties to the GWS must provide retained personnel with a special identity card that denotes their status 512 Capturing units should not take these identity cards from POWs or retained personnel 513 In addition States should retain duplicate copies of identification cards that they issue 514 In contemporary 506 Refer to § 18 15 2 3 Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by Protecting Powers Under the 1949 Geneva Conventions 507 Refer to § 9 31 3 Central POW Information Agency § 10 31 3 Central Information Agency for Protected Persons 508 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 509 Refer to § 19 25 2005 ICRC Study on Customary International Humanitarian Law § 5 9 1 2 AP I Article 51 3 Provision on Direct Participation in Hostilities 510 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 ” 511 Refer to § 9 4 3 Issue of Identification Cards to Persons Liable to Become POWs 512 Refer to § 7 9 2 Use of Identification Card to Help Establish Retained Personnel Status 513 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 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 ” 514 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 ” 179 practice modern storage systems such as computer databases are used rather than storing duplicates of the issued identification cards 515 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 516 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 517 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 cases courts have undertaken to assess whether a detainee is entitled to POW status 518 but a 515 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 ” 516 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” 517 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 ” 518 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 180 “competent tribunal” generally entails the Detaining Power convening an administrative board 519 The GPW affords the Detaining Power substantial discretion regarding the composition and procedures of an Article 5 tribunal 520 Article 5 only requires a tribunal if there is “any doubt” regarding a person’s entitlement to POW status or treatment 521 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 522 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 523 For example DoD used administrative tribunals to address a variety of detainee issues during detention operations in Viet Nam 524 Panama 525 the Persian Gulf in 1991 526 Iraq in 2003 527 519 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 270 520 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 521 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 522 Refer to § 4 6 1 1 GPW 4A 2 Conditions Required on a Group Basis 523 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 ” 524 In Viet Nam the U S Army used panels of three officers assisted by a judge advocate advisor to assess the status of detainees See e g U S MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 381-46 Military Intelligence Combined Screening of Detainees Dec 27 1967 U S MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 205 Prisoners of War -- Determination of Eligibility Mar 15 1968 Fred K Green The Concept of “War” and the 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 20-5 525 See FRED BORCH JUDGE ADVOCATES IN COMBAT 103-06 2001 describing detainee screening procedures in 1989-1990 Operation JUST CAUSE in Panama 526 See FINAL REPORT ON THE PERSIAN GULF WAR 577-78 describing article 5 tribunals during Operation DESERT STORM 527 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 181 Afghanistan 528 and Guantanamo 529 528 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 529 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 182 V – The Conduct of Hostilities Chapter Contents 5 1 Introduction 5 2 Principles for the Conduct of Hostilities 5 3 Overview of Rules for the Protection of Civilians 5 4 Assessing Information Under the Law of War 5 5 Rules on Conducting Assaults Bombardments and Other Attacks 5 6 Discrimination in Conducting Attacks 5 7 Military Objectives 5 8 Combatants 5 9 Civilians Taking a Direct Part in Hostilities 5 10 Persons Placed Hors de Combat 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 5 12 Proportionality in Conducting Attacks 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 183 This Chapter however does not address all rules related to the conduct of hostilities For example rules on weapons are addressed in Chapter VI In addition later chapters address the 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 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 2 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 3 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 4 5 1 2 Adherence to Law of War Obligations in the Conduct of Hostilities During Military Operations The law of war rules in the conduct of hostilities have been implemented during military operations through rules of engagement and other military orders U S practice and the conduct of U S military operations often exceed the requirements of the law of war For example military commanders often seek to reduce the risk of civilian 2 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 ” 3 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 ” 4 Refer to § 6 16 2 Prohibition on Use of Riot Control Agents as a Method of Warfare 184 casualties by taking additional precautions even when such measures are not required by the law of war Similarly there are cases in which for military or policy reasons an attack is not conducted even though the attack would be legally permissible 5 Although the law of war creates international obligations regarding the conduct of hostilities that apply to the parties to a conflict responsibility for implementing certain international obligations would only apply to those persons belonging to the party’s forces with the domestic authority to make the decisions necessary to implement those obligations 6 For example a pilot would be entitled to rely on the determination by headquarters that a given target is in fact a military objective 7 5 2 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 8 Moreover where no specific rule applies law of war principles provide a general guide for conduct during war including the conduct of hostilities 9 5 3 OVERVIEW OF RULES FOR THE PROTECTION OF CIVILIANS The protection of civilians 10 against the harmful effects of hostilities is one of the main purposes of the law of war 11 Many of the rules for the protection of civilians are derived from the principles of distinction and proportionality 12 Specific rules for the protection of civilians 5 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 ” 6 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 ” 7 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 … ” 8 Refer to § 2 1 2 1 Law of War Principles as an Aid in Interpreting and Applying Law of War Rules 9 Refer to § 2 1 2 2 Law of War Principles as a General Guide 10 Refer to § 4 8 1 5 General Usage of “Civilian” in This Manual 11 Refer to § 1 3 4 Purposes of the Law of War 12 Refer to § 2 5 Distinction § 2 4 Proportionality 185 may be grouped into two categories 1 essentially negative duties to respect civilians and to refrain from directing military operations against them 2 affirmative duties to take feasible precautions to protect civilians and other protected persons and objects 5 3 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 13 The party controlling the civilian population generally has the greater opportunity to minimize risk to civilians 14 Civilians also may share in the responsibility to take precautions for their own protection 15 5 3 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 16 In particular 13 See J Fred Buzhardt DoD General Counsel 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 ” 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 ” 14 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 ” 15 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 ” 16 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 186 • Civilians must not be made the object of attack 17 • Military objectives may not be attacked when the expected incidental loss of life and injury to civilians or damage to civilian objects would be excessive in relation to the concrete and direct military advantage expected to be gained 18 • Civilians must not be used as shields or as hostages 19 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 20 5 3 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 21 • temporarily detaining civilians for reasons of mission accomplishment self-defense or for their own safety 22 civilian objects and military objectives and accordingly shall direct their operations only against military objectives ” 17 Refer to § 5 6 2 Persons Objects and Locations That Are Protected From Being Made the Object of Attack 18 Refer to § 5 12 Proportionality in Conducting Attacks 19 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 20 Refer to § 10 5 3 2 Collective Penalties and Measures of Intimidation or Terrorism 21 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 22 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 187 • collecting intelligence from civilians including interrogating civilians 23 • restricting the movement of civilians or directing their movement away from military operations for their own protection 24 or • seeking to influence enemy civilians with propaganda 25 5 3 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 26 5 3 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 27 Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken when planning and conducting attacks 28 Feasible precautions should be taken to mitigate the burden on civilians when seizing or destroying enemy property 29 It is specifically provided that 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 ” 23 Refer to § 5 26 2 Information Gathering 24 Refer to § 5 14 2 Removing Civilians and Civilian Objects From the Vicinity of Military Objectives 25 Refer to § 5 26 1 2 Propaganda Generally Permissible 26 Refer to § 17 5 2 1 Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect Them 27 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 the 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 28 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 29 Refer to § 5 17 5 Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians 188 feasible precautions must be taken in connection with certain types of weapons 30 Feasible precautions to reduce the risk of harm to civilians must also be taken by the party subject to attack 31 5 3 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 ” 32 “reasonable ” 33 “due ” 34 and “necessary” 35 have been used to describe this obligation 5 3 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 36 A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited 37 30 Refer to § 5 3 3 3 Requirements to Take Precautions Regarding Specific Weapons 31 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 32 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 ” 33 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 ” 34 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 ” 35 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 the 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 ” 36 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 189 Feasible precautions are those that are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military considerations 38 These circumstances may include • the effect of taking the precaution on mission accomplishment • 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 resources or money or • whether taking the precaution forecloses alternative courses of action 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 ” 37 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 ” 38 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 ” 190 For example if a commander determines that taking a precaution would result in operational risk i e a risk of failing to accomplish the mission or an increased risk of harm to their own forces then the precaution would not be feasible and would not be required 39 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 civilians are not present 40 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 41 Since what precautions are feasible depends greatly on the context and other military considerations 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 42 Nonetheless military commanders must make reasonable efforts to reduce the risk of harm to civilians and civilian objects 5 3 3 3 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 43 • incendiary weapons 44 • laser systems 45 and • explosive ordnance 46 39 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 ” 40 Refer to § 5 11 1 Effective Advance Warning Before an Attack That May Affect the Civilian Population 41 Refer to § 5 14 4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such 42 Refer to § 5 11 3 Selecting Weapons Weaponeering 43 Refer to § 6 12 5 3 Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines Booby-Traps and Other Devices 44 Refer to § 6 14 3 Restrictions on the Use of Incendiary Weapons 45 Refer to § 6 15 2 Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent Blindness 46 Refer to § 6 19 2 Using Explosive Ordnance § 6 19 3 Abandoning Explosive Ordnance 191 5 3 3 4 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 ” 47 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 4 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 48 5 4 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 facts very difficult 49 For example combatants must make decisions while enemy forces are attempting to attack them 50 and while enemy forces are seeking to deceive them 51 In addition the importance of prevailing during armed conflict 52 often justifies taking actions based upon limited information that would be considered unreasonable outside armed conflict 53 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 4 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 47 AP I art 57 1 48 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 ” 49 Refer to § 1 4 2 2 Nature of War – Limited and Unreliable Information – “Fog of War” 50 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 ” 51 Refer to § 5 25 Ruses of War and Other Lawful Deceptions 52 Refer to § 1 4 1 Object of War 53 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 ” 192 or executing military action must be made in good faith and based on their assessment of the information available to them at the time 54 A large number of States have recognized this principle 55 This principle has also been reflected in the decisions of courts assessing individual responsibility under the law of war which have declined to second-guess military decisions with the benefit of hindsight 56 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 54 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 ” 55 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 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 ” 56 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 ” 193 5 5 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 5 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 57 In the former case it is often said that protected persons and objects are protected “as such ” 58 from “direct attack ” 59 from “intentional attack ” 60 “from attack directed exclusively against them ” 61 or from being made the “object of attack ” 62 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 ” 63 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 57 See e g United States v Ohlendorf et al The Einsatzgruppen Case IV TRIALS OF WAR CRIMINALS BEFORE 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 ” THE NMT 411 58 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 59 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 60 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 ” 61 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 62 AP I art 51 2 “The civilian population as such as well as individual civilians shall not be the object of attack ” emphasis added 63 AP I art 52 2 194 objectives 64 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 65 5 5 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 • Combatants may make military objectives the object of attack but may not direct attacks against civilians civilian objects or other protected persons and objects 66 • 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 67 • Combatants must take feasible precautions in conducting attacks to reduce the risk of harm to civilians and other protected persons and objects 68 • In conducting attacks combatants must assess in good faith the information that is available to them 69 • Combatants may not kill or wound the enemy by resort to perfidy 70 • Specific rules apply to the use of certain types of weapons 71 64 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 ” 65 Refer to § 5 12 Proportionality in Conducting Attacks 66 Refer to § 5 6 Discrimination in Conducting Attacks 67 Refer to § 5 12 Proportionality in Conducting Attacks 68 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 69 Refer to § 5 5 3 Assessing Information in Conducting Attacks 70 Refer to § 5 22 Treachery or Perfidy Used to Kill or Wound 71 Refer to § 6 5 1 Certain Types of Weapons With Specific Rules on Use 195 5 5 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 72 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 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 73 For example in a long-distance attack a commander may rely on information obtained from aerial reconnaissance and intelligence units in determining whether to conduct an attack 74 5 5 3 1 Heightened Identification Requirements in Conducting Attacks Although doing so would exceed 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 75 72 Refer to § 5 4 Assessing Information Under the Law of War 73 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 ” 74 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 ” 75 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 ” 196 5 5 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 ” 76 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 acting based on the information available to him or her in doubtful cases 77 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 78 Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects 79 For example unprivileged belligerents may seek to take advantage of a legal presumption of civilian status 80 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 76 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 ” 77 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” 78 Refer to § 1 4 2 2 Nature of War – Limited and Unreliable Information – “Fog of War” 79 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 ” 80 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 ” 197 In applying its 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 its text would suggest 81 5 5 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 82 Moreover in some cases a party to a conflict may attempt to use the presence or movement of the civilian population or individual civilians in order to shield military objectives from seizure or attack 83 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 84 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 85 5 5 5 Permissible Location of Attacks In general attacks may be conducted against military objectives wherever located outside neutral territory 86 Attacks however may not be conducted in special zones established by agreement between the belligerents such as hospital safety or neutralized zones 87 81 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 ” 82 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 83 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 84 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 ” 85 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 ” 86 Refer to § 15 3 1 2 Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of Neutrality 87 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 198 Attacks on military objectives in the enemy rear or diversionary attacks away from the current theaters or zones of active military operations are lawful 88 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 89 There are many examples of lawful attacks taking place far from where the fighting was previously taking place 90 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 5 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 91 For example the principle of military necessity does not require that only the minimum force that is actually necessary in a specific situation 88 Refer to § 5 7 7 3 Definite Military Advantage 89 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 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 ” 90 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 91 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 DoD General Counsel 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 ” 199 may be used against military objectives 92 Instead the broader imperatives of winning the war may be considered and overwhelming force may be used against enemy military objectives 93 In addition combatants need not offer opponents an opportunity to surrender before carrying out an attack 94 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 5 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 95 There is no requirement that an enemy combatant must be warned before being attacked 96 Rather warning requirements only apply with respect to the civilian population 97 5 5 6 2 Attacks on Retreating Forces Enemy combatants remain liable to attack when retreating 98 Retreat is not the same as surrender Retreating forces remain dangerous as 92 Refer to § 2 2 3 1 Consideration of the Broader Imperatives of Winning the War 93 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 ” 94 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 ” 95 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 ” 96 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 ” 97 Refer to § 5 11 1 2 That May Affect the Civilian Population 98 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 200 the enemy force may recover to counterattack consolidate a new defensive position or assist the war effort in other ways 99 Retreat may also be a ruse 100 Retreating enemy combatants may 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 5 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 101 5 5 6 4 Attacks on Specific Individuals Military operations may be directed against specific enemy combatants 102 U S forces have often conducted such operations 103 consolidated an attacking force is trained to fire upon the retreating enemy to discourage or prevent a counterattack ” 99 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 … ” 100 Refer to § 5 25 2 Examples of Ruses 101 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 ” 102 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 ” 103 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 201 5 5 7 Prohibition Against Declaring That No Quarter Be Given It is forbidden to declare that no quarter will be given 104 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 executed 105 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 106 This rule is based on both humanitarian and military considerations 107 This rule also applies during non-international armed conflict 108 5 5 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 109 For example militia and volunteer corps must wear fixed distinctive insignia including when they are conducting attacks 110 In addition combatants may not kill or wound by resort to perfidy 111 Combatants may not fight in the enemy’s uniform 112 Lastly persons engaging in spying or sabotage risk additional penalties under the domestic law of enemy States 113 5 5 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 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” 104 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 ” 105 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 ” 106 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 ” 107 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 ” 108 Refer to § 17 6 1 Prohibition on Declaring That No Quarter Be Given 109 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 ” 110 Refer to § 4 6 4 Having a Fixed Distinctive Sign Recognizable at a Distance 111 Refer to § 5 22 Treachery or Perfidy Used to Kill or Wound 112 Refer to § 5 23 Use of Enemy Flags Insignia and Military Uniforms 113 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 202 as a surprise attack by enemy forces when military personnel are unable to dress in their uniforms before resisting the enemy’s assault 114 Military personnel not in uniform may resist an attack so long as they are not wearing the enemy’s uniform and do not kill or wound treacherously 115 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 116 5 5 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 ” 117 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 118 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 6 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 119 5 6 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 120 114 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 ” 115 Refer to § 5 23 Use of Enemy Flags Insignia and Military Uniforms § 5 22 Treachery or Perfidy Used to Kill or Wound 116 Refer to § 5 14 5 Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to Distinguish Themselves From the Civilian Population 117 AP I art 44 3 118 Refer to § 4 6 1 1 GPW 4A 2 Conditions Required on a Group Basis 119 Refer to § 2 5 2 Discriminating in Conducting Attacks Against the Enemy 203 5 6 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 o individual civilians and the civilian population 121 o military medical and religious personnel including military medical units 122 o combatants placed hors de combat 123 and o parlementaires 124 and • Objects and locations provided they are not military objectives such as o military medical transport facilities and equipment 125 o cultural property 126 o historic monuments museums scientific artistic educational and cultural institutions 127 o places of worship o undefended villages towns or cities 128 o hospital and safety zones and persons and objects within these zones 129 and 120 Refer to § 5 7 Military Objectives 121 Refer to § 4 8 2 Civilians – Conduct of Hostilities 122 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 123 Refer to § 5 10 Persons Placed Hors de Combat 124 Refer to § 12 5 4 Rights of Inviolability of the Parlementaire 125 Refer to § 7 10 Military Medical Units and Facilities 126 Refer to § 5 18 Protection of Cultural Property During Hostilities 127 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 ” 128 Refer to § 5 15 Undefended Cities Towns and Villages 129 Refer to § 5 14 3 1 Civilian Hospital and Safety Zones and Localities 204 o neutralized zones and persons and objects within neutralized zones 130 5 7 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 whether they meet the definition of “military objective ” 5 7 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 131 5 7 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 132 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 133 5 7 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 134 If an object is a military 130 Refer to § 5 14 3 3 Neutralized Zones 131 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 ” 132 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 … ” 133 Refer to § 5 7 2 Persons Who Are Military Objectives 134 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 ” 205 objective it is not a civilian object and may be made the object of attack 135 However it will be appropriate to consider in a proportionality analysis the harm to the civilian population resulting from the destruction of such a military objective 136 5 7 2 Persons Who Are Military Objectives Certain classes of persons are military objectives and may be made the object of attack 137 These classes of persons include • combatants such as military ground air and naval units or unprivileged belligerents 138 and • civilians taking a direct part in hostilities 139 However the following classes of persons are not military objectives • military medical and religious personnel unless they commit acts harmful to the enemy 140 • military medical units unless they have forfeited their protected status 141 • combatants placed hors de combat 142 and • parlementaires 143 5 7 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 ” 144 135 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 ” 136 Refer to § 5 12 Proportionality in Conducting Attacks 137 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 … ” 138 Refer to § 5 8 Combatants 139 Refer to § 5 9 Civilians Taking a Direct Part in Hostilities 140 Refer to § 7 8 3 Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack 141 Refer to § 7 10 3 Loss of Protection of Military Medical Units and Facilities From Being Made the Object of Attack 142 Refer to § 5 10 Persons Placed Hors de Combat 143 Refer to § 12 5 4 Rights of Inviolability of the Parlementaire 144 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 206 This definition of military objective may be viewed as a way of evaluating whether military necessity exists to attack an object 145 It may also be applied outside the context of conducting attacks to assess whether the seizure or destruction of an object is justified by military necessity 146 5 7 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 7 5 Definition of Military Objective for Objects A Two-Part Test 5 7 4 1 Military Equipment and Bases First certain objects belonging to the armed forces and used in military operations are recognized as military objectives 147 This includes • Military ground air and naval equipment other than identifiable medical equipment or transport 148 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 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 ” 145 Refer to § 2 2 Military Necessity 146 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 147 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 ” 148 For devices to facilitate identification of military medical units transport and equipment refer to § 7 15 Display of the Distinctive Emblem to Facilitate Identification 207 o intelligence facilities 5 7 4 2 Objects Containing Military Objectives Second objects that contain military objectives are military objectives 149 For example • 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 150 5 7 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 the object in the circumstances offers a definite military advantage 151 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 However 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 152 These broader aspects of “military advantage” may also be relevant in evaluating an attack under the proportionality rule 153 The following discussion elaborates upon the definition of military objective 149 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 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 150 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 ” 151 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 ” 152 Refer to § 5 7 7 3 Definite Military Advantage 153 Refer to § 5 12 5 “Concrete and Direct Military Advantage Expected to Be Gained” 208 5 7 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 7 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 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 154 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 155 “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 156 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 157 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 158 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 154 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 7 4 Objects Categorically Recognized as Military Objectives 155 Refer to § 5 7 8 4 Examples of Military Objectives – Places of Military Significance 156 Refer to § 5 7 4 2 Objects Containing Military Objectives 157 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 ” 158 Refer to § 5 7 8 3 Examples of Military Objectives – Transportation Objects 209 contribution to the enemy’s military action even though they are not being used at that moment for such purposes 5 7 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 ” 159 For example an object might make an effective but 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 160 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 161 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 162 5 7 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 ” 159 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” 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 ” 160 ROGERS LAW ON THE BATTLEFIELD 36 “The term military action appears to have a wide meaning equating to the general prosecution of the war ” 161 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 162 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 210 5 7 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 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 163 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 164 5 7 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 165 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 166 5 7 7 3 Definite Military Advantage “Definite” means a concrete and perceptible military advantage rather than one that is merely hypothetical or speculative 167 The advantage need not be immediate 168 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 163 Refer to § 5 7 8 4 Examples of Military Objectives – Places of Military Significance 164 Refer to § 5 7 8 4 Examples of Military Objectives – Places of Military Significance 165 Refer to § 5 7 6 1 Nature Location Purpose or Use 166 Refer to § 5 7 7 3 Definite Military Advantage 167 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 168 See J Fred Buzhardt DoD General Counsel 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 ” 211 “Military advantage” refers to the advantage anticipated from an attack when considered as a whole and not only from its isolated or particular parts 169 Similarly “military advantage” is not restricted to immediate tactical gains but may be assessed in the full context of the war strategy 170 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 broader than only 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 the enemy’s resources and attention 171 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 172 Diminishing the morale of the civilian population and their support for the war effort does not provide a definite military advantage 173 However attacks that are otherwise lawful are not rendered unlawful if they happen to result in diminished civilian morale 174 169 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 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 ” 170 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 ” 171 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 ” 172 Refer to § 5 5 6 3 Harassing Fires 173 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 212 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 7 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 7 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 175 In some cases enemy leaders themselves may be made the object of attack 176 5 7 8 2 Examples of Military Objectives – Communications Objects Communications objects such as facilities networks and equipment that could be used for of spreading terror and shattering the morale of the population at large—though this was the inevitable concomitant 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 ” 174 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 3 2 Essentially Negative Duties to Respect Civilians and to Refrain From Directing Military Operations Against Them 175 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 ” 176 Refer to § 5 8 4 Leaders 213 command and control of military operations or intelligence gathering have often been regarded as military objectives 177 5 7 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 178 5 7 8 4 Examples of Military Objectives – Places of Military Significance Areas of land that are militarily significant may constitute military objectives 179 For example anti- 177 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 ” 178 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 ” 179 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 … ” 214 tank mines may be laid on such areas in order to block enemy forces’ tanks 180 Areas of land that have been regarded as military objectives have included for example • road networks 181 • known or suspected enemy avenues of approach or withdrawal • mountain passes hills defiles and bridgeheads 182 and • villages towns or cities whose seizure is militarily important 183 5 7 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 184 180 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 ” 181 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 ” 182 ROGERS LAW ON THE BATTLEFIELD 37 183 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 ” 184 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 215 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 185 5 8 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 8 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 186 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 187 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 188 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 ” 185 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 ” 186 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 ” 187 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 188 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 216 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 189 5 8 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 190 5 8 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 191 • members of militia and volunteer corps 192 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 189 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 ” 190 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 ” 191 Refer to § 4 5 Armed Forces of a State 192 Refer to § 4 6 Other Militia and Volunteer Corps 217 • participants in a levée en masse 193 • persons belonging to non-State armed groups 194 and • leaders whose responsibilities include the operational command and control of the armed forces or of a non-State armed group 195 5 8 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 196 5 8 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 197 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 193 Refer to § 4 7 Levée en Masse 194 Refer to § 5 8 3 Persons Belonging to Non-State Armed Groups 195 Refer to § 5 8 4 Leaders 196 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 ” 197 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 ’” 218 • 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 198 • accessing facilities such as safehouses training camps or bases used by the group that outsiders would not be permitted to access 199 • traveling along specific clandestine routes used by those groups 200 or • traveling with members of the group in remote locations or while the group conducts operations 201 5 8 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 198 Refer to § 5 9 3 “Taking a Direct Part in in Hostilities” 199 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 ” 200 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” 201 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 ” 219 international armed conflict 202 Such groups might lack a formal distinction between those members and non-members who nonetheless participate in the hostile activities of the group 203 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 204 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 205 • taking a direct part in hostilities on behalf of the group on a sufficiently frequent or intensive basis 206 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 8 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 207 202 Refer to § 4 6 3 Being Commanded by a Person Responsible for His or Her Subordinates 203 Compare § 4 7 Levée en Masse 204 Compare § 5 9 3 2 Examples of Acts Not Considered Taking a Direct in Hostilities 205 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 206 Refer to § 5 9 3 “Taking a Direct Part in in Hostilities” 220 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 208 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 209 5 8 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 210 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 211 Planning or authorizing a combat operation is an example of taking a direct part in hostilities 212 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 207 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 “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 ” 208 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 10 3 Persons Who Have Surrendered 209 Refer to § 5 9 4 2 No “Revolving Door” Protection § 5 9 4 1 Permanently Ceased Participation in Hostilities 210 Refer to § 5 5 6 4 Attacks on Specific Individuals 211 Refer to § 5 9 3 “Taking a Direct Part in in Hostilities” 212 Refer to § 5 9 3 1 Examples of Taking a Direct Part in Hostilities 221 5 9 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 9 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 9 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 ” 213 In addition AP I uses the phrase “direct part in hostilities” to address other situations apart from the protection of civilians 214 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 215 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 ” 216 Because the English and French language versions 213 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 ” 214 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 … ” 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 ” 215 216 GC art 3 973 UNTS 289 “ne participant pas directement aux hostilitiés” 222 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 ” 217 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 9 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 218 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 219 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 9 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 8 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 217 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 218 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 ” 219 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 ” 223 • members of the civilian population 220 • persons authorized to accompany the armed forces 221 and • members of the merchant marine and civil aircraft of parties to a conflict 222 5 9 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 223 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 224 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 9 3 “Taking a Direct Part in in Hostilities” Unlike the treaty definition of “military objective” for objects 225 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 226 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 220 Refer to § 4 8 1 5 General Usage of “Civilian” in This Manual 221 Refer to § 4 15 Persons Authorized to Accompany the Armed Forces 222 Refer to § 4 16 Crews of Merchant Marine Vessels or Civil Aircraft 223 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 ” 224 Refer to § 5 8 3 Persons Belonging to Non-State Armed Groups 225 Refer to § 5 7 3 Objects That Are Military Objectives 226 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 ” 224 conduct or sustain combat operations 227 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 228 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 229 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 230 The following considerations may be relevant 231 227 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 ” 228 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 ” 229 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 ” 230 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 231 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 225 • 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 232 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 relevance of geographic and temporal proximity of an individual's actions to particular hostile acts in ongoing hostilities ” 232 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 ” 226 o whether the act is traditionally performed by military forces in conducting military operations against the enemy including combat combat support and combat service support functions 233 or o whether the activity involves making decisions on the conduct of hostilities such as determining the use or application of combat power 5 9 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 234 such as o defending military objectives against enemy attack e g manning an antiaircraft gun acting as a bodyguard for an enemy combatant 235 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 236 233 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 ” 234 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 ” 235 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 ” 236 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 227 • 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 237 and o acting as a guide or lookout for combatants conducting military operations 238 • 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 239 such as o delivering ammunition to the front lines or o outfitting and preparing a suicide bomber to conduct an attack 5 9 3 2 Examples of Acts Not Considered Taking a Direct 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 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 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 ” 237 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 ” 238 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 … ” 239 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 ’” 228 • police services e g police officers who maintain public order against common criminals during armed conflict 240 • independent journalism or public advocacy e g opinion journalists who write columns supporting or criticizing a State’s war effort 241 • 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 242 or • providing medical care or impartial humanitarian assistance 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 9 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 243 In some cases hostile acts or demonstrated hostile intent may also constitute taking a 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 240 Refer to § 4 23 1 Police as Civilians 241 Refer to § 4 24 2 Other Journalists 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 ” 242 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 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives 243 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 ” 229 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 9 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 244 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 245 5 9 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 246 The assessment of whether a person 244 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 ” 245 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 ” 246 Refer to § 2 3 Humanity 230 has permanently ceased participation in hostilities must be based on a good faith assessment of the available information 247 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 248 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 249 5 9 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 250 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 251 247 Refer to § 5 4 Assessing Information Under the Law of War 248 Refer to § 5 9 3 1 Examples of Taking a Direct Part in Hostilities 249 Refer to § 4 18 Private Persons Who Engage in Hostilities 250 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 ” 251 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 231 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 252 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 253 Adoption of such a rule would risk diminishing the protection of the civilian population 5 9 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 254 5 10 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 10 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 ” 252 Refer to § 5 8 1 Armed Forces and Groups and Liability to Being Made the Object of Attack 253 Refer to § 4 18 3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status 254 Refer to § 4 8 3 Civilians – Detention § 4 4 2 Combatants – POW Status During Detention 232 Hors de combat is used in Common Article 3 of the 1949 Geneva Conventions 255 and has been defined in Article 41 of AP I 256 5 10 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 257 5 10 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 258 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 259 5 10 3 1 Genuine The offer to surrender must be genuine In addition to being legally ineffective feigning the intent to surrender can constitute perfidy 260 5 10 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 255 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 256 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 ” 257 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 ” 258 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 ” 259 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 ” 260 Refer to § 5 22 3 Examples of Killing or Wounding by Resort to Perfidy 233 preparing to fire a weapon or engage in combat is often a sign of surrender Waving a white flag technically is not a sign of surrender but signals a desire to negotiate 261 The surrender must be “at discretion ” i e unconditional 262 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 10 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 263 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 264 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 265 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 266 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 267 261 Refer to § 12 4 The White Flag of Truce to Initiate Negotiations 262 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 263 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 ” 264 Refer to § 5 15 3 1 Open for Immediate Physical Occupation 265 Refer to § 14 9 3 2 Feasibility of Air Units to Accept the Surrender of Ground Forces 266 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 ” 267 Refer to § 9 5 2 1 Prohibition on Killing of POWs 234 5 10 4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds Sickness 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 268 Those “rendered unconscious” does not include persons who simply fall asleep Sleeping combatants generally may be made the object of attack 269 Shipwrecked combatants include those who have been shipwrecked from any cause and includes forced landings at sea by or from aircraft 270 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 271 In order to receive protection as hors de combat the person must be wholly disabled from fighting 272 On the other hand many combatants suffer from wounds and sickness but nonetheless continue to fight and would not be protected 273 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 268 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 ” 269 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 270 Refer to § 7 3 1 2 Shipwrecked 271 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 ” 272 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 ” 273 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 ” 235 to fight 274 If possible those seeking protection as wounded sick or shipwrecked should make their condition clear 275 5 10 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 276 This protection is provided because a person descending by parachute is temporarily hors de combat just like someone who is shipwrecked 277 or unconscious 278 5 10 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 10 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 274 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 ” 275 Compare § 5 10 3 2 Clear and Unconditional 276 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 ” 277 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 ” 278 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 ” 236 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 5 11 FEASIBLE PRECAUTIONS IN CONDUCTING ATTACKS TO REDUCE THE RISK OF HARM TO PROTECTED PERSONS AND OBJECTS Combatants must take feasible precautions in conducting attacks to reduce the risk of harm to civilians and other protected persons and objects 279 As discussed above what precautions are feasible depend greatly on the context including operational considerations 280 Feasible precautions in conducting attacks may include the following 5 11 1 Effective Advance Warning Before an Attack That May Affect the Civilian Population Effective advance warning must be given of an attack that may affect the civilian population unless circumstances do not permit 281 In addition warning requirements exist before certain medical units vessels or facilities forfeit their protection from being made the object of attack 279 See 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 ” 280 Refer to § 5 3 3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects 281 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 ” 237 • military medical units and facilities 282 • ground medical transports 283 • hospital ships and sick-bays in warships 284 • civilian hospitals 285 and • civilian hospital convoys 286 5 11 1 1 Effective Advance Warning There is no set form for warnings Warnings may be general communicated to the national leadership of the enemy State or delivered to the civilian population through military information support operations such as broadcast or leaflets advising the civilian population of risk of injury if they remain near military objectives Giving the specific time and place of an attack is not required 287 Warnings have been used by U S forces conducting bombardments in many conflicts such as World War II 288 the Korean War 289 the 2003 Iraq War 290 and the armed conflict against al-Qaida the Taliban and associated forces 291 282 Refer to § 7 10 3 2 Due Warning Before Cessation of Protection 283 Refer to § 7 11 1 Protection of Ground Medical Transports on the Same Basis as That of Medical Units 284 Refer to § 7 12 6 1 Due Warning Before Cessation of Protection 285 Refer to § 7 17 1 2 Due Warning Before Cessation of Protection 286 Refer to § 7 18 1 Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian Hospitals 287 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 ” 288 For example SPAIGHT AIR POWER AND WAR RIGHTS 242 “An hour and a half before the Skoda armament works at Pilsen in Czechoslovakia 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 ’” 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 ” 289 For example 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 SecretaryGeneral 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- 238 5 11 1 2 That May Affect the Civilian Population The purpose of warning is to facilitate the protection of the civilian population so that they can take measures to avoid the dangers inherent in military operations If the civilian population will not be affected then there is no obligation to provide a warning 292 5 11 1 3 Unless Circumstances Do Not Permit These circumstances include legitimate military reasons such as exploiting the element of surprise in order to provide for mission accomplishment and preserving the security of the attacking force 293 5 11 2 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 294 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 295 5 11 3 Selecting Weapons Weaponeering Depending on the circumstances the use of certain weapons rather than others may lower the risk of incidental harm while offering the same or superior military advantage in neutralizing or destroying a military objective 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 ” 290 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” 291 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’” 292 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 ” 293 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 ” 294 For example 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 ” 295 For example 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 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 ” 239 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 296 Similarly under certain circumstances it may be advantageous to use cluster munitions or precision-guided munitions to minimize the risk of incidental harm 297 As with other precautions the decision of which weapon to use will be subject to many practical considerations including effectiveness cost and the need to preserve capabilities for other engagements Thus there would be few if any instances in which the use of a particular weapon system such as precision-guided munitions or cyber tools 298 would be the only legally permissible weapon 299 5 11 4 Identifying Zones in Which Military Objectives Are More Likely to Be Present or Civilians Are Likely to Be Absent Identifying and designating zones in which military objectives are more likely to be present or civilians are likely to be absent may also reduce the risk of harm to civilians or other protected persons and objects For example attacks in areas in which civilians are present might be subject to greater restrictions 300 Similarly it may be possible to identify areas in which objects of the greatest 296 Refer to § 6 14 Incendiary Weapons 297 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 ” Refer to § 6 13 2 Use of Cluster Munitions to Reduce the Risk of Incidental Harm § 6 14 3 2 U S Reservation to CCW Protocol III on Incendiary Weapons 298 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 299 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 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 ” 300 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 240 military importance are located and to place additional restrictions on attacks conducted outside these areas in order to limit unnecessary destruction 301 5 11 5 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 ” 302 The United States has expressed the view that this rule is not a requirement of customary international law 303 5 12 PROPORTIONALITY IN CONDUCTING ATTACKS 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 304 This is commonly called the proportionality rule 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 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 ” 301 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 ” 302 AP I art 57 3 303 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 304 1956 FM 27-10 Change No 1 1976 ¶41 “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 241 5 12 1 General Notes on Applying the Proportionality Rule in Conducting Attacks In conducting attacks the proportionality rule only need be applied when civilians or civilian objects are at risk of harm from attacks on military objectives It would not apply when civilians or civilian objects are not at risk 305 5 12 2 Types of Harm – Loss of Life Injury and Damage The proportionality rule in conducting attacks addresses loss of life injury and damage to property Lesser forms of harm such as mere inconveniences or temporary losses need not be considered in applying the proportionality rule 306 5 12 2 1 Remote Harms Remote harms resulting from the attack do not need to be considered in a proportionality analysis For example the death of an enemy combatant might cause economic harm to his or her family or the destruction of a tank factory might cause economic harm in the form of lost jobs the attacker would not be required to consider such loss in applying the proportionality rule 307 Similarly the attacker would not be required to consider in the proportionality analysis the possibility that a munition might not detonate as intended and might injure civilians much later after the attack because the risk of such harm is too remote 308 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” 305 Refer to § 5 5 6 Force That May Be Applied Against Military Objectives 306 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 ” 307 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 ” 308 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 242 5 12 2 2 Harm Resulting From Enemy Action or Beyond the Control of Either Party Persons or objects harmed through action directly attributable to enemy action or beyond the control of either party would be excluded from the attacking force’s proportionality analysis For example civilians injured or killed by enemy air defense measures such as spent surface-to-air measures or antiaircraft projectiles would not be considered in the attacking force’s proportionality analysis 309 Similarly the risk that the attacking force’s munitions would be diverted from their intended target by legitimate deception activities of the opposing force such as jamming smoke or chaff would not need to be considered in the attacking force’s proportionality analysis 5 12 3 Harm to Certain Categories of Persons and Objects That is Understood Not to Prohibit Attacks Under the Proportionality Rule Harm to the following categories of persons and objects would be understood not to prohibit attacks under the proportionality rule 1 military objectives 2 certain categories of individuals who may be employed in or on military objectives and 3 human shields 5 12 3 1 Harm to Military Objectives Harm to military objectives including enemy combatants civilians taking a direct part in hostilities and military equipment need not be considered in a proportionality analysis For example an attack against an enemy combatant might also injure other enemy combatants who were not the specific targets of the attack Harm to these individuals or damage to military objectives would not need to be taken into account in applying the proportionality rule even if this harm was an unintended result of the attack 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives Harm to certain persons who may be employed in or on military objectives would be understood not to prohibit attacks under the proportionality rule These categories include • persons authorized to accompany the armed forces 310 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 ” 309 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 ” 310 Refer to § 4 15 2 3 Increased Risk of Incidental Harm 243 • parlementaires 311 and • civilians workers who place themselves in or on a military objective knowing that it is susceptible to attack such as workers in munitions factories 312 These persons are deemed to have assumed the risk of incidental harm from military operations Moreover the law of war accepts that the defender may employ these persons to support military operations near or within military objectives If these persons could have the effect of prohibiting attacks by the attacking force then the defending force that used such persons in proximity to its forces or military objectives would be unlawfully using the presence of such persons to shield its operations or its military objectives from attack 313 5 12 3 3 Harm to Human Shields Use of human shields violates the rule that civilians may not be used to shield favor or impede military operations 314 The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury provided that the attacker takes feasible precautions in conducting its attack 315 311 Refer to § 12 5 3 Duties and Liabilities of the Parlementaire 312 See 2007 NWP 1-14M ¶8 3 2 “The presence of civilian workers such as technical representatives aboard a warship or employees in a munitions factory in or on a military objective does not alter the status of the military objective These civilians may be excluded from the proportionality analysis ” BOTHE PARTSCH SOLF NEW RULES 303 AP I art 51 ¶2 4 2 2 During international armed conflict workers in defense plants or those engaged in distribution or storage of military supplies in rear areas “assume the risk of incidental injury as a result of attacks against their places of work or transport ” International Committee of the Red Cross Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War art 6 3 9 Sept 1956 “Nevertheless should members of the civilian population Article 11 notwithstanding be within or in close proximity to a military objective they must accept the risks resulting from an attack directed against that objective ” 313 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 314 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 315 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 cilivians 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 ” 244 If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force 316 5 12 4 “Excessive” Under the proportionality rule the potential attack against the military objective is prohibited only when the expected incidental harm is excessive compared to the military advantage to be gained The weighing or comparison between the expected incidental harm and the expected military advantage does not necessarily lend itself to empirical analyses 317 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 318 On the other hand a very significant military advantage would be necessary to justify the collateral death or injury to thousands of civilians 319 In less clear-cut cases the question of whether the expected incidental harm is excessive may be a highly open-ended legal inquiry and the answer may be subjective and imprecise 320 316 Refer to § 5 5 4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to Discriminate in Conducting Attacks 317 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 ” 318 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 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 ” 319 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 ” 320 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 245 5 12 5 “Concrete and Direct Military Advantage Expected to Be Gained” The expected military advantage gained from attacking a particular military objective must be “concrete and direct ” 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 ” 321 There is no requirement that the military advantage be “immediate ” However the military advantage may not be merely hypothetical or speculative Similarly “military advantage” is not restricted to immediate tactical gains but may be assessed in the full context of war strategy 322 The military advantage anticipated from an attack is intended to refer to an attack considered as a whole rather than only from isolated or particular parts of an attack 323 Military advantage may involve a variety of considerations including 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 attacking force and 3 diverting the enemy’s resources and attention 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 ” 321 Refer to § 5 7 7 3 Definite Military Advantage 322 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 ” 323 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 … ” 246 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 324 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 325 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 326 5 13 1 AP I Provisions on Works and Installations Containing Dangerous Forces Article 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 327 In ratifying AP I other States have taken reservations from this article 328 Insofar as Article 56 of AP I deviates from the 324 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 ” 325 Refer to § 5 6 Discrimination in Conducting Attacks § 5 12 Proportionality in Conducting Attacks 326 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 327 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 ” 247 regular application of the distinction and proportionality rules the U S view has been that it does not reflect customary international law applicable in international and non-international 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 329 In particular military commanders and other officials responsible for the safety of the civilian populations 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 above what precautions are feasible depends greatly on the context including operational considerations 330 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 331 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 328 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 ” 329 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 ” 330 Refer to § 5 3 3 2 What Precautions Are Feasible 331 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 ” 248 civilian population may be increased by placing military forces in densely populated areas to protect the civilian population from enemy attack and influence 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 332 In particular civilian hospitals should be situated as far as possible from military objectives 333 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 334 Voluntary removal of civilians may be accomplished through the use of warnings 335 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 toward 336 It also may be appropriate to conclude local agreements for the removal of civilians from besieged or encircled areas 337 During international armed conflict the forcible transfer or deportation of protected persons from occupied territory is prohibited 338 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 339 332 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 ” 333 Refer to § 7 17 3 Location of Civilian Hospitals 334 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 ” 335 Refer to § 5 11 1 Effective Advance Warning Before an Attack That May Affect the Civilian Population 336 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 337 Refer to § 5 19 2 Removal and Passage of Certain Personnel – Vulnerable Civilians Diplomatic and Consular Personnel the Wounded and Sick and Medical Personnel 338 Refer to § 11 12 3 Prohibition Against Forcible Transfers and Deportations 339 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 ” 249 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 340 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 341 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 342 The establishment of a zone only binds an adverse party when it agrees to recognize the zone 343 These zones and localities may be combined with hospital zones established for the wounded and sick of the armed forces 344 Protecting Powers and the ICRC may seek to facilitate the institution and recognition of civilian hospital and safety zones and localities 345 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 GWS 346 from the effects of war as well as 340 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 ” 341 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 ” 342 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 ” 343 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 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 ” 344 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 ” 345 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 ” 346 Refer to § 7 3 2 Persons Entitled to Protection as Wounded Sick or Shipwrecked Under the GWS and GWSSea 250 the personnel entrusted with the organization and administration of these zones and localities and with the care of the persons assembled within them 347 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 348 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 349 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 350 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 351 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 347 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 ” 348 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 ’” 349 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 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 ” 350 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 ” 351 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 ” 251 distinctive and visible signs For example it may be appropriate to identify civilian hospitals 352 or civilian air raid shelters in order to facilitate their protection during enemy bombardment 353 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 354 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 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 355 This requirement of armed forces to wear distinctive emblems has been understood as a requirement for the armed forces as a group 356 However it applies to some extent on an individual basis in the context of liability for spying or sabotage 357 The obligation of armed forces to distinguish themselves includes but is not limited to those times when they conduct attacks 358 However the requirement to wear distinctive emblems is not an absolute one even during combat 359 352 Refer to § 7 17 2 2 Markings of Civilian Hospitals With the Distinctive Emblem 353 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 ” 354 Refer to § 5 3 3 2 What Precautions Are Feasible 355 Refer to § 4 6 4 Having a Fixed Distinctive Sign Recognizable at a Distance § 4 6 5 Carrying Arms Openly 356 Refer to § 4 6 1 1 GPW 4A 2 Conditions Required on a Group Basis 357 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 358 Refer to § 5 5 8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks 359 Refer to § 5 5 8 1 Fighting Out of Uniform 252 5 15 UNDEFENDED CITIES TOWNS AND VILLAGES Attack by whatever means of a village town or city that is undefended is prohibited 360 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 361 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 362 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 363 In the French versions of the text both the Hague IV Regulations and Hague IX use a dependent clause “that 360 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 ” 361 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 ” 362 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 entire city was unnecessary although individual military targets in the city might be destroyed either before or after entry ” 363 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 ” 253 are not defended” in order to modify the list of places 364 Rather than a dependent clause AP I uses an adjective -- “non-defended” modifying the word “localities ” 365 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 366 It appears that these terms tend to be used interchangeably because both terms generally refer to a specific legal category of populated areas that are protected by the law of war from attack 367 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 368 364 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 365 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 366 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 ” 367 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 ” 368 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 ’” 254 5 15 3 Declaration of a City as “Undefended” An undefended city may be established through negotiations with opposing forces 369 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 370 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 371 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 372 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 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 373 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 374 369 Refer to § 5 15 5 Agreements to Establish Undefended Cities 370 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 ” 371 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 ” 372 Refer to § 5 10 3 3 Under Circumstances in Which It Is Feasible to Accept 373 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 ” 374 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 ” 255 Absent or until recognition military objectives in a city unilaterally designated as undefended remain subject to attack 375 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 376 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 377 Persons and objects within that city however may still receive other protections for civilians and civilian objects 378 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 379 However the presence of military medical personnel the wounded and sick and 375 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 ” 376 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 ” 377 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 ” 378 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 ” 379 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 ” 256 civilian police forces for the purpose of maintaining local law and order would not cause a city designated as undefended to lose that status 380 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 381 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 382 5 15 4 4 No Activities in Support of Military Operations No activities in support of military operations may be undertaken 383 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 384 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 385 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 380 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 381 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 ” 382 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 ” 383 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 ” 384 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 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 ” 385 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 ” 257 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 386 It may also be appropriate for agreements to specify 1 rules on marking the city and agreed signs 387 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 388 In such cases the city would lose its undefended status and for example military objectives within the city may be attacked 389 However if the occupying force acts in a manner consistent with the conditions necessary for the inhabited place to maintain undefended status 390 the place would remain undefended for the purpose of protecting it against military operations by all parties to the conflict 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 persons 391 or objects 1 to attempt to make certain points or areas immune from seizure or attack 2 to 392 386 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 ” 387 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 ” 388 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 ” 389 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 ” 390 Refer to § 5 15 4 Conditions Necessary for a Place to Maintain Undefended Status 391 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 ” 258 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 5 16 1 Protected Persons and Objects In particular the civilian population 393 protected persons under the GC 394 POWs 395 fixed medical establishments and medical units parlementaires and other persons protected by a flag of truce 396 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 assuming the risks inherent in supporting military operations Incidental harm to those individuals would be understood not to prohibit attacks under the proportionality rule and thus would not implicate this rule 397 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 398 This absolute duty 392 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 ” 393 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 ” 394 GC art 28 “The presence of a protected person may not be used to render certain points or areas immune from military operations ” 395 Refer to § 9 5 2 3 No Exposure to a Combat Zone or Use as a Human Shield 396 Refer to § 12 4 2 1 Prohibition on Improper Use of the Flag of Truce 397 Compare § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives 398 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 ” 259 to refrain from purposeful misconduct may be contrasted with the affirmative obligation that parties have to take feasible precautions to separate the civilian population 399 civilian internees 400 POWs 401 fixed medical establishments and medical units 402 and cultural property 403 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 404 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 evacuation of civilians for their own security or for imperative military reasons 405 In addition this rule must not be understood to alter the rules on spying and sabotage In other words this rule does not prohibit a spy from hiding among civilians in order to gather intelligence However the spy runs the risk of prosecution by the enemy State if he or she is discovered and captured while spying 5 16 3 Prohibition on Taking Hostages The taking of hostages is prohibited 406 This prohibition is understood to include a prohibition against threatening to harm detainees whose 399 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 400 Refer to § 10 11 1 1 Avoidance of Particularly Dangerous Areas 401 Refer to § 9 11 3 Location of POW Camps 402 Refer to § 7 10 2 Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives 403 Refer to § 5 18 3 Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or Damage 404 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 ” 405 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 ” 406 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 260 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 407 The taking of hostages is also prohibited in non-international armed conflict 408 5 16 4 Violations by Defenders Do Not Relieve Attackers of the Duty to Discriminate 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 409 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 410 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 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 ” 407 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” 408 Refer to § 17 6 2 Prohibition on the Taking of Hostages 409 Refer to § 5 5 4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to Discriminate in Conducting Attacks 410 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 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 ” 261 • 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 During occupation other rules relating to the treatment of enemy property apply 411 5 17 1 Definition of Enemy Property All property located in enemy territory is regarded as enemy property regardless of its ownership 412 5 17 2 Enemy Property – Military Necessity Standard Enemy property may not be seized or destroyed unless imperatively demanded by the necessities of war 413 In particular devastation or destruction may not be pursued as an end in itself 414 The measure of permissible seizure or destruction of enemy property is found in the strict necessities of war 415 There must be some reasonable connection between the seizure or destruction of the enemy property and the overcoming of enemy forces 416 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 417 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 411 Refer to § 11 18 Enemy Property During Occupation 412 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” 413 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 414 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 415 1956 FM 27-10 Change No 1 1976 ¶56 “The measure of permissible devastation is found in the strict necessities of war ” 416 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 ” 417 Refer to § 18 9 3 1 Acts Constituting Grave Breaches 262 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 418 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 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 418 • using enemy land for the construction of military bases air fields and other facilities to support military operations 419 • 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 420 • demolishing cutting down or removing enemy walls forests and buildings to clear a field of fire or to provide construction material 421 or • seizing means of transportation for use in military operations 422 Refer to § 5 7 5 Definition of Military Objective for Objects A Two-Part Test 419 1956 FM 27-10 Change No 1 1976 ¶56 “ R eal estate may be used for marches camp sites construction of field fortifications etc ” 420 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 ” 421 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 ” 422 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 263 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 423 For instance Union forces destroyed the Confederacy’s cotton during the Civil War in order to deprive the Confederacy of the ability to fund its military operations 424 Similarly coalition forces during Operation ENDURING FREEDOM destroyed narcotics in order to weaken the Taliban and al Qaeda’s ability to finance their operations 425 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 426 For example the movement of armed forces and equipment may damage roads or fields 427 423 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 7 6 2 Make an Effective Contribution to Military Action 424 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 425 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” 426 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 ” 427 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 264 5 17 3 Enemy Movable Property on the Battlefield War Booty Any enemy public movable property on the battlefield may be seized 428 Property is public if it belongs to the enemy State or an agency of that State 429 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 430 This includes arms ammunition military papers or property that can be used as military equipment e g as a means of transportation or communication 431 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 432 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 433 In particular receipts should be given and compensation paid when feasible 434 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 435 During international armed conflict personal property recovered from enemy dead 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 ” 428 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 ” 429 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 ” 430 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 ” 431 1958 UK MANUAL ¶615 “Private enemy property on the battlefield is not as it was in former times in every case booty Arms and ammunition and military equipment and papers are booty even if they are the property of individuals but cash jewellery and other private articles of value are not ” GREENSPAN MODERN LAW OF 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 ” 432 Refer to § 9 7 POW Effects and Articles of Personal Use 433 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 434 Refer to § 11 18 6 2 Seizure of Private Property Susceptible to Direct Military Use 435 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 265 becomes the property of the capturing State for the purpose of returning it to the next-of-kin of the deceased 436 The individual military member or person accompanying the armed forces who captures or finds enemy property acquires no title or claim 437 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 438 5 17 4 Pillage Prohibited Pillage is prohibited both in general 439 and specifically with respect to • the wounded sick shipwrecked and dead 440 • POWs 441 • protected persons under the GC 442 • persons in occupied territory 443 and in areas of non-international armed conflict 444 and 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 ” 436 Refer to § 7 7 2 2 Forwarding Valuable Articles Found on the Dead 437 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 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 ” 438 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 ” 439 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 ” 440 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 441 Refer to § 9 7 POW Effects and Articles of Personal Use 442 Refer to § 10 5 3 3 Pillage Against Protected Persons 443 Refer to § 11 18 1 Prohibition Against Pillage in Occupied Territory 444 Refer to § 17 6 4 Prohibition on Pillage 266 • cultural property 445 In certain cases there is an affirmative obligation to prohibit and prevent pillage 446 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 use 447 It does not include an appropriation of property justified by military necessity 448 For example if ordinary requisitions are unavailable the taking of food does not constitute pillage 449 Pillage also has been referred to as “looting” 450 and “plunder ” 451 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 452 For example a member 445 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 446 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 447 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” 448 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 ” 449 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 450 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 ” 451 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” 452 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 ” 267 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 453 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 the housing of wounded personnel awaiting evacuation provided in each case that a situation of emergency requires such use 454 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 455 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 456 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 457 If the armed forces take anything they should leave a note to this effect 458 However there is no obligation to protect abandoned property in the area of active operations 459 453 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 ” 454 Refer to § 11 18 6 4 Municipal Religious Charitable and Cultural Property 455 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 456 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 ” 457 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 ” 458 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 ” 459 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 … ” 268 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 460 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 close of hostilities to compensate the owners there may be evidence to assist the assessors 461 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 462 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 463 There are also obligations with respect to cultural property during occupation 464 and peacetime 465 Certain treaty obligations with respect to cultural property may only apply on the territory of Parties to the 1954 Hague Cultural Property Convention 466 but the United States has previously identified some of these obligations as customary international law 467 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 468 460 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 ” 461 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 ” 462 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 ” 463 Refer to § 17 11 Protection of Cultural Property in NIAC 464 Refer to § 11 19 Protection of Cultural Property During Occupation 465 Refer to § 5 18 2 1 Peacetime Obligations to Prepare for the Safeguarding of Cultural Property 466 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 ” 467 Refer to § 5 18 8 Special Protection for Certain Cultural Property 468 Refer to § 3 1 1 DoD Practice of Applying Law of War Rules Even When Not Technically Applicable 269 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 469 • movable or immovable property of great importance to the cultural heritage of every people 470 • buildings intended to shelter cultural property 471 and • centers containing monuments 472 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 ” 473 The Hague IV Regulations seek to protect “buildings dedicated to religion art science or charitable purposes historic monuments ” 474 Hague IX seeks to protect “sacred edifices buildings used for artistic scientific or charitable purposes and historic monuments ” 475 The Roerich Pact seeks to protect “historic monuments museums scientific artistic educational and cultural institutions ”476 AP I seeks to protect “historic monuments 469 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 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’ ” 470 Refer to § 5 18 1 2 Movable or Immovable Property of Great Importance to the Cultural Heritage of Every People 471 Refer to § 5 18 1 3 Buildings Intended to Preserve Cultural Property 472 Refer to § 5 18 1 4 Centers Containing Monuments 473 LIEBER CODE arts 34-36 474 HAGUE IV REG art 27 475 HAGUE IX art 5 476 ROERICH PACT art 1 270 works of art or places of worship which constitute the cultural or spiritual heritage of peoples ” 477 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 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 478 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 479 The question of whether cultural property is “of great importance to the cultural heritage of every people” may involve delicate and somewhat subjective judgments 480 Items that can easily be replaced would not qualify as being of great importance 481 On the other hand irreplaceable items may be of great cultural importance even if they have little monetary value 482 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 483 477 AP I art 53 478 Refer to § 19 17 1 Relationship Between the 1954 Hague Cultural Property Convention and Earlier Treaties 479 Refer to § 5 6 2 Persons Objects and Locations That Are Protected From Being Made the Object of Attack § 5 17 Seizure and Destruction of Enemy Property 480 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 ” 481 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 ” 482 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 483 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 271 • archaeological sites • groups of buildings that as a whole are of historical or artistic interest 484 • works of art • manuscripts books and other objects of artistic historical or archaeological interest • scientific collections 485 and • important collections of books or archives or of reproductions of the property defined above 486 Natural sites of great beauty are not included within the definition of cultural property 487 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 488 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 edifices remarkable for their archaeological historical or aesthetic interest or intended to commemorate a notable person action or event ” 484 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 property and that their gift to culture consisted mainly in distant mediaeval villages or lonely farms ” internal quotation marks omitted 485 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 ” 486 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 ” 487 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 ” 488 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 ” 272 and in fact contain conserve or exhibit movable cultural property as its primary purpose 489 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 490 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 491 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 492 Safeguarding consists of the affirmative acts that are to be taken to ensure the protection of cultural property 493 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 494 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 489 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 ” 490 Refer to § 5 18 8 Special Protection for Certain Cultural Property 491 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 ” 492 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 ” 493 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 ” 494 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 ” 273 consider appropriate 495 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 496 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 property 497 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 498 However such use is permissible when military necessity imperatively requires such use 499 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 500 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 501 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 502 There is no waiver of this obligation in cases of imperative military necessity 495 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 ” 496 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 ” 497 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 ” 498 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 … ” 499 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 ” 500 Compare § 5 18 8 2 Conditions for the Granting of Special Protection – No Use for Military Purposes 501 Refer to § 5 7 Military Objectives 502 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 274 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 503 This waiver of obligations with respect to cultural property is analogous to the requirement that enemy property may only be seized or destroyed if imperatively required by the necessities of war 504 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 505 Such precautions may include • determining the location of cultural property and disseminating that information among the armed forces 506 • compiling and promulgating lists of cultural property and areas that are not to be attacked 507 503 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 ” 504 Refer to § 5 17 2 Enemy Property – Military Necessity Standard For general discussion of military necessity refer to § 2 2 Military Necessity 505 Refer to § 5 3 3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects 506 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 ” 507 For example Strobe Talbot Letter of Submittal May 12 1998 MESSAGE FROM THE PRESIDENT TRANSMITTING “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 THE 1954 HAGUE CULTURAL PROPERTY CONVENTION VIII 1999 275 • establishing civil authorities to assume responsibility for planning and acting to ensure respect for cultural property under its control 508 • physically shielding cultural property from harm and • establishing refuges and evacuating movable cultural property to them 509 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 protection 510 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 511 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 512 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 513 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 514 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 ” 508 These include museum curators and staff local fire and law enforcement authorities and civil defense personnel 509 Refer to § 5 18 1 3 Buildings Intended to Preserve Cultural Property 510 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 ” 511 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 ” 512 Refer to footnote 503 in § 5 18 3 1 Imperative Military Necessity Waiver 513 Refer to § 5 17 2 Enemy Property – Military Necessity Standard For general discussion of military necessity refer to § 2 2 Military Necessity 514 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 276 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 515 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 516 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 analysis 517 and feasible precautions should be taken to reduce the risk of harm to the cultural property 518 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 519 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 520 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 515 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 ” 516 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 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 ” 517 Refer to § 5 12 Proportionality in Conducting Attacks 518 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 519 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 ” 520 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 ” 277 Pillage is prohibited more broadly 521 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 522 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 reasonable would also depend on the information available to the commander at the time 523 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 524 Other measures may include 1 issuing and enforcing orders to the same effect 525 2 investigating alleged or suspected offenses and taking disciplinary or punitive action as appropriate under U S law 526 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 527 521 Refer to § 5 17 4 Pillage Prohibited 522 Refer to § 5 18 4 Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property 523 Refer to § 5 4 Assessing Information Under the Law of War 524 Refer to § 18 6 Dissemination Study and Other Measures to Facilitate Understanding of Duties Under the Law of War 525 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 ” 526 Refer to § 18 19 Discipline in National Jurisdictions of Individuals for Violations of the Law of War 527 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 ” 278 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 528 5 18 7 Marking of Cultural Property With the Distinctive Emblem Cultural property may bear a distinctive emblem so as to facilitate its recognition 529 This distinctive emblem is described in Article 16 of the 1954 Hague Cultural Property Convention 530 There is a degree of discretion as to the placing of the distinctive emblem and its degree of visibility 531 The emblem may be displayed on flags or armlets and it may be painted on an object or represented in any other appropriate form 532 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 533 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 534 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 535 528 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 ” 529 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 ” 530 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 ” 531 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 ” 532 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 ” 533 Compare § 7 15 Display of the Distinctive Emblem to Facilitate Identification 534 Refer to § 5 18 1 Definition of Cultural Property 535 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 ” 279 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 536 • the personnel engaged in the protection of cultural property 537 and • the identity cards mentioned in the Regulations for the Execution of the 1954 Hague Cultural Property Convention 538 The distinctive emblem repeated three times may be used only as a means of identification of 539 • immovable cultural property under special protection 540 • the transport of cultural property under the special protection or in urgent cases 541 and • improvised refuges under the conditions provided for in the Regulations for the Execution of the 1954 Hague Cultural Property Convention 542 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 543 536 Refer to § 4 14 Personnel Engaged in Duties Related to the Protection of Cultural Property 537 Refer to § 4 14 Personnel Engaged in Duties Related to the Protection of Cultural Property 538 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 ” 539 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 ” 540 Refer to § 5 18 8 Special Protection for Certain Cultural Property 541 Refer to § 5 18 9 Transport of Cultural Property 542 Refer to § 5 18 8 Special Protection for Certain Cultural Property 543 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 ” 280 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 544 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 545 The standards governing the protection of such cultural property are essentially the same as the standards governing the protection of cultural property under customary law 546 and the protection afforded all cultural property under the 1954 Hague Cultural Property Convention 547 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 548 544 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 ” 545 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 ” 546 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 ” 547 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 ” 548 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 ” 281 • 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 549 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 550 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 551 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 549 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 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 ” 550 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 ” 551 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 7 Military Objectives 282 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 552 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 special protection whatever its location if it is so constructed that in all probability it will not be damaged by bombs 553 5 18 8 2 Conditions for the Granting of Special Protection – No Use for Military Purposes A “center containing monuments” 554 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 555 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 556 Such activities may fulfill the obligation to safeguard cultural property especially against looters 557 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 558 552 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 ” 553 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 ” 554 Refer to § 5 18 1 4 Centers Containing Monuments 555 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 ” 556 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 557 Refer to § 5 18 6 1 Obligation to Stop or Prevent Theft Pillage or Misappropriation of and Acts of Vandalism Against Cultural Property 558 Refer to § 7 10 3 5 Use of Weapons in Self-Defense or Defense of the Wounded and Sick 283 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 559 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 560 5 18 8 4 Withdrawal of Special Protection If a Party to 1954 Hague Cultural 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 561 Nevertheless whenever possible the latter Party shall first request the cessation of such violation within a reasonable time 562 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 563 Such necessity can be established only by an officer commanding a force the equivalent of a division in size or larger 564 However such necessity should not be construed to impose an unreasonable and disproportionate responsibility on the attacker to avoid damage to cultural property 565 Moreover all property may be attacked 559 Refer to § 5 18 7 2 Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times 560 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 ” 561 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 ” 562 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 ” 563 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 ” 564 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 ” 565 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 ” 284 using any lawful and proportionate means if required by military necessity and notwithstanding possible collateral damage to such property 566 Whenever circumstances permit the opposing Party shall be notified a reasonable time in advance of the decision to withdraw immunity 567 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 stating the reasons for withdrawing immunity 568 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 569 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 570 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 571 No acts of hostility may be directed against transport under special protection 572 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 566 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 ” 567 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 ” 568 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 ” 569 Refer to § 11 19 Protection of Cultural Property During Occupation 570 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 ” 571 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 ” 572 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 ” 285 location the intended destination the means of transport to be used the route to be followed and the date proposed for transfer 573 The Commissioner-General for Cultural Property determines whether such transfer is justified and notifies parties to the conflict concerned of the transfer 574 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 16 575 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 576 The transport of cultural property to the territory of another State is subject to additional rules 577 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 573 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 ” 574 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 ” 575 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 ” 576 Refer to § 5 18 7 2 Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times 577 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 ” 286 not already been made and refused 578 As far as possible notification of transfer should be made to the opposing Parties 579 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 580 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 581 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 582 Means of transport exclusively engaged in the transport of such property is similarly immune 583 However such immunity does not limit the right of visit and search of such transportation or property 584 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 ” 585 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 578 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 ” 579 1954 HAGUE CULTURAL PROPERTY CONVENTION art 13 1 “As far as possible notification of transfer should be made to the opposing Parties ” 580 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 ” 581 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 ” 582 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 ” 583 Compare § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 584 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 585 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 ” 287 special protection under Article 53 of AP I are substantially those that qualify for special protection under the 1954 Hague Cultural Property Convention 586 In addition protection is waived when an object is used in support of the military effort or for military purposes 587 In addition Canada has interpreted Article 53 to permit waiver of its obligations when military necessity imperatively requires such waiver 588 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 589 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 590 In particular it is permissible to seek to starve enemy forces into submission 591 586 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 ” 587 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 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 ” 588 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 ” 589 Refer to § 13 10 Blockade 590 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 ” 591 Refer to § 5 20 Starvation 288 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 592 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 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 593 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 594 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 595 5 19 3 Passage of Relief Consignments Commanders should make arrangements to permit the free passage of certain consignments 592 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 593 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 ” 594 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 ” 595 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 ” 289 • 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 596 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 • the control may not be effective or • a definite advantage may accrue to the military efforts or economy of the enemy 597 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 598 Commanders may prescribe other rules and regulations for how consignments are to be distributed although consignments should be forwarded as rapidly as possible 599 5 19 4 Attacks by Forces Laying Siege The general rules that apply to conducting attacks also apply to attacks by forces laying siege 600 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 601 596 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 ” 597 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 ” 598 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 ” 599 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 ” 600 Refer to § 5 5 Rules on Conducting Assaults Bombardments and Other Attacks 601 See e g United States v von Leeb et al The High Command Case XI TRIALS OF WAR CRIMINALS BEFORE was encircled and besieged Its defenders and the civilian population were in great THE NMT 563 “Leningrad 290 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 602 Permitting civilians to flee may also be militarily advantageous 603 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 604 For example it may be appropriate to mark protected buildings to indicate their protected status to enemy forces 605 Similarly it may be appropriate to concentrate the wounded and sick and civilians in areas remote from military objectives 606 or in areas neutralized by arrangement with the enemy 607 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 608 5 20 1 Starvation – Distinction It is a legitimate method of war to starve enemy forces For example it is permitted to destroy food intended as sustenance for enemy forces 609 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 ” 602 Refer to § 5 3 3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects 603 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 ” 604 Refer to § 5 14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 605 Refer to § 5 14 4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such 606 Refer to § 5 14 2 Removing Civilians and Civilian Objects From the Vicinity of Military Objectives 607 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 608 Refer to § 17 9 2 Prohibition on Starvation of Civilians as a Method of Combat 609 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 ” 291 with a view towards weakening them and diverting their resources 610 Enemy forces for the purpose of this rule means those persons constituting military objectives 611 Starvation specifically directed against the enemy civilian population however is prohibited 612 For example it would be prohibited to destroy food or water supplies for the purpose of denying sustenance to the civilian population 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 613 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 614 For example it may be appropriate to seek to compensate civilians whose food has been inadvertently destroyed 615 Moreover an Occupying 610 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 ’” 611 Refer to § 5 7 2 Persons Who Are Military Objectives 612 See J Fred Buzhardt DoD General Counsel 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 ” 613 Cf J Fred Buzhardt DoD General Counsel 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 ” 614 Refer to § 5 3 3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects 615 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 ” 292 Power would have additional duties to ensure food and water for the civilian population 616 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 617 Additionally starvation for example may involve sieges or encirclement blockades attacks or the seizure and destruction of enemy property 618 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 whether in order to starve out civilians cause them to move away or for any other motive ” 619 This rule would not apply to attacks that are carried out for specific purposes other than to deny sustenance 620 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 621 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 ” 622 Actions against this latter category of objects forfeiting protection however may not be taken if they 616 Refer to § 11 14 Food and Medical Supplies for the Civilian Population 617 Refer to § 6 8 Poison 618 Refer to § 5 19 Sieges and Encircled Areas § 13 10 Blockade § 5 5 Rules on Conducting Assaults Bombardments and Other Attacks § 5 17 Seizure and Destruction of Enemy Property 619 AP I art 54 2 620 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 ” 621 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 ” 622 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 ” 293 “may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement ” 623 Further exception is made for a State to engage in a “scorched earth” defense of a party’s own territory 624 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 warfare as discussed in the sub-sections above 625 5 21 OVERVIEW OF GOOD FAITH PERFIDY AND RUSES Absolute good faith with the enemy must be observed as a rule of conduct 626 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 627 Good faith prohibits • killing or wounding enemy persons by resort to perfidy 628 • misusing certain signs 629 623 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 ” 624 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 ” 625 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 ” 626 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 ” 627 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 ” 628 Refer to § 5 22 Treachery or Perfidy Used to Kill or Wound 629 Refer to § 5 24 Improper Use of Certain Signs 294 • fighting in the enemy’s uniform 630 • feigning non-hostile relations in order to seek a military advantage 631 and • compelling nationals of a hostile party to take part in the operations of war directed against their own country 632 However good faith permits • ruses of war or other lawful deceptive activities 633 • intelligence collection 634 • military information support operations including propaganda 635 and • certain types of bribery 636 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 637 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 630 Refer to § 5 23 Use of Enemy Flags Insignia and Military Uniforms 631 Refer to § 12 2 Principle of Good Faith in Non-Hostile Relations 632 Refer to § 5 27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country 633 Refer to § 5 25 Ruses of War and Other Lawful Deceptions 634 Refer to § 5 26 1 Propaganda 635 Refer to § 5 26 2 Information Gathering 636 Refer to § 5 26 3 Bribery or Offering of Rewards 637 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 295 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 638 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 639 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 640 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 641 The claim must be to legal protections 642 5 22 1 1 Perfidy and Treachery – Notes on Terminology “Treachery” and “perfidy” have been used interchangeably 643 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 644 638 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 ” 639 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 defining war crimes in international armed conflict to include “ k illing or wounding treacherously individuals belonging to the hostile nation or army” 640 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 ” 641 ICRC AP COMMENTARY 435 ¶1500 “The central element of the definition of perfidy is the deliberate claim to legal protection for hostile purposes ” 642 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 ” 643 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 296 Sometimes “perfidy” is used to refer to conduct that is by definition prohibited 645 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 646 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 spying sabotage capturing enemy personnel or evading enemy forces However such deception may not rely on certain signs and symbols 647 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 648 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 649 which takes advantage of the rule that flags of truce may not be used to shield military operations 650 • feigning surrender and then attacking 651 which takes advantage of the rule that the enemy may not attack those who have surrendered 652 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 ” 644 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’ ” 645 1956 FM 27-10 Change No 1 1976 ¶50 providing that “ t reacherous or perfidious conduct in war is forbidden” 646 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 ” 647 Refer to § 5 24 Improper Use of Certain Signs 648 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 649 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 ” 650 Refer to § 5 24 7 Flags of Truce 297 • feigning of death or incapacitation by wounds or sickness 653 and then attacking which takes advantage of the respect afforded the dead 654 or the protection afforded those who are hors de combat 655 • feigning civilian status and then attacking 656 and • calling out “do not fire we are friends” and then attacking 657 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 658 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 659 A similar rule is applied during naval operations 660 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 651 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 ” 652 Refer to § 5 10 3 Persons Who Have Surrendered 653 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 654 Refer to § 7 7 Treatment and Handling of Enemy Military Dead 655 Refer to § 5 10 4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds Sickness or Shipwreck 656 Refer to § 5 5 8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks 657 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 ” 658 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 ” 659 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 ” 660 Refer to § 13 13 1 Belligerent Warship’s Use of False Colors and Other Disguises 298 uniforms to kill or wound treacherously 661 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 662 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 663 Similarly the immediate use of captured enemy weapons or equipment 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 664 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 665 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 666 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 667 661 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 ” 662 Refer to § 5 22 1 Definition of Perfidy 663 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 ” 664 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 ” 665 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 ” 666 Refer to § 9 25 2 3 Disciplinary Punishment for Certain Offenses Committed in Connection With Escape 667 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 299 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 668 Enemy codes passwords and countersigns may be used as a ruse to aid military operations 669 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 the uniform of the opposing party may be liable to treatment as spies and saboteurs 670 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 671 Canada has taken a reservation from this rule 672 This provision of AP I is unclear as to what uses would be permissible and what uses would be prohibited 673 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 668 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 ” 669 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 ” 670 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 671 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 ” 672 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 ” 673 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 ” 300 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 674 However recognized exceptions exist concerning espionage 675 and warfare at sea 676 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 677 These emblems may not be used except to identify these protected persons and objects 678 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 679 Only civilian internee camps under the GC should be marked with an IC designation 680 674 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 ” 675 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 “ 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 ” 676 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 677 Refer to § 7 15 Display of the Distinctive Emblem to Facilitate Identification 678 Refer to § 7 15 4 Prohibitions on Unauthorized Uses of the Distinctive Emblem 679 Refer to § 9 11 4 3 Marking of POW Camps 680 Refer to § 10 11 1 3 Marking of Internment Camps 301 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 681 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 682 5 24 6 Markings for Cultural Property The distinctive emblem for cultural property may not be used for other purposes 683 5 24 7 Flags of Truce The improper use of a flag of truce is strictly prohibited 684 5 25 RUSES OF WAR AND OTHER LAWFUL DECEPTIONS Ruses of war are considered permissible 685 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 686 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 687 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 681 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 682 Refer to § 5 14 4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such 683 Refer to § 5 18 7 4 Other Uses of the Distinctive Emblem for Cultural Property Prohibited During Armed Conflict 684 Refer to § 12 4 2 1 Prohibition on Improper Use of the Flag of Truce 685 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 686 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 ” 687 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 302 • facilitating surprise attacks or ambushes 688 such as by o misleading the enemy as to the planned targets or locations of military operations 689 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 690 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 691 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 692 For 688 Refer to § 5 5 6 1 Surprise Attacks 689 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 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 ” 690 Refer to § 5 24 Improper Use of Certain Signs 691 Refer to § 5 23 1 Improper Use of Enemy Flags Insignia and Military Uniforms Prohibited 692 Refer to § 5 22 1 Definition of Perfidy 303 example pretending to be a civilian would not constitute a ruse although it may be a permissible deception in certain circumstances 693 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 694 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 limited to 695 • decoys or dummy materials such as dummy weapons equipment ships aircraft and buildings 696 • feigned activity or inactivity such as o simulating quiet o feigned flights retreats attacks marches 697 movements e g approaching a destination indirectly698 supply movements operations withdrawals or camp • 693 mimicking other friendly forces 699 Refer to § 5 25 3 Examples of Other Deceptions That Are Not Prohibited 694 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 ” 695 Consider AP I art 37 giving as examples of lawful ruses “the use of camouflage decoys mock operations and misinformation” 696 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 ” 697 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 ” 698 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 ” 304 • camouflage or deceptive lighting 700 • removing or altering identifying information including moving identifying landmarks • planting false information in a manner that allows enemy forces to intercept it 701 such as 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 702 or • using enemy codes signals or passwords 703 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 704 Units of one type may pretend to be units of another type 705 Markings that identify 699 Refer to § 5 25 2 1 Mimicking Other Friendly Forces 700 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 701 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 ‘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 ” 702 Refer to § 5 23 1 3 Deceptive Use of Enemy Flags Insignia and Military Uniforms Outside of Combat 703 Refer to § 5 23 1 5 Use of Enemy Codes Passwords and Countersigns Not Restricted 704 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 ” 305 equipment or personnel as belonging to a particular unit may be removed Individuals or units may also dress like friendly forces 706 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 707 These include • feigning incapacitation or death in order to escape the enemy 708 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 709 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 710 705 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 ” 706 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 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 ” 707 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 708 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 ” 709 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 ” 306 • 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 711 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 712 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 713 Propaganda has been disseminated through a variety of communications media including printed materials loudspeakers radio or television broadcast 710 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 ” 711 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 ” 712 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 ” 713 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 ” 307 aircraft or the internet Propaganda is sometimes used with bribery714 or to support intelligence gathering 715 Propaganda may be directed at enemy civilians and neutrals 716 Propaganda may encourage enemy persons to commit acts that would violate the domestic law of the enemy State 717 For example it would be permissible to encourage enemy combatants to defect desert or surrender 718 Similarly it is generally permissible to encourage insurrection among the enemy civilian population 719 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 714 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 ” 715 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 ” 716 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 ” 717 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 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 ” 718 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 ” 719 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 ” 308 Propaganda must not incite acts that are prohibited by the law of war 720 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 721 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 722 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 723 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 724 Similarly propaganda may not be used to subject a detainee to public curiosity or other humiliating or degrading treatment 725 Additionally the delivery of the propaganda should be consistent with other law of war obligations 726 5 26 2 Information Gathering The employment of measures necessary for obtaining information about the enemy and their country is considered permissible 727 Information gathering measures however may not violate specific law of war rules 728 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 729 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 730 720 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 ” 721 Refer to § 18 23 2 Instigating or Directly Inciting 722 Refer to § 11 20 1 1 Prohibition on Compulsory Service in an Occupying Power’s Armed Forces 723 Refer to § 5 5 7 Prohibition Against Declaring That No Quarter Be Given 724 Refer to § 10 5 3 2 Collective Penalties and Measures of Intimidation or Terrorism 725 Refer to § 8 2 2 Protection Against Humiliating or Degrading Treatment 726 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 ” 727 HAGUE IV REG 24 “ T he employment of measures necessary for obtaining information about the enemy and the country are considered permissible ” 728 GREENSPAN MODERN LAW OF LAND WARFARE 325 “In obtaining information a belligerent must not contravene specific rules of war ” 729 Refer to § 5 24 7 Flags of Truce 730 Refer to § 4 17 Spies Saboteurs and Other Persons Engaging in Similar Acts Behind Enemy Lines 309 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 731 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 ” 732 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 733 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 734 Similarly this rule does not 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 735 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 736 731 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 ” 732 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 ’” 733 Refer to § 4 18 3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status 734 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 ” 735 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 ” 736 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 ” 310 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 737 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 738 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 739 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 740 Similarly this rule would not prohibit States from compelling persons to betray an allegiance to a non-State armed group during non-international armed conflict 741 737 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 738 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 739 Refer to § 11 20 1 1 Prohibition on Compulsory Service in an Occupying Power’s Armed Forces 740 Refer to § 4 5 2 4 Draftees 741 Refer to § 17 12 1 Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict 311 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 312 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 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 10 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 313 The fact that the legality of a weapon is discussed in this manual does not obviate the 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 prohibited 15 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 314 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 Office and the Chairman of the DoD SAP Senior Review Group SRG The SRG Chairman will effect coordination with the appropriate CRG ” 315 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 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 316 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 317 • 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 DoD General Counsel 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 318 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 5 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 319 • 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 320 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 shotgun rounds to wound does not prohibit their use 65 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 321 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 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 ” 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 ” 322 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 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 323 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 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” 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 ” 324 comparable to or more severe than wounds produced by expanding bullets 80 In addition 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 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 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 325 the wounding effect upon the target of such bullets as reflected in customary international law ” 85 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 85 Resolution RC Res 5 First ICC Review Conference Resolutions and Declarations 49 INTERNATIONAL LEGAL MATERIALS 1328 1333 2010 emphasis added 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 ” 326 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 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 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 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 ” 327 States have regarded the use of depleted uranium weapons as consistent with their law of war obligations 96 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 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 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 328 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 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 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 329 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 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 104 Refer to § 6 6 Weapons Calculated to Cause Superfluous Injury § 6 7 Inherently Indiscriminate Weapons 105 Refer to § 6 7 Inherently Indiscriminate Weapons 106 Refer to § 5 12 Proportionality in Conducting Attacks 107 Refer to § 5 11 Feasible Precautions in 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 ” 330 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 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 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 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 “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 ” 331 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 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 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 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 332 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 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 121 116 Refer to § 6 16 2 Prohibition on Use of Riot Control Agents as a Method of Warfare 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 5 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 333 6 6 WEAPONS CALCULATED TO CAUSE SUPERFLUOUS INJURY It is especially forbidden to use weapons that are calculated to cause superfluous 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 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 ” 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 334 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 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 ” 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” 125 126 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 ” 335 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 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 134 130 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 ” 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 ” 336 • 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 • 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 136 135 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 337 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 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 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 ‘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 338 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 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 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 ” 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 339 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 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 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 ” 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 6 Discrimination in Conducting Attacks § 5 12 Proportionality in Conducting Attacks 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 340 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 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 ” 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 7 8 4 Examples of Military Objectives – Places of Military Significance 155 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 341 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 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 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 DoD General Counsel 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 342 use is required against a target of sufficient military importance to outweigh the incidental harm 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 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 ” 160 Refer to § 5 12 Proportionality in Conducting Attacks 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 343 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 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 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 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 ” 344 been understood not to prohibit the use of chemical herbicides that are harmless to human 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 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 ” 173 J Fred Buzhardt DoD General Counsel 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 345 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 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 ” 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 1 346 regardless of whether they are produced in facilities in munitions or elsewhere 182 Chemicals 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 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 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 ” 347 • to use chemical weapons • to develop produce otherwise acquire stockpile or retain chemical weapons or transfer 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 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 ” 348 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 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 196 192 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 11 193 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 ” 349 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 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 201 197 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 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 ” 350 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 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 206 202 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 ” 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 ” 351 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 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 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 ” 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 ” 352 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 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 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 ” 353 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 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 provisions 217 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 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 ” 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 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 354 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 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 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 ” 355 weapon that employs rubber projectiles that are unlikely to penetrate the skin need not be detectable by X-rays 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 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 ” 356 The term “mine” does not include hand grenades 227 A trip-wired hand grenade is not 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 ” 231 227 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 ” 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 ” 357 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 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 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 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 anti- 358 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 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 personnel 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 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 ” 359 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 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 248 243 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 360 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 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 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 ” 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 361 • remotely delivered mines other than anti-personnel mines without a feasible SD SDA mechanism 257 • 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 257 Refer to § 6 12 4 6 Remotely Delivered Mines Other Than Anti-Personnel Mines Without a Feasible SD SDA Mechanism 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 362 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 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 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 ” 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 ” 363 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 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 272 269 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 ” 364 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 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 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 365 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 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 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 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 366 • 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 camps or military chapels to be booby-trapped 281 • objects clearly of a religious nature • historic monuments works of art or places of worship that constitute the cultural or spiritual heritage of peoples 282 or • animals or their carcasses 6 12 5 General Rules for Using Mines Booby-Traps and Other Devices The use 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 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 ” 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 5 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 ” 367 • 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 boobytraps 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 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 6 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 7 8 4 Examples of Military Objectives – Places of Military Significance 368 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 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 295 289 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 anticipated ” Refer to § 5 12 Proportionality in Conducting Attacks 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 3 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 3 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 369 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 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 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 1 Effective Advance Warning Before an Attack That May Affect the Civilian Population 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 ” 370 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 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 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” 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 ” 371 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 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 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 ” 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 ” 372 • 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 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 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 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 373 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 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 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 ” 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 374 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 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 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 ” 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 375 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 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 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 ” 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 ” 376 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 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 antipersonnel land mines outside the Korean Peninsula 2 not to assist encourage or induce anyone outside the Korean 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 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 ” 377 Peninsula to engage in activity prohibited by the Ottawa Convention 3 to undertake to destroy antipersonnel landmine stockpiles not required for the defense of the Republic of Korea and 4 not to produce or otherwise acquire any antipersonnel 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 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 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 ” 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 211 378 The United States has announced policy changes that align U S antipersonnel 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 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 342 340 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 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 ” 379 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 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 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 ” 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 ” 345 Refer to § 5 11 3 Selecting Weapons Weaponeering 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 ” 380 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 Munitions 350 The Convention on Cluster Munitions establishes for its States Parties a number of prohibitions and restrictions on certain types of cluster munitions 351 These rules include prohibitions on assisting encouraging or inducing anyone to engage in any activity prohibited to a State Party 352 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 353 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 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 39 350 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 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 ” 352 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 ” 353 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 ” 381 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 munitions used is within its exclusive control 354 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 355 Only “pure” incendiaries such as napalm or the type of incendiary bombs used in World War II and Korea are regulated as incendiary weapons 356 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 357 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 358 354 Convention on Cluster Munitions art 21 4 May 30 2008 2688 UNTS 39 113 355 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 ” 356 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 ” 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 “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 ” 358 Refer to § 6 8 3 1 Definition of Chemical Weapons 382 6 14 1 2 Examples of Incendiary Weapons Examples of incendiary weapons include 359 • flame throwers 360 • fougasse 361 and • shells rockets grenades mines bombs and other containers of incendiary substances such as napalm and thermite 362 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 363 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 359 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 ” 360 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 ” 361 For example DEPARTMENT OF THE ARMY FIELD MANUAL 3-11 MARINE CORPS WARFIGHTING PUBLICATION 33 7 2 Flame Riot Control Agents and Herbicide Operations Aug 19 1996 “The flame fougasse is a variation 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 ” 362 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 ” 363 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 ” 383 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 weapons may include armor-piercing projectiles fragmentation shells explosive bombs and similar combined-effects munitions 364 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 365 However such use must comply with the general rules for the conduct of hostilities including the principles of discrimination and proportionality 366 In addition feasible precautions to reduce the risk of harm to civilians must be taken 367 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 368 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 364 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 ” 365 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 ” 366 Refer to § 5 6 Discrimination in Conducting Attacks § 5 12 Proportionality in Conducting Attacks 367 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 368 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 ” 384 object of attack by incendiary weapons 369 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 objectives or are themselves military objectives 370 Similarly the risks that the use of an incendiary weapon may pose to the civilian population should be considered in a proportionality analysis 371 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 372 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 373 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 374 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 369 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 ” 370 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 ” 371 Refer to § 5 12 Proportionality in Conducting Attacks 372 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 373 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 ” 374 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 ” 385 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 375 6 14 3 2 U S Reservation to CCW Protocol III on Incendiary Weapons The United States has taken a reservation to CCW Protocol III on Incendiary Weapons for the purpose of improving the protection of the civilian population 376 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 377 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 378 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 379 375 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 ” 376 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 ” 377 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 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 378 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 ” 379 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- 386 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 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 380 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 381 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 382 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 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 ” 380 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 ” 381 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 ” 382 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 ” 387 prospect of recovery Serious disability is equivalent to visual acuity of less than 20 200 Snellen measured using both eyes 383 Lasers that are designed to cause a temporary loss of sight such as laser “dazzlers ” would not fall under this prohibition 384 Unenhanced vision means the naked eye or the eye with corrective eyesight devices such as ordinary glasses or contact lenses 385 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 386 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 387 Such precautions include training of the armed forces and other practical measures such as promulgating doctrine and rules of engagement 388 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 383 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 ” 384 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 ” 385 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art 1 defining “unenhanced vision” as “the naked eye or … the eye with corrective eyesight devices ” 386 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 ” 387 Refer to § 5 3 3 2 What Precautions Are Feasible 388 CCW PROTOCOL IV ON BLINDING LASER WEAPONS art 2 “Such precautions shall include training of their armed forces and other practical measures ” 388 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 389 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 390 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 391 The United States does not consider riot control agents to be “chemical weapons ” 392 or otherwise to fall under the prohibition against asphyxiating poisonous or other gases and all analogous liquids materials or devices 393 389 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 ” 390 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 ” 391 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 ” 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 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 … ’” 393 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 389 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 394 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 controlling rioting POWs 395 • in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided 396 • 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 397 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 394 CHEMICAL WEAPONS CONVENTION art 1 5 “Each State Party undertakes not to use riot control agents as a method of warfare ” 395 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 ” 396 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 ” 397 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 ” 390 advice and consent to ratification of the Chemical Weapons Convention 398 Thus Executive Order 11850 has remained an important part of U S policy on the use of riot control agents 399 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 400 398 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 ” 399 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 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 400 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 ” 391 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 401 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 against the use of poison or poisoned weapons 402 6 17 2 Chemical Weapons Convention and Herbicides The Chemical Weapons Convention does not add any new constraints on the use of herbicides 403 The Chemical Weapons Convention addresses toxic chemicals that cause death temporary incapacitation or permanent harm to humans or animals rather than plants 404 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 405 6 17 3 ENMOD Convention and Herbicides Under certain circumstances the use of herbicides could be prohibited by the ENMOD Convention 406 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 407 401 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 ” 402 Refer to § 6 8 1 2 Death or Permanent Disability to Persons 403 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 ” 404 Refer to § 6 8 3 1 Definition of Chemical Weapons 405 Refer to § 6 8 3 4 Certain Uses of Toxic Chemicals Not Prohibited 406 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 ” 407 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 ” 392 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 408 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 409 The United States has not accepted a treaty rule that prohibits the use of 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 410 For example nuclear weapons must be directed against military objectives 411 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 412 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 413 In addition the United States has stated that it will not use or threaten to use nuclear weapons against non-nuclear weapons States that 408 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 ” 409 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 noting that “there is no general prohibition in conventional or customary international law on the use of nuclear weapons ” 410 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 ” 411 Refer to § 5 6 Discrimination in Conducting Attacks 412 Refer to § 5 12 Proportionality in Conducting Attacks 413 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 ” 393 are party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear nonproliferation obligations 414 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 understanding that the rules relating the use of weapons introduced by AP I were intended to apply exclusively to conventional weapons 415 Thus Parties to AP I have understood AP I provisions not to regulate or prohibit the use of nuclear weapons 416 Although the United States 414 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 ” 415 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 ” 416 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 19741977 Diplomatic Conference the Government of the French Republic continues to consider that the Protocol’s provisions concern exclusively conventional weapons and do not regulate or prohibit the use of nuclear weapons nor should they constitute a prejudice to any other rules of international law applicable to other activities necessary for the exercise by France of its inherent right of self-defense ” Canada Statement on Ratification of AP I Nov 20 1990 1591 UNTS 462 463 “It is the understanding of the Government of Canada that the rules introduced 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 ” 394 is not a Party to AP I the United States participated in the diplomatic conference that negotiated AP I based upon this understanding 417 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 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 418 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 419 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 420 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 421 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 422 417 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 ” 418 Refer to § 6 19 2 Using Explosive Ordnance 419 Refer to § 6 19 3 Abandoning Explosive Ordnance 420 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 421 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 ” 422 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 395 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 423 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 424 “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 425 For example UXO does not include weapons that have remained in the armory or arsenal and that have not been prepared for firing 426 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 427 AXO may or may not have been primed fused armed or otherwise prepared for use 428 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 429 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 423 WILLIAM H BOOTHBY WEAPONS AND THE LAW OF ARMED CONFLICT 303 2009 “Specifically the Protocol does not apply to chemical biological or nuclear weapons ” 424 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 ” 425 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 ” 426 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 ” 427 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 ” 428 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 ” 429 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 ” 396 • the approximate number type and nature of explosive ordnance used in these areas and • the general location of known and probable unexploded ordnance 430 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 431 In addition to the maximum extent possible and as far as practicable information should be recorded and retained on the abandonment of explosive ordnance in order to reduce the risks posed by explosive remnants of war 432 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 433 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 434 Such 430 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 ” 431 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 … ” 432 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 ” 433 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 ” 434 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 ” 397 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 435 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 • 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 436 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 437 • 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 438 435 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 ” 436 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 ” 437 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 ” 438 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 ” 398 • 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 439 • Appropriate containers and controlled environments where necessary should be used when stockpiling and transporting explosive ordnance 440 • The risk of explosions in stockpiles should be minimized by the use of appropriate stockpile arrangements 441 • 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 442 • Periodically stockpiled explosive ordnance should undergo where appropriate live-fire testing to ensure that munitions function as desired 443 • Sub-assemblies of stockpiled explosive ordnance should where appropriate undergo laboratory testing to ensure that munitions function as desired 444 • 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 439 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 ” 440 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 ” 441 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 ” 442 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 ” 443 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 ” 444 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 ” 399 testing procedures in order to maintain the reliability of stockpiled explosive ordnance 445 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 446 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 that explosive ordnance correctly 447 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 448 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 449 “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 445 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 ” 446 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 ” 447 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 ” 448 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 ” 449 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art 2 4 “Explosive remnants of war means unexploded ordnance and abandoned explosive ordnance ” 400 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 450 The CCW Protocol V on Explosive Remnants of War applies to situations resulting from armed conflict and occupation 451 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 452 These obligations 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 453 Feasible precautions are those precautions that are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military 450 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 ” 451 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 ” 452 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 ” 453 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 ” 401 considerations 454 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 455 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 456 Risk education to the civilian population should consist of risk education programs to facilitate information exchange between affected communities government authorities and humanitarian organizations so that affected communities are informed about the threat from explosive remnants of war Risk education programs are usually long-term activities 457 All programs of warnings and risk education should where possible take into account prevailing national and international standards including the International Mine Action Standards 458 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 459 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 454 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 3 3 2 What Precautions Are Feasible 455 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 ” 456 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 ” 457 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 ” 458 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 ” 459 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 ” 402 possible Warnings and risk education always should be provided to the affected communities at the earliest possible time 460 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 461 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 462 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 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 463 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 464 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 460 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 ” 461 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 ” 462 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 ” 463 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 ” 464 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 ” 403 risk education programs 465 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 466 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 467 Other treaties or certain U N Security Council resolutions may provide a higher level of additional protection 468 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 465 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 ” 466 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 ” 467 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 ” 468 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 ” 404 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 469 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 470 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 471 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 469 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 ” 470 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 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 ” 471 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 ” 405 military and humanitarian operations in the affected areas the availability and reliability of information and relevant security issues 472 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 473 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 474 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 475 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 476 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 472 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 ” 473 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 ” 474 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 ” 475 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” 476 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 ” 406 • 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 477 This information may be drawn from the information recorded and retained when using explosive ordnance 478 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 • 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 479 This information may be drawn from the information recorded and retained when abandoning explosive ordnance 480 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 477 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 ” 478 Refer to § 6 19 2 Using Explosive Ordnance § 6 19 4 Storing Records on the Use or Abandonment of Explosive Ordnance 479 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 ” 480 Refer to § 6 19 3 Abandoning Explosive Ordnance § 6 19 4 Storing Records on the Use or Abandonment of Explosive Ordnance 407 territories under its control 481 This obligation is consistent with long-established customary international law principles of sovereignty and responsibility 482 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 483 In conducting these activities international standards including the International Mine Action Standards should be taken into account 484 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 485 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 486 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 481 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 ” 482 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 ” 483 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 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 ” 484 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 ” 485 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 ” 486 Refer to § 11 5 Duty of the Occupying Power to Ensure Public Order and Safety 408 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 487 487 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 ” 409 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 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 410 for the protection of medical personel and the wounded sick and shipwrecked during noninternational 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 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 411 • to establish an armistice or suspension of fire or local arrangement to permit the removal 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 which they may deem it suitable to make separate provision 20 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 412 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 ” 413 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 414 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 10 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 415 • 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 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 10 4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds Sickness or Shipwreck 39 Refer to § 5 10 3 Persons Who Have Surrendered 40 Refer to § 5 10 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 10 5 2 Persons Deploying Into Combat by Parachute 416 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 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 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 417 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 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 cover incidental damage or casualties due to proximity to military objectives or to a justifiable mistake Because combatants who are wounded sick or shipwrecked on the battlefield are deemed to have accepted the risk of death or further injury due 52 Refer to § 9 3 2 Persons Entitled to POW Status 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 418 to proximity to military operations they need not be considered as incidental harm in assessing proportionality in conducting attacks 57 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 58 Searches of the wounded sick and shipwrecked and other security measures applied to them should be consistent with those applicable to other POWs 59 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 60 When they fall into enemy hands they are POWs 61 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 62 However upon taking custody the Detaining Power is required to ensure that they continue to receive the necessary medical care 63 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 64 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 57 Refer to § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives Compare § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 58 Refer to § 7 10 1 2 Search Not Prohibited 59 Refer to § 9 6 Security Measures With Respect to POWs 60 Refer to § 7 9 Captured Medical and Religious Personnel 61 Refer to § 7 3 2 Persons Entitled to Protection as Wounded Sick or Shipwrecked Under the GWS and GWSSea 62 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 ” 63 Refer to § 7 5 Humane Treatment and Care of Enemy Military Wounded Sick and Shipwrecked in the Power of a Party to the Conflict 64 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 ” 419 captor’s own country to a neutral port or even to a port in enemy territory In the last case POWs thus returned to their home country may not serve for the duration of the war 65 7 3 3 4 Prohibition Against Use in Booby-Traps Booby trapping the wounded or sick is expressly prohibited 66 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 67 The GC provides for the obligation to search for collect protect and care for civilians who are wounded sick shipwrecked and dead 68 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 69 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 65 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 ” 66 Refer to § 6 12 4 9 Certain Types of Prohibited Booby-Traps and Other Devices 67 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 ” 68 Refer to § 7 16 1 Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded Killed Shipwrecked or Exposed to Grave Danger 69 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 ” 420 wounded sick and shipwrecked from pillage or ill-treatment by any person whether military or civilian seeking to harm them 70 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 71 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 72 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 73 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 74 Such arrangements may take the form of or include a protected or neutral zone 75 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 76 70 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 ” 71 For example George W Bush Remarks to the Community at Camp Lejeune North Carolina Apr 3 2003 2003I PUBLIC PAPERS OF THE PRESIDENTS 404 406 “American forces and our allies are treating innocent civilians 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 ” 72 Refer to § 7 4 5 1 Requests for Civilian Volunteers to Collect and Care for the Wounded Sick and Shipwrecked 73 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 ” 74 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 ” 75 Refer to § 5 14 3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected 76 Refer to § 5 19 2 Removal and Passage of Certain Personnel – Vulnerable Civilians Diplomatic and Consular Personnel the Wounded and Sick and Medical Personnel 421 For example parties to a conflict may agree to a temporary cease-fire to permit evacuation of the wounded from the fighting area 77 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 78 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 79 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 77 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 ” 78 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 79 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 ” 422 behind enemy lines or a submarine may not have the capability to receive and care for large numbers of injured personnel 80 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 81 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 82 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 83 The civilian population shall respect these wounded and sick and in particular abstain from offering them violence 84 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 85 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 80 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 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 81 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 ” 82 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 ” 83 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 ” 84 GWS art 18 “The civilian population shall respect these wounded and sick and in particular abstain from offering them violence ” 85 GWS art 18 “No one shall ever be molested or convicted for having nursed the wounded or sick ” 423 yachts or other craft to take on board and care for wounded sick or shipwrecked persons and to collect the dead 86 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 87 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 88 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 89 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 90 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 91 86 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 ” 87 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 ” 88 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 ” 89 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 ” 90 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 91 Refer to § 9 5 Humane Treatment and Basic Protections for POWs 424 For example the prohibition on subjecting the wounded sick or shipwrecked to biological experiments is also reflected in the GPW 92 Similarly the wounded sick and shipwrecked who are women shall be treated with all consideration due to their sex 93 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 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 94 Additional rules provide for the medical attention and care for POWs who have been interned in POW camps 95 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 96 The obligation to care for enemy combatants who are wounded and sick is a longstanding law of war obligation 97 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 98 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 99 92 Refer to § 9 5 2 4 No Physical Mutilation or Medical Scientific or Biological Experiments 93 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 94 Refer to § 9 9 2 Conditions of Evacuation § 9 9 1 Delay in Evacuation for Medical Reasons 95 Refer to § 9 14 Medical Attention for Interned POWs 96 Refer to § 7 4 Search Collection and Affirmative Protection of the Wounded Sick Shipwrecked and Dead 97 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 ” 98 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 ” 425 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 100 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 101 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 102 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 103 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 104 AP I Article 11 paragraph 5 provides for a “right to refuse any surgical operation ” 105 However this rule could operate in an inhumane manner in some circumstances and the United States has not accepted it 106 99 GWS art 12 “Only urgent medical reasons will authorize priority in the order of treatment to be administered ” GWS-SEA art 12 same 100 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 ” 101 Refer to § 9 26 1 POWs Subject to the Laws Regulations and Orders in Force in the Armed Forces of the Detaining Power 102 Refer to § 9 5 2 4 No Physical Mutilation or Medical Scientific or Biological Experiments 103 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 ” 104 Refer to § 9 11 5 1 Necessary Sanitary Measures 105 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 ” 106 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 426 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 107 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 to the enemy 108 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 109 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 110 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 111 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 112 refuse surgery necessary to save his own life in order to make a political point or because of ignorance or mental incompetence ” 107 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 ” 108 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 ” 109 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 ” 110 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 ” 111 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 ” 112 Refer to § 7 9 6 No Relief of Obligations of the Detaining Power 427 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 113 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 maintain accountability for POWs 114 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 115 These records should if possible include 116 • 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 117 • 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 118 113 Compare § 9 9 3 2 Feasible Precautions to Ensure Safety 114 Refer to § 9 31 National Accounting of the Detention of POWs 115 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 ” 116 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 117 Refer to § 9 4 3 Issue of Identification Cards to Persons Liable to Become POWs 118 Refer to § 9 31 1 Accountability Information That the Detaining Power Should Collect 428 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 119 POWs who owing to their physical or mental condition are unable to state their identity shall be handed over to the medical service 120 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 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 121 This examination should be conducted before burial or cremation 122 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 123 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 124 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 125 119 Refer to § 9 8 4 Accountability Information That POWs Are Bound to Provide Upon Questioning 120 Refer to § 9 8 4 1 POWs Unable to State Their Identity 121 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 ” 122 Refer to § 7 7 4 1 Examination of Bodies Before Burial or Cremation 123 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 124 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 ” 125 Refer to § 9 31 4 U S Practice in Reporting to the ICRC Central Tracing Agency 429 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 126 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 127 The GPW provides other rules relating to POWs who have died while in detention 128 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 129 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 130 7 7 1 1 No Disrespectful or Degrading Treatment of the Dead Enemy military dead must be protected from disrespectful or degrading acts 131 For example mutilation or 126 GWS COMMENTARY 179 noting that “the First Convention was essentially concerned with the dead picked up on the battlefield” 127 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 First Convention and it is therefore only natural that they should remain subject to the provisions of that Convention ” 128 Refer to § 9 34 Death of POWs 129 Refer to § 10 34 Death of Internees 130 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 ’” 131 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 ” 430 cannibalism of dead bodies is prohibited 132 In addition posing with bodies for photographs or 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 133 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 134 This means that the personal effects of deceased persons may not be pillaged or otherwise taken without proper authorization 135 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 136 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 132 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 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 ” 133 Refer to § 6 12 4 9 Certain Types of Prohibited Booby-Traps and Other Devices 134 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 ” 135 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 ” 136 Refer to § 5 17 3 2 Ownership of Captured or Found Property on the Battlefield 431 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 137 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 138 If the body is to be buried at sea then the single identity disc itself should be collected and forwarded through the National POW Information Bureau 139 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 140 The GPW also requires the forwarding of wills and all personal valuables left by POWs including those who have died 141 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 142 Where applicable these certificates or lists shall state the circumstances and reasons for cremation 143 The GPW provides further requirements for death certificates and lists of persons who died as POWs 144 137 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 ” 138 Refer to § 7 7 4 2 Burial on Land 139 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 ” 140 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 141 Refer to § 9 31 2 3 Collection of Personal Valuables Left by POWs 142 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 143 Refer to § 7 7 4 4 Cremation 144 Refer to § 9 34 1 Transmittal of Wills § 9 34 2 Death Certificates 432 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 145 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 forwarded in accordance with other requirements 146 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 147 The use of collective graves should be avoided 148 One-half of the double identity disc or the identity disc itself if it is a single disc should remain on the body 149 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 150 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 151 145 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 ” 146 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 147 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 ” 148 Refer to § 9 34 3 2 Burial 149 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 ” 150 GWS-SEA art 20 “Where a double identity disc is used one half of the disc should remain on the body ” 151 Refer to § 7 7 2 2 Forwarding Valuable Articles Found on the Dead 433 An examination and report are especially important in such cases in order to ensure that accountability information is collected and forwarded 152 The position latitude and longitude and the date should be recorded in the death certificate 153 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 154 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 in the death certificate or on the authenticated list of the dead 155 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 156 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 157 The GPW provides additional requirements for the Graves Registration Service with respect to POWs who have died while POWs 158 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 152 Refer to § 7 7 4 1 Examination of Bodies Before Burial or Cremation 153 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 ” 154 GWS art 17 “Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased ” 155 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 ” 156 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 ” 157 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 ” 158 Refer to § 9 34 4 1 Records Held by the Graves Registration Service 434 the exact location and markings of the graves together with particulars of the dead interred therein 159 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 including 160 o medical personnel exclusively engaged in medical duties 161 o administrative staff exclusively engaged in support to medical units 162 and o chaplains attached to the armed forces 163 • 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 164 • authorized staff of voluntary aid societies 165 • staff of a recognized aid society of a neutral country 166 and • the religious medical and hospital personnel of hospital ships and their crews 167 159 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 ” 160 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 161 Refer to § 4 9 1 1 Medical Personnel Exclusively Engaged in Medical Duties 162 Refer to § 4 9 1 2 Staff Exclusively Engaged in Support to Medical Units and Establishments 163 Refer to § 4 9 1 3 Chaplains Attached to the Armed Forces 164 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 165 Refer to § 4 11 Authorized Staff of Voluntary Aid Societies 166 Refer to § 4 12 Staff of a Recognized Aid Society of a Neutral Country 435 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 168 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 169 Because medical and religious personnel are deemed to have accepted the risk of death or further injury due to proximity to military operations they need not be considered as incidental harm in assessing proportionality in conducting attacks 170 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 171 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 172 7 8 2 3 Capture Not Prohibited The respect and protection afforded medical and religious personnel do not immunize them from detention 173 However certain classes of medical and religious personnel are under other rules exempt from detention or capture 174 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 175 167 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 ” 168 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 ” 169 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 ” 170 Refer to § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives Compare § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 171 Refer to § 7 10 1 2 Search Not Prohibited 172 Refer to § 9 6 Security Measures With Respect to POWs 173 Refer to § 7 9 Captured Medical and Religious Personnel 174 Refer to § 7 9 1 1 Medical and Religious Personnel Who Are Exempt From Capture and Detention 175 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 436 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 176 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 177 Hampering or impeding enemy military operations also would be a basis for finding that medical or religious personnel have forfeited protection 178 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 179 7 8 4 Use of the Distinctive Emblem to Facilitate the Respect and Protection of Military 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 180 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 181 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 182 7 8 4 1 Wearing of Armlet With the Distinctive Emblem The GWS contemplates that • military medical and religious personnel 183 • authorized staff of voluntary aid societies 184 and • staff of a recognized aid society of a neutral country 185 personnel also ” Refer to § 7 10 3 Loss of Protection of Military Medical Units and Facilities From Being Made the Object of Attack 176 Refer to § 7 10 3 5 Use of Weapons in Self-Defense or Defense of the Wounded and Sick 177 Compare § 7 12 2 2 No Use for Military Purposes 178 Compare § 7 12 2 3 No Hampering the Movement of Combatants 179 Refer to § 7 10 3 1 Acts Harmful to the Enemy 180 Refer to § 5 22 Treachery or Perfidy Used to Kill or Wound 181 Refer to § 7 15 2 Control of Display by the Competent Military Authority § 7 15 2 1 Removal or Obscuration of the Distinctive Emblem 182 Refer to § 7 15 3 Significance of the Display of the Distinctive Emblem 183 Refer to § 4 9 Military Medical and Religious Personnel 184 Refer to § 4 11 Authorized Staff of Voluntary Aid Societies 437 shall wear affixed to the left arm a water-resistant armlet bearing the distinctive emblem issued and stamped by the military authority 186 In no circumstances may these personnel be deprived of the right to wear the armlet 187 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 authority 188 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 185 • staff of a recognized aid society of a neutral country 189 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 190 Refer to § 4 12 Staff of a Recognized Aid Society of a Neutral Country 186 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 ” 187 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 ” 188 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 ” 189 Refer to § 4 12 Staff of a Recognized Aid Society of a Neutral Country 190 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 ” 438 Such individuals may be held temporarily pending determination of their status or until conditions permit their safe return or release 191 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 192 Personnel who are retained in this way are not considered POWs 193 These classes of personnel include • military medical and religious personnel including 194 o medical personnel exclusively engaged in medical duties 195 o administrative staff exclusively engaged in support to medical units 196 and o chaplains attached to the armed forces 197 and • authorized staff of voluntary aid societies 198 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 191 • 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 199 • members of the armed forces who are trained as medical personnel but not attached to the medical service 200 Refer to § 4 12 Staff of a Recognized Aid Society of a Neutral Country 192 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 ” 193 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 ” 194 Refer to § 4 9 Military Medical and Religious Personnel 195 Refer to § 4 9 1 1 Medical Personnel Exclusively Engaged in Medical Duties 196 Refer to § 4 9 1 2 Staff Exclusively Engaged in Support to Medical Units and Establishments 197 Refer to § 4 9 1 3 Chaplains Attached to the Armed Forces 198 Refer to § 4 11 Authorized Staff of Voluntary Aid Societies 199 Refer to § 4 13 Auxiliary Medical Personnel 200 Refer to § 4 5 2 2 Members Trained as Medical Personnel but Not Attached to the Medical Service 439 • members of the armed forces who are ministers of religion without having officiated as chaplains to their own forces 201 and • military medical and religious personnel who forfeit their status as retained personnel because they are not exclusively engaged in medical and religious duties 202 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 203 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 204 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 205 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 206 201 Refer to § 4 5 2 3 Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces 202 Refer to § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 203 Refer to § 4 27 1 Identification Cards Used to Help Clarify Status 204 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 ” 205 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 206 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 440 In no circumstances may retained personnel be deprived of their insignia or identity cards nor of the right to wear the armlet 207 In case of loss they shall be entitled to receive duplicates of the cards and to have the insignia replaced 208 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 209 This preference for retained personnel to treat the POWs of the armed forces to which the retained personnel belong is also reflected in the provisions of the GPW related to the medical treatment of POWs 210 Like POWs retained personnel may be subject to disciplinary or judicial proceedings for violations of the laws and regulations of the Detaining Power 211 If retained personnel refuse to perform their medical duties on behalf of POWs they are liable to forfeit their status as retained personnel 212 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 213 As a historical matter such return has been exceptional while hostilities are ongoing 214 207 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 208 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 209 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 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 ” 210 Refer to § 9 14 2 2 Treatment by Medical Personnel of the Power on Which They Depend 211 Refer to § 9 26 General Principles Applicable to POW Discipline § 9 27 Disciplinary Proceedings and Punishment § 9 28 Judicial Proceedings and Punishment 212 Refer to § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 213 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 ” 214 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 ” 441 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 215 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 216 On their departure they shall take with them the effects personal belongings valuables and instruments belonging to them 217 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 218 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 219 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 220 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 221 215 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 ” 216 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 ” 217 GWS art 30 “On their departure they shall take with them the effects personal belongings valuables and instruments belonging to them ” 218 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 ” 219 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 ” 220 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 ” 221 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 442 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 222 For this purpose the Detaining Power shall place at their disposal the necessary means of transport 223 7 9 5 4 Correspondence by Chaplains Chaplains 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 224 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 225 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 226 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 227 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 228 For this purpose parties to the conflict shall agree at 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 ” 222 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 ” 223 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 ” 224 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 ” 225 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 226 Refer to § 9 36 5 2 POWs Entitled to Present Themselves for Examination Before the Commission § 9 36 5 3 Observers at the Examination 227 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 ” 228 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 ” 443 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 229 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 230 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 231 This provision arose from limited practice in World War II where retained personnel were repatriated and replaced by medical personnel from their home country 232 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 233 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 229 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 ” 230 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 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 ” 231 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 ” 232 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 ” 233 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 ” 444 respected and protected by the parties to the conflict 234 In addition establishments ashore that are entitled to the protection of the GWS shall be protected from bombardment or attack from the sea 235 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 236 7 10 1 1 Incidental Harm Not Prohibited The incidental harm to 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 237 Commanders are obligated to situate medical units and facilities such that they are not in danger from attack against military objectives 238 Because medical units and facilities that are positioned near military objectives are deemed to have accepted the risk of death or further injury due to proximity to military operations they need not be considered as incidental harm in assessing proportionality in conducting attacks 239 7 10 1 2 Search Not Prohibited Military medical units and facilities are not immune from search by the enemy 240 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 234 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 ” 235 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 ” 236 Refer to § 7 8 2 Meaning of “Respect and Protection” of Medical and Religious Personnel 237 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 ” 238 Refer to § 7 10 2 Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives 239 Refer to § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives Compare § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 240 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 ” 445 7 10 1 3 Capture Not Prohibited The respect and protection afforded medical units and facilities do not immunize them from capture 241 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 242 In no case may a military medical unit or facility be used for the purpose of shielding military objectives from attack 243 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 241 Refer to § 7 10 5 Capture of Military Medical Units and Facilities 242 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 ” 243 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 446 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 244 7 10 3 1 Acts Harmful to the Enemy Medical establishments and units must refrain from all interference direct or indirect in military operations 245 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 246 A medical unit must not be deliberately situated so as to hamper or impede an enemy attack 247 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 248 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 249 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 250 Such use of force 244 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 ” 245 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 ” 246 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 ” 247 Compare § 7 12 2 3 No Hampering the Movement of Combatants 248 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 ” 249 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 ” 250 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 ” 447 in self-defense against medical units or facilities must be proportionate 251 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 • 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 252 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 253 Military medical units and facilities may be armed to the extent necessary to enable them to defend themselves or their patients against unlawful attacks 254 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 251 Refer to § 2 4 Proportionality 252 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 ” 253 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 ” 254 For example U S military medical and religious personnel have been armed with the M9 pistol M16 rifle or M4 carbine 448 armed such that they would appear to an enemy military force to present an offensive threat 255 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 256 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 enemy military forces 257 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 258 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 259 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 255 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 256 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 ” 257 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 ” 258 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 ” 259 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 ” 449 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 military authorities 260 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 261 Nevertheless medical units that have fallen into the hands of the enemy shall not fly any flag other than that of the GWS 262 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 263 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 264 260 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 ” 261 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 ” 262 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 ” 263 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 ” 264 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 ” 450 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 265 The buildings material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war e g they may be captured and used by the enemy military force 266 but may not be diverted from their purpose as long as they are required for the care of wounded and sick 267 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 being cared for in them 268 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 269 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 270 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 271 As with medical units these ground transports must refrain from all interference direct or indirect in military operations in order to retain protection 272 For example these ground transports must not be used to transport able-bodied combatants or to carry ammunition to combat forces 273 265 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 ” 266 Refer to § 5 17 Seizure and Destruction of Enemy Property 267 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 ” 268 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 ” 269 GWS art 33 “The material and stores defined in the present Article shall not be intentionally destroyed ” 270 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 271 Compare § 7 10 3 Loss of Protection of Military Medical Units and Facilities From Being Made the Object of Attack 272 Compare § 7 10 3 1 Acts Harmful to the Enemy 273 Compare § 7 12 2 2 No Use for Military Purposes 451 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 274 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 275 The reference to the laws of war means that the adverse party may seize and dispose of the property as enemy property 276 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 carried in such transports 277 The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law 278 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 279 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 280 274 Compare § 7 10 3 2 Due Warning Before Cessation of Protection 275 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 ” 276 Refer to § 5 17 Seizure and Destruction of Enemy Property 277 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 ” 278 GWS art 35 “The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law ” 279 Refer to § 10 3 3 Categories of Nationals Specifically Excluded From the Definition of Protected Person Under the GC 280 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 ” 452 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 281 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 282 Many States have employed ships that are equipped or converted into hospital ships rather than building them specifically as hospital ships 283 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 284 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 285 281 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 ” 282 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 ” 283 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 ” 284 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 ” 285 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 ” 453 7 12 1 3 Authorized Neutral Civilian Hospital Ships Civilian hospital ships may also be sent from neutral countries 286 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 287 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 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 288 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 289 For example U S military hospital ships have adhered to this recommendation by a large margin 290 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 286 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 ” 287 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 ” 288 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 ” 289 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 ” 290 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 ” 454 requirements permit 291 The same shall apply so far as possible to fixed coastal installations used exclusively by these craft for their humanitarian missions 292 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 293 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 masts and funnels must be notified to the parties to the conflict ten days before such craft are employed 294 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 295 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 296 In other words these vessels should help friendly and enemy personnel without distinction 297 291 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 ” 292 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 ” 293 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 ” 294 Refer to § 7 12 1 1 Military Hospital Ships 295 Refer to § 7 12 1 2 Commissioned Civilian Hospital Ships 296 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 ” 297 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 455 7 12 2 2 No Use for Military Purposes Parties to the GWS-Sea undertake not to use these vessels for any military purpose 298 These vessels must not participate in any way in the armed conflict or the war effort 299 For example these vessels may not be used to relay military orders transport able-bodied combatants or military equipment or engage in reconnaissance 300 Such acts constitute acts harmful to the enemy that forfeit a vessel’s protection from being made the object of attack and capture 301 7 12 2 3 No Hampering the Movement of Combatants Such vessels shall in no way hamper the movement of combatants 302 Any deliberate attempt by a hospital vessel to hamper the movement of combatants would constitute an act harmful to the enemy although 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 ” 298 GWS-SEA art 30 “The High Contracting Parties undertake not to use these vessels for any military purpose ” 299 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 ” 300 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 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 ” 301 Refer to § 7 12 6 Forfeiture of Protection of Hospital Ships and Sick Bays 302 GWS-SEA art 30 “Such vessels shall in no wise hamper the movements of the combatants ” 456 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 303 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 304 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 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 305 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 306 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 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 307 They may refuse 303 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 304 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 ” 305 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 ” 306 GWS-SEA art 30 “During and after an engagement they will act at their own risk ” 307 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 ” 457 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 308 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 309 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 310 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 311 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 312 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 313 The lack of secret codes for communication was intended to afford belligerents a guarantee that hospital ships were not improperly participating in hostilities 314 This rule was formulated before developments in modern communications technology made 308 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 ” 309 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 ” 310 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 ” 311 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 ” 312 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 ” 313 GWS-SEA art 34 “In particular hospital ships may not possess or use a secret code for their wireless or other means of communication ” 314 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 ” 458 encryption more common 315 Substantial practical difficulties have arisen in construing this rule in a way that would prohibit any use of encrypted communications by hospital ships 316 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 conduct encrypted communications 317 Other States have not objected to this practice 318 Some States have taken the same view 319 Scholarly commentators have also supported this view 320 315 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 ” 316 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 ” 317 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 ” 318 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 ” 319 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 459 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 321 Commissioners or neutral observers may be placed on board hospital ships to verify compliance with this rule 322 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 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 323 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 324 A white flag with a red cross shall be flown at the mainmast as high as possible 325 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 ” 320 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 ” 321 Refer to § 7 12 2 2 No Use for Military Purposes § 7 10 3 1 Acts Harmful to the Enemy 322 Refer to § 7 12 2 6 Control and Search of Hospital Ships and Coastal Rescue Craft 323 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 ” 324 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 ” 325 GWS-SEA art 43 “A white flag with a red cross shall be flown at the mainmast as high as possible ” 460 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 326 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 327 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 328 7 12 3 3 Night-Time Identification Measures 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 329 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 330 The distinctive emblem of the red crystal also may be used for the same purposes as the red cross 331 326 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 ” 327 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 ” 328 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 ” 329 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 ” 330 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 ” 331 Refer to § 7 15 1 3 Red Crystal 461 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 332 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 333 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 334 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 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 335 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 336 Some States may be Parties to the GWS-Sea but not to the 1904 Hague treaty that creates this exemption 332 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 ” 333 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 ” 334 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 ” 335 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 ” 336 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 462 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 337 Thus these vessels are not subject to the restrictions that belligerent warships staying in a neutral port are subject to by neutral Powers 338 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 339 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 340 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 341 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 342 In particular hospital ships and coastal rescue craft may not be used for military purposes nor to hamper the movements of combatants 343 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 344 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 ” 337 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 ” 338 Refer to § 15 9 Additional Rules Applicable to Neutral Ports Roadsteads and Internal Waters 339 GWS-SEA art 28 “Should fighting occur on board a warship the sick-bays shall be respected and spared as far as possible ” 340 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 ” 341 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 ” 342 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 ” 343 Refer to § 7 12 2 2 No Use for Military Purposes § 7 12 2 3 No Hampering the Movement of Combatants 344 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 ” 463 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 345 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 and above the normal requirements 346 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 345 Compare § 7 10 3 2 Due Warning Before Cessation of Protection 346 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 ” 464 hospital ship 347 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 348 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 349 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 350 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 351 The adverse Power shall preserve the right to board the carrier ships but not to capture them or seize the equipment carried 352 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 347 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 ” 348 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 ” 349 See 2004 UK MANUAL ¶13 124 “Hospital ships may be equipped with purely deflective means of defence such as chaff and flares ” 350 Refer to § 7 12 6 Forfeiture of Protection of Hospital Ships and Sick Bays 351 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 ” 352 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 ” 465 to verify the equipment carried 353 For this purpose free access to the equipment shall be given 354 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 355 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 356 However known medical aircraft when performing their humanitarian functions must be respected and protected 357 Such aircraft does not constitute a military objective that is liable to being made the object of attack 358 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 353 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 ” 354 GWS-SEA art 38 “For this purpose free access to the equipment shall be given ” 355 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 ” 356 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 ” 357 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 ” 358 Refer to § 5 7 4 1 Military Equipment and Bases 466 means of control such as directing the aircraft to land and submit to search have been exhausted 359 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 360 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 361 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 ammunition to combat forces 362 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 363 There is 359 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 ” 360 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” 361 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 ” 362 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 363 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 ” 467 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 364 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 365 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 366 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 367 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 368 7 14 4 Prohibition on Flights Over Enemy or Enemy-Occupied Territory Unless otherwise agreed flights over enemy or enemy-occupied territory are prohibited 369 If flying 364 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 ” 365 Compare § 7 12 2 3 No Hampering the Movement of Combatants § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 366 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 ” 367 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 with the distinctive emblem prescribed in Article 41 together with their national colours on their lower upper and lateral surfaces ” 368 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 ” 369 GWS art 36 “Unless agreed otherwise flights over enemy or enemy-occupied territory are prohibited ” GWSSEA art 39 same 468 pursuant to an agreement however medical aircraft are to receive protection when flying over enemy or enemy-occupied territory 370 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 371 In the event of a landing thus imposed the aircraft with its occupants may continue its flight after examination if any 372 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 373 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 374 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 375 They shall give neutral Powers prior notice of their passage over the said territory and obey every summons to alight on land or water 376 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 377 370 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 ” 371 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 ” 372 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 ” 373 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 ” 374 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 ” 375 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 “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 ” 376 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 ” 377 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 469 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 378 Such possible conditions or restrictions shall be applied equally to all parties to the conflict 379 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 380 The cost of their accommodation and internment shall be borne by the Power on which they depend 381 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 382 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 authority The misuse of the distinctive emblem is prohibited 378 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 379 GWS art 37 “Such possible conditions or restrictions shall be applied equally to all Parties to the conflict ” GWS-SEA art 40 same 380 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 ” 381 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 382 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 ” 470 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 383 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 384 The red cross has long been used to identify medical personnel during armed conflict 385 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 386 383 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 ” 384 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 ” 385 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 ” 386 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 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 ” 471 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 387 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 388 This distinctive emblem is referred to in AP III as the “third Protocol emblem” 389 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 390 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 391 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 distinctive emblems of the Geneva Conventions shall enjoy equal status 392 In addition AP III provides that the medical services and religious personnel of armed forces of Parties to AP III 387 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 ” 388 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 ” 389 AP III art 2 2 “This distinctive emblem is referred to in this Protocol as the ‘third Protocol emblem’ ” 390 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 ” 391 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 ” 392 AP III art 2 1 “The distinctive emblems shall enjoy equal status ” 472 may without prejudice to their current emblems make temporary use of any distinctive emblems where this may enhance protection 393 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 394 Israel ratified the 1949 Geneva Conventions with the reservation that it will use a Red Shield of David as its distinctive sign 395 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 396 For example under military regulations helmets or vehicles used by the Medical Service might bear the distinctive emblem to facilitate the respect and protection of medical personnel by the enemy 397 393 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 ” 394 For example H Beer Secretary General League of Red Cross Societies and J Moreillon Department of Principles and Law International Committee of the Red Cross Adoption of the Red Crescent by the Islamic Republic of Iran Circular No 72 Nov 5 1980 reprinted in 20 INTERNATIONAL REVIEW OF THE RED CROSS 31617 1980 “On 4 July 1980 the Islamic Republic of Iran informed the International Committee of the Red Cross 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 ” 395 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 ” 396 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 ” 397 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 ” 473 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 398 Thus the military command may authorize the removal or obscuring of the distinctive emblem for tactical purposes such as camouflage 399 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 400 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 401 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 402 The absence of the 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 398 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 ” 399 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 ” 400 Refer to § 5 3 3 2 What Precautions Are Feasible 401 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 ” 402 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 ” 474 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 403 Rather the right to protection is established by the fact that the units facilities or personnel have met the applicable requirements for protected status 404 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 405 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 406 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 407 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 concerned 408 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 403 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 ” 404 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 405 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 ” 406 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 ” 407 GWS art 44 “The same shall apply to the emblems mentioned in Article 38 second paragraph in respect of the countries which use them ” 408 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 ” 475 military operations 409 For example using an ambulance marked with the Red Cross to mount a surprise attack against enemy forces would be prohibited 410 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 411 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 412 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 413 This use of the emblem is simply to indicate an association with the Red Cross movement 414 409 Refer to § 5 24 Improper Use of Certain Signs 410 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 ’” 411 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 ” 412 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 ” 413 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 ” 414 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 ” 476 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 415 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 416 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 417 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 418 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 419 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 420 However as a practical matter the armed forces may be asked 415 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 ” 416 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 ” 417 GC art 16 “The wounded and sick as well as the infirm and expectant mothers shall be the object of particular protection and respect ” 418 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 ” 419 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 ” 420 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 477 to lead such efforts or to carry out a joint relief operation with civilian authorities 421 For example the U S armed forces often have undertaken to care for the civilian wounded and sick 422 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 423 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 424 7 17 1 1 Acts Harmful to the Enemy Civilian hospitals must avoid any 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 425 However the fact that sick or wounded slightly different from the corresponding Article in the First Geneva Convention ‘Parties to the conflict shall without delay … take all possible measures …’ ” 421 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 ” 422 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 ” 423 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 ” 424 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 ” 425 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 478 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 426 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 427 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 428 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 429 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 GWS but only if authorized by the State 430 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 ” 426 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 ” 427 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 ” 428 Compare § 7 10 3 2 Due Warning Before Cessation of Protection 429 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 ” 430 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 ” 479 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 431 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 432 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 433 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 434 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 ” 435 In occupied territory and in zones of military operations civilian hospital personnel who 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 431 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 ” 432 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 ” 433 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 ” 434 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 ” 435 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 ” 480 wear on the left arm while carrying out their duties 436 This armlet shall be issued by the State and shall bear the emblem provided for in Article 38 of the GWS 437 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 438 The identity card shall state the duties on which they are employed 439 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 440 This list should provide the names of all hospital personnel both permanent and temporary and specify the duties of each of them 441 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 442 The vehicles in a medical convoy need not be used permanently for medical purposes but while they are in the convoy they are not to be used for other purposes 443 436 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 ” 437 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 ” 438 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 ” 439 GC art 20 “The identity card shall state the duties on which they are employed ” 440 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 ” 441 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 ” 442 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 ” 443 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 481 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 444 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 445 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 446 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 447 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 448 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 449 However as with medical aircraft for military personnel known civilian medical aircraft when performing their humanitarian functions must be respected and protected provided they identify themselves as such and comply with the directions of the enemy State 450 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 ” 444 Compare § 7 17 1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy 445 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 ” 446 Compare § 7 17 1 1 Acts Harmful to the Enemy 447 Compare § 7 17 1 2 Due Warning Before Cessation of Protection 448 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 ” 449 Refer to § 7 14 Military Medical Aircraft 450 Refer to § 7 14 1 Medical Aircraft Not Flying at Heights and Times and on Routes Specifically Agreed Upon by Belligerents Concerned 482 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 451 7 19 3 Prohibition of Flight Over Enemy Territory Unless otherwise agreed flights over enemy or enemy-occupied territory are prohibited 452 7 19 4 Summons to Land Such aircraft shall obey every summons to land 453 If the aircraft refuses to obey it does so at its own risk 454 In the event of a landing thus imposed the aircraft with its occupants may continue its flight after examination if any 455 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 456 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 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 451 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 ” 452 GC art 22 “Unless agreed otherwise flights over enemy or enemy-occupied territory are prohibited ” 453 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 ” 454 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 ” 455 GC art 22 “In the event of a landing thus imposed the aircraft with its occupants may continue its flight after examination if any ” 456 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 ” 483 medical units 457 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 ” 458 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 459 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 460 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 461 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 462 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 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 457 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 ” 458 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 ” 459 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 460 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 ” 461 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 ” 462 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 ” 484 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 463 463 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 ” 485 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 486 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 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 ” 487 8 1 3 1 Detention Authority The legal authority to detain outside the context of 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 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 ” 488 operations and provision for transfer of captured persons to coalition partners who are 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 5 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” 489 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 ” 490 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 491 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 492 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 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 ” 493 8 2 3 Prohibition Against Biological or Medical Experiments Medical or biological 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 494 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 any other similar criteria ” AP II art 2 1 “This Protocol shall be applied without any adverse distinction founded 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 495 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 of the detainee or of others For example using earmuffs during transportation to protect a detainee’s hearing will 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 ” 496 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 8 5 2 Drinking Water Sufficient drinking water shall be supplied to detainees 57 8 5 3 Clothing As needed detainees shall be supplied with sufficient clothing underwear and footwear that is appropriate for the climate 58 8 6 GENERAL CONDITIONS OF DETENTION FACILITIES Detainees shall be afforded to the same extent as the local civilian population safeguards as regards health and hygiene and protection against the rigors of the climate and the dangers of the armed conflict 59 53 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 ” 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 497 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 be under the immediate supervision of women 66 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 498 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 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 ” 499 place under conditions consistent with generally accepted medical standards and controls 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 the number of which may be limited by a competent authority if it deems necessary 78 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 ” 500 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 ” 501 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 502 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 503 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 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 ” 504 8 14 3 Release When the Circumstances Justifying Detention Have Ceased to Exist 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 505 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 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 105277 § 2242 a Oct 21 1998 codified at 8 U S C § 1231 note “It shall be the policy of the United States not to expel extradite or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture regardless of whether the person is physically present in the United States ” One of the formal understandings of the United States made 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 320 322 506 8 15 1 Registration of Detainees The detaining authority should register detainees 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 115 111 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 507 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 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 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 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 ” 508 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 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 126 122 Refer to § 18 23 Theories of Individual Criminal Liability 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 ” 509 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 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 132 127 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 ” 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 ” 510 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 511 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 512 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 513 • 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 an inquiry concerning any alleged violation of the GPW 26 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 514 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 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 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 ” 515 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 ” 516 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 517 • 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 518 • 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 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” 519 The person need not have been captured to have “fallen” into the power of the enemy it 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 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 520 shall enjoy the protection of the GPW until such time as their status has been determined by a 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 521 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 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 522 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 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 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 ” 523 • date of birth 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 524 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 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 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 525 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 specifying certain acts which constitute grave breaches It should be emphasized that this protection must be 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 17578 “ A High-Altitude Experiments From about March 1942 to about August 1942 experiments were conducted at the Dachau concentration camp for the benefit of the German Air Force to investigate the limits of 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 526 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 photographs of detainees except for authorized purposes 117 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 527 9 5 4 Reprisals Prohibited Measures of reprisal against POWs are prohibited 118 9 5 5 No Adverse Distinction Based on Race Nationality Religion or Political Belief Taking into consideration the provisions of the GPW relating to rank and sex and subject to any privileged treatment that may be accorded to them by reason of their state of health age or professional qualifications all POWs shall be treated alike by the Detaining Power without any adverse distinction based on race nationality religious belief or political opinions or any 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 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 ” 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 528 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 529 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 139 133 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 530 9 7 2 Identity Documents At no time should POWs be without identity documents 140 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 147 140 GPW art 18 “At no time should prisoners of war be without identity documents ” 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 531 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 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 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 ” 532 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 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 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 ” 533 refuse to provide this information may not be coerced or exposed to any other unpleasant or 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 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 ” 534 Detaining Power shall take all suitable precautions to ensure their safety during evacuation and 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 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 3 3 2 What Precautions Are Feasible 535 long-range reconnaissance patrol need not make itself militarily ineffective by handing over all 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 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 536 all the requirements of the GPW 182 Transit or screening facilities must however provide 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 187 182 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 ” 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 537 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 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 197 188 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 ” 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 538 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 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 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 ” 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 539 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 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 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 ” 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 ” 540 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 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 218 210 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 ” 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 ” 541 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 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 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 ” 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 ” 542 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 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 233 226 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 ” 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 ” 543 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 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 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 ” 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 1990-91 298 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 ” IN INTERNATIONAL AND ENGLISH LAW 289 544 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 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 245 240 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 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 ” 545 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 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 9 13 2 Drinking Water Sufficient drinking water shall be supplied to POWs 253 9 13 3 Use of Tobacco The use of tobacco shall be permitted 254 The Detaining 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 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 ” 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 546 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 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 263 256 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 ” 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 ” 547 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 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 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 ” 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 ” 548 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 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 282 274 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 ” 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 ” 549 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 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 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 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 ” 550 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 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 298 292 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 ” 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 ” 551 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 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 303 299 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 ’” 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 ” 552 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 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 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 ” 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 ” 553 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 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 318 312 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 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 ” 554 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 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 325 319 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 ” 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 ” 555 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 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 333 326 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 ” 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 ” 556 “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 • 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 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 ” 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 557 loss 342 shall form the subject of arrangements between the Powers concerned at the close of hostilities 343 9 18 4 Supplementary Pay From the Power on Which the POWs Depend The Detaining Power shall accept for distribution as supplementary pay to POWs sums that the Power on which the POWs depend may forward to them on condition that the sums to be paid shall be the 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 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 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 ” 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 ” 558 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 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 355 350 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 ” 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 ” 559 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 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 362 355 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 ” 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 ” 560 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 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 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 ” 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 ” 561 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 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 376 370 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 ” 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 ” 562 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 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 “Similar devices” may be understood to include booby-traps and other devices that are similar to landmines 382 381 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 384 377 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 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 ” 563 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 • 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 391 385 Refer to § 5 27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country 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 564 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 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 397 390 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 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 ” 565 POWs must be allowed in the middle of the day’s work a rest of not less than one hour 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 401 398 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 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 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 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 ” 566 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 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 416 408 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 ” 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 ” 567 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 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 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 ” 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 ” 568 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 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 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 ” 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 ” 569 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 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 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 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 ” 570 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 “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 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 ” 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 ” 571 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 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 455 448 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 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 ” 572 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 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 461 456 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 ” 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 573 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 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 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 ” 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 ” 574 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 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 472 466 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 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 575 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 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 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 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 ” 576 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 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 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 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 ” 577 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 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 495 488 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 ” 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 578 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 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 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 ” 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 579 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 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 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 ” 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 580 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 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 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 ” 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 ” 581 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 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 525 518 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 ” 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 ” 582 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 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 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 ” 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 ” 583 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 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 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 584 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 ” 585 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 ” 586 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 587 • 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 judgment or sentences pronounced upon them 572 and 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 588 • 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 ” 589 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 ” 590 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 punishment in respect of their previous escape 595 589 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 ” 591 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 592 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 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 ” 593 of Article 91 of the GPW shall be liable only to a disciplinary punishment in respect of this act 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 prohibited 612 608 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 ” 594 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 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 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 595 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 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 596 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 634 628 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 ” 597 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 598 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 ” 599 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 655 649 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 ” 600 The duration of any single punishment shall in no case exceed thirty days 656 The 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 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 ” 601 receive the benefits of the GPW except insofar as these benefits are necessarily rendered 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 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 ” 602 entrusted to the POW Representative who will hand over to the infirmary the perishable goods 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 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 ” 603 such notification reaches the Protecting Power at the address previously indicated by the latter to 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 ” 604 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 605 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 ” 606 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 ” 607 • 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 608 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 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 ” 609 without daylight and in general any form of torture or cruelty are forbidden for POWs serving 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 ” 610 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 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 ” 611 the Detaining Power has satisfied itself of the willingness and ability of such receiving Power to 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 612 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 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 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 ” 613 In addition to this information information regarding transfers releases repatriations 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 755 747 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 614 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 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 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 ” 615 information that is asked for if the information is not in its possession 761 Responses to inquiries 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 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 ” 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 ” 616 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 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 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 ” 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 ” 617 74 of the GPW 774 and further so far as possible exemption from telegraphic charges or at 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 774 • 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 Refer to § 9 20 4 Exemptions From Postal and Shipping Charges 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 618 • death certificates of POWs 782 • 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 619 • 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 792 • 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 Refer to § 9 19 7 Labor Detachments 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 620 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 ” 621 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 817 811 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 622 9 34 1 Transmittal of Wills The Detaining Power has an obligation to help POWs with 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 824 818 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 ” 623 For example if a POW’s identity was not established before death and the identity cannot be 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 ” 624 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 625 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 ” 626 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 exchanges or on a unilateral basis 854 848 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 627 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 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 ” 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 628 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 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 ” 629 • those whose health has deteriorated so far as to fulfill the conditions for direct 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 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 ” 630 present themselves for examination by the Mixed Medical Commissions provided for in Article 112 of the GPW • 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 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 ” 631 110 of the GPW 874 For example able-bodied POWs who are voluntarily repatriated by the 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 878 874 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 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 ” 632 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 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 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 ” 633 expect that a State would release all of the POWs it holds without assurance that its own 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 634 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 which must be made so that repatriation may take place in conditions consistent with humanitarian rules and the 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 635 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 disciplinary proceedings or punishment 897 893 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 ” 636 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 904 897 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 ” 637 9 37 6 Costs of Repatriation at the Close of Hostilities The costs of repatriation of 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 ” 638 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 923 913 Refer to § 9 22 5 Posting of Convention and Camp Orders 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 ” 639 9 38 5 Canteen Profits The profits of the canteen should be disposed of in accordance 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 ” 640 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 641 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 ” 642 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 ” 643 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 644 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 645 • 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 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 ” 646 agreements 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 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 647 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 21 Refer to § 10 11 1 2 Sharing Information on the Location of Places of Internment § 10 11 1 3 Marking of Internment Camps 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 ” 648 Although the GC addresses the protection of civilians protected persons may include certain unprivileged belligerents Certain rights and privileges that protected persons who are 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 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 ” 649 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 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 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 650 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 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 651 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 ‘protected persons’ under GC if the State that represents them has not formally accepted the Convention’s burdens ” 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 652 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 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 ” 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 653 10 4 DEROGATION FOR SECURITY REASONS Certain rights and privileges of the GC that protected persons receive are subject to derogation for security reasons 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 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 ” 654 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 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 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 ” 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 ” 655 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 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 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 656 The GC’s prohibition against the use of coercion does not apply to those measures 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 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 ” 657 Distinctions are permitted and in some cases required for humanitarian reasons 83 For 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 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 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 ” 658 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 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 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 ” 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 659 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 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 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 660 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 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 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 ” 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 ” 661 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 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 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 ” 662 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 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 115 110 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 ” 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 ” 663 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 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 120 116 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 ” 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 ” 664 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 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 128 121 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 ” 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 ” 665 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 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 137 129 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 ” 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 ” 666 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 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 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 ” 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 667 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 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 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 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 ” 668 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 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 161 153 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 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 669 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 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 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 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 ” 670 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 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 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 ” 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 ” 671 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 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 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 ” 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 ” 672 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 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 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 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 ” 673 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 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 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 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 ” 674 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 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 ” 207 200 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 ” 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 675 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 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 213 208 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 ” 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 ” 676 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 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 10 13 2 Drinking Water Sufficient drinking water shall be supplied to internees 220 10 13 3 Use of Tobacco The use of tobacco shall be permitted 221 The Detaining 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 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 ” 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 677 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 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 230 223 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 ” 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 ” 678 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 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 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 ” 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 679 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 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 246 238 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 ” 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 680 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 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 255 246 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 ” 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 681 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 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 263 256 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 ” 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 ” 682 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 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 273 264 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 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 ” 683 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 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 280 274 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 ” 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 ” 684 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 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 288 281 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 ” 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 ” 685 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 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 296 288 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 ” 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 ” 686 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 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 305 297 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 ” 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 ” 687 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 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 312 306 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 ” 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 ” 688 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 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 319 313 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 ” 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 ” 689 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 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 326 320 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 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 690 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 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 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 ” 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 691 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 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 342 334 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 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 ” 692 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 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 348 343 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 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 693 • 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 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 356 349 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 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 694 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 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 364 357 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 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 ” 695 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 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 370 365 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 ” 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 ” 696 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 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 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 ” 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 ” 697 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 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 387 380 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 ” 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 ” 698 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 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 393 388 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 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 ” 699 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 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 398 394 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 ” 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 ” 700 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 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 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 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 ” 701 • 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 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’ 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 ” 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 ” 702 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 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 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 ” 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 ” 703 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 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 426 419 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 ” 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 ” 704 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 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 433 427 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 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 ” 705 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 proceedings 440 434 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 ” 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 ” 706 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 disciplinary punishments only 446 441 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 ” 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 ” 707 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 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 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 ” 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 ” 708 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 confinement before the trial should be at least as good as those afforded internees who are confined as part of disciplinary punishment 463 455 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 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 ” 709 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 • 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 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 ” 710 • 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 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 479 471 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 ” 478 GC art 124 “Internees undergoing punishment shall be enabled to keep themselves in a state of cleanliness ” 711 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 punishments may not be deprived of the right to make requests and complaints or to deal with 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 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 497 712 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 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 ” 713 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 ” 714 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 ” 715 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 ” 716 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 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 ” 717 Additional rules apply to the transfer of protected persons from the belligerent’s home 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 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 ” 718 movement by foot the Detaining Power must assess the fitness of each individual not the 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 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 ” 719 luggage the internees are unable to take with them in consequence of restrictions that may be 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 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 ” 720 • the name and address of the person designated by the protected person to be informed of 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 551 545 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 ” 721 All communications in writing made by any National Protected Person Information Bureau shall be authenticated by a signature or a seal 552 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 552 GC art 137 “All communications in writing made by any Bureau shall be authenticated by a signature or a seal ” 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 ” 722 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 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 564 558 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 ” 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 ” 723 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 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 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 ” 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 ” 724 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 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 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 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 725 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 • 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 588 580 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 726 • 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 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 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 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 ” 727 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 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 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 ” 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 ” 728 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 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 612 606 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 ” 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 ” 729 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 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 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 ” 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 ” 730 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 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 628 621 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 ” 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 ” 731 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 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 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 ” 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 732 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 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 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 ” 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 ” 733 nationals in enemy hands 644 644 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 ” 734 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 735 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 736 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 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 737 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 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 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 ” 738 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 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 17 Refer to § 11 19 Protection of Cultural Property During Occupation 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 739 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 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 22 Refer to § 1 6 3 3 International Covenant on Civil and Political Rights ICCPR 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 740 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 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 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 ” 741 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 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 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 ” 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 742 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 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 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 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 I 907 and such Regulations have not been applicable to the occupation of Germany since 5 743 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 11 2 1 Military Occupation as a Fact Military occupation is a question of fact 47 The legal consequences arising from the fact of occupation i e that this fact is the basis for 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 June I945 … 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 ” 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 744 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 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 51 Refer to § 11 5 Duty of the Occupying Power to Ensure Public Order and Safety 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 ” 745 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 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 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 ” 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 ” 746 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 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 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 ” 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 747 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 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 67 Refer to § 11 2 4 Proclamation of Occupation 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 748 However there is no specific legal requirement that the Occupying Power issue a proclamation of military occupation 74 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 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 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 749 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 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 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 … ” 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 750 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 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 84 • 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 Refer to § 11 2 2 3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory 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 751 • 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 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 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 ” 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 752 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 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 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 ” 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 753 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 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 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 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 ” 754 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 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 105 101 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 ” 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 ” 755 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 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 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 ” 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 756 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 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 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 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 ” 757 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 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 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 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 758 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 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 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 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 ” 759 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 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 138 131 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 ” 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 760 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 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 145 139 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 ” 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 761 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 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 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 ” 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 762 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 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 158 152 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 ’” 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 763 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 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 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 ” 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 764 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 • 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 168 163 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 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 765 • 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 • 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 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 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 ” 766 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 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 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 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 767 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 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 187 180 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 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 768 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 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 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 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 ” 769 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 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 198 192 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 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 ” 770 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 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 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 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 ” 771 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 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 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 ” 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 ” 772 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 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 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 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 ” 773 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 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 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 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 ” 774 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 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 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 ” 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 ” 775 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 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 233 227 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 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 776 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 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 237 234 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 ” 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 777 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 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 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 ” 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 ” 778 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 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 249 243 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 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 779 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 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 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 ” 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 ” 780 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 necessary foodstuffs medical stores and other articles if the resources of the occupied territory 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 ” 781 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 adoption and application of the prophylactic and preventive measures necessary to combat 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 ” 782 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 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 783 under the provisions of Articles 20 and 21 of the GC 272 This recognition also allows such 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 278 272 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 ” 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 ” 784 Religious assistance addressed by the GC however does not include activities that are a 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 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 ” 785 in cases of urgent necessity in the interests of the population of the occupied territory and with 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 ” 786 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 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 ” 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 ” 787 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 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 11 18 1 Prohibition Against Pillage in Occupied Territory Pillage is forbidden 297 In addition to this specific prohibition in the context of occupied territory pillage is prohibited as a general matter 298 11 18 2 Seizure or Destruction of Property During Occupation – Application of 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 302 296 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 ” 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 ” 788 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 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 309 303 Refer to § 5 4 2 Decisions Must Be Made in Good Faith and Based on Information Available at the Time 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 789 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 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 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 ” 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 ” 790 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 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 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 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 ” 791 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 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 325 321 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 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 792 The term usufruct means literally “to use the fruit ” 326 The Occupying Power may use 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 331 326 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 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 793 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 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 338 332 Refer to § 11 18 6 2 Seizure of Private Property Susceptible to Direct Military Use 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 794 11 18 6 2 Seizure of Private Property Susceptible to Direct Military Use 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 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 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 ” 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 795 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 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 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 ” 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 796 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 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 354 349 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 ” 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 ” 797 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 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 362 355 Refer to § 11 14 2 Limitation on Requisition of Food and Medical Supplies 356 Refer to § 11 15 5 Requisition of Civilian Hospitals 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 ” 798 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 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 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 ” 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 799 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 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 373 368 Refer to § 5 18 9 1 Transport Under Special Protection 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 ” 800 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 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 country 378 because it prohibits compulsory service in any military operation 379 374 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 ” 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 ” 801 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 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 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 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 802 • 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 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 388 384 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 ” 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 803 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 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 393 389 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 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 ” 804 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 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 399 394 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 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 ” 805 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 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 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 ” 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 806 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 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 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 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 ” 807 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 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 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 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 ” 808 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 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 423 418 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 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 ” 809 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 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 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 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 ” 810 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 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 436 431 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 ” 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 811 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 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 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 ” 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 ” 812 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 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 450 444 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 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 813 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 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 455 451 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 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 814 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 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 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 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 ” 815 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 of occupation currency may be necessary to counteract the enemy State’s practice of engaging in economic sabotage 464 460 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 ” 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 81-82 816 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 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 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 ” 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 ” 817 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 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 475 469 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 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 818 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 a profit from the operation of the business the legal owner must be indemnified to avoid a prohibited confiscation of private property 481 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 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 ” 819 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 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 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 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 ” 820 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 490 488 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 ” 821 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 822 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 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 823 Under the GC however protected persons in a belligerent’s home country or in territory 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 824 • 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 14 Refer to § 18 15 2 Appointment of a Protecting Power 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 825 • compacts between enemies such as truces and capitulations shall be faithfully adhered 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’ ” 826 • 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 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 ” 827 flag especially where the display of the white flag was not authorized by the individual or 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 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 828 information or with the purpose of obtaining time to effect a withdrawal secure reinforcements 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 purpose of communicating or negotiating openly and directly with the enemy commander 47 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 ” 829 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 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 ” 830 include for example a driver and communications personnel and they would take similar 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 5 7 Prohibition Against Declaring That No Quarter Be Given § 5 10 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 831 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 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 ” Refer to § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives 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 ” 832 Such acts of treachery include sabotage or the secret gathering of information about the 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 ” 833 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 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 ” 834 The terms military passport and safe-conduct have to some degree been used 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 ” 835 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 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 ” 836 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 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 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 ” 837 Safeguards have been used to protect cultural property or other civilian property or 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 110 102 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 ” 838 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 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 839 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 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 ” 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 ” 840 communicate with his or her superiors under the law of war he or she may assume that he or she 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 ” 841 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 842 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 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 10 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 10 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 843 A commander’s competence to capitulate is limited to forces under his or her 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 ” 844 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 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 ” 845 by higher authority the other belligerent may denounce the capitulation and resume hostilities 150 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 156 150 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 ” 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 846 12 11 ARMISTICES AND OTHER CEASE-FIRE AGREEMENTS 12 11 1 Definition of Armistice An armistice may also be described as the cessation of 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 847 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 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 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 ” 848 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 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 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 ” 849 for the purpose of reference should differences of opinion arise Armistice agreements should be 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 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 ” 850 provided always that the enemy is warned within the time agreed upon in accordance with the 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 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 ” 851 • 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 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 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 852 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 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 853 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 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 ” 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 854 released or exchanged specific provisions in this regard should be made in the armistice agreement 198 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 203 198 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 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 ” 855 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 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 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 ” 856 • the utilization of the occasion to withdraw forces from an unfavorable position commanded by the enemy 208 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 212 208 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 ” 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 ” 857 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 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 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 ” 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 ” 858 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 with the general principles of international law governing armistices 220 218 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 ” 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 ” 859 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 10810 United Nations Convention on the Law of the Sea 108th Congress Second Session 170 172 Mar 11 2004 “It should also be noted that nothing in the Convention restricts the inherent right of individual or collective selfdefense or rights during armed conflict and the administration is recommending that the United States express such 860 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 ” 861 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 ” 862 • 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 863 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 ” 864 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 ” 865 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 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 866 13 2 3 1 High Seas Freedoms States may exercise certain freedoms on the high 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 867 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 Punish infringement of the above regulations committed within its territory or territorial sea ” Consider LOS 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 ” 868 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 869 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 including resisting attacks by enemy forces 64 55 Refer to § 5 5 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 - 870 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 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 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 10 4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds Sickness or Shipwreck 871 at sea by or from aircraft but do not include for example combatant personnel engaged in attacks 69 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 69 • 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 Refer to § 7 3 1 2 Shipwrecked 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 10 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 ” 872 • taking to lifeboats 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 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 ” 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 7 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 873 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 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 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 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 ” 874 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 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 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 90 Refer to § 5 7 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 ” 875 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 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 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 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 5 Rules on Conducting Assaults Bombardments and Other Attacks 95 Refer to § 5 12 Proportionality in Conducting Attacks 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 876 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 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 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 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 877 13 6 2 1 Cartel Vessels Vessels and aircraft designated for and engaged in the exchange of POWs are privileged from capture 104 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 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 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 878 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 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 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 ” 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 879 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 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 120 115 Refer to § 13 5 1 3 Destruction of Captured Enemy Merchant Vessels 116 Refer to § 13 5 2 Attack of Enemy Merchant Vessels 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 880 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 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 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 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 881 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 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 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 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 ” 882 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 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 135 130 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 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 03220 0E ” 134 For example Woodrow Wilson Executive Order Establishing Defensive Sea Areas No 2584 Apr 5 1917 reprinted in 12 AJIL SUPPLEMENT OFFICIAL DOCUMENTS 13 16 1918 “I WOODROW WILSON President of 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 883 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 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 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 ” 136 John H McNeil Neutral Rights and Maritime Sanctions The Effects of Two Gulf Wars 31 VIRGINIA JOURNAL 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 ” OF INTERNATIONAL LAW 631 137 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 884 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 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 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 ” 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 114M 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 ” 885 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 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 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 ” 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 Department of State Legal Adviser 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 886 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 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 155 150 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 152 See e g Legal and Practical Consequences of a Blockade of Cuba Oct 19 1962 1 SUPPLEMENTAL OPINIONS 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 ” OF THE OFFICE OF LEGAL COUNSEL 486 153 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 887 The form of the notification is not material so long as it is effective and a variety of methods may be used 156 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 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 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 ’” 888 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 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 167 161 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 ” 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 889 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 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 172 168 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 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 890 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 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 178 172 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 ¶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 ” 891 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 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 183 179 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 ” 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 892 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 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 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 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 893 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 • 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 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 ” 894 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 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 201 195 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 ” 196 Refer to § 5 3 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 895 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 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 208 202 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 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 896 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 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 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 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 ” 897 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 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 221 216 HAGUE VIII art 1 “It is forbidden … 3 To use torpedoes which do not become harmless when they have missed their mark ” 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 898 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 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 226 222 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 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 899 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 900 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 ” 901 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 ” 902 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 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 903 references to aspects of war in the air such as protection for medical aircraft in the 1949 Geneva 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 includes 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 904 • 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 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 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 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 905 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 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 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 906 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 are provided A flight information region normally encompasses substantial areas of international airspace and does 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 907 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 ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory Accordingly 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 908 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 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 909 necessary for an aircraft to constitute a military objective the status of an aircraft as State aircraft 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 7 Military Objectives 61 1944 CHICAGO CONVENTION art 17 “Aircraft have the nationality of the State in which they are registered ” 62 Refer to § 15 14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked Civil Aircraft 63 See e g 2013 GERMAN MANUAL ¶1103 “Only military aircraft are entitled to exercise belligerent rights and use military force in fighting military objectives of an adversary 14 13 16 para 1 ” 2006 AUSTRALIAN MANUAL ¶814 “ O nly military aircraft can exercise the combat rights of a belligerent Examples of such rights include attacking military objectives and overflying enemy territory ” 2004 UK MANUAL ¶12 34 “Only military aircraft may carry out attacks ” 2001 CANADIAN MANUAL ¶704 3 “Civil aircraft and state aircraft that are not military aircraft for example police or customs officials may not engage in hostilities ” 1976 AIR FORCE PAMPHLET 110-31 ¶2-6d “Only military aircraft may exercise such rights of belligerents as attacking and destroying military objectives or transporting troops in the adversary’s national airspace or behind its lines ” Consider Commission 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 7 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 910 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 ” 911 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 the risk of harm from attacks against military objectives 78 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 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives 912 14 4 3 Downed Aircrew There are a number of law of war issues related to downed 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 79 Refer to § 5 10 5 Persons Parachuting From an Aircraft in Distress 80 Refer to § 5 10 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 913 If downed aircrew fall into the power of the enemy during international armed conflict 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 914 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 on board such aircraft may be captured outside neutral airspace 102 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 915 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 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 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 916 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 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 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 5 2 Overview of Rules in Conducting Attacks 113 Refer to § 7 14 Military Medical Aircraft § 7 19 Civilian Medical Aircraft 114 Refer to § 5 10 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 4 2 Decisions Must Be Made in Good Faith and Based on Information Available at the Time 917 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 14950 “ T he United States argued that the Soviet Union had violated both Article 3 d and customary international legal norms in shooting down KAL 007 … We understand that the United States has not yet ratified Article 3 bis There is however support for the view that the principle it announced is declaratory of customary 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 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 ” 918 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 terrorism piracy or like threats • when incorporated into or assisting the enemy’s military intelligence system 126 or 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 7 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 919 • 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 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 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 5 Rules on Conducting Assaults Bombardments and Other Attacks 128 Refer to § 5 12 Proportionality in Conducting Attacks 129 Refer to § 5 5 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” 133 Refer to § 6 4 Prohibited Weapons § 5 3 3 3 Requirements to Take Precautions Regarding Specific Weapons 920 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 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 avoid attack 139 On the other hand it may be difficult for enemy combatants on the ground to 134 Refer to § 5 11 3 Selecting Weapons Weaponeering 135 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 136 Refer to § 5 10 Persons Placed Hors de Combat 137 Refer to § 5 10 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 ” 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 ” 921 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 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 144 140 Refer to § 5 4 2 Decisions Must Be Made in Good Faith and Based on Information Available at the Time 141 Refer to § 5 10 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 ” 144 Refer to § 14 2 2 Vertical Boundary Between Airspace and Outer Space 922 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 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 152 145 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 ” 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 187 923 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 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 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 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 ” 924 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 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 160 156 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 ” 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 925 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 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 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 ” 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 ” 926 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 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 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 19611963 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 ” 171 Refer to § 14 10 3 2 Restrictions on Military Activities on the Moon and Other Celestial Bodies 927 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 174 172 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 ” 928 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 929 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 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 930 impartiality to which neutrals have traditionally been required to adhere 10 Such departure from 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 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 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 931 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 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 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 ” 932 addition a State may have an obligation to notify other States of its domestic neutrality 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 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 ” 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 933 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 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 934 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 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 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 ” 935 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 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 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 ” 936 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 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 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 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 ” 937 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 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 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 ” 938 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 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 51 Refer to § 1 11 5 5 Right of Collective Self-Defense 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 ” 939 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 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 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 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 940 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 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 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 ” 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 ” 941 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 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 70 Refer to § 15 5 1 Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a Belligerent From Neutral Territory 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 942 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 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 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 ” 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 ” 943 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 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 79 Refer to § 15 2 1 1 Application of the Law of Neutrality and the National Policies of States Towards an Armed Conflict 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 944 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 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 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 ” 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 ” 945 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 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 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 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 946 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 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 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 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 ” 947 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 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 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 ” 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 ” 948 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 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 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 ” 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 ” 949 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 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 120 113 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 ” 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 ” 950 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 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 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 ” 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 ” 951 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 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 132 125 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 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 ” 952 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 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 137 133 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 ” 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 ” 953 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 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 145 138 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 ” 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 954 • 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 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 146 Refer to § 13 2 3 3 Exclusive Economic Zones EEZs 147 Refer to § 13 2 3 4 High Seas 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 ” 955 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 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 158 152 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” 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 ” 956 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 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 163 158 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 ” 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 957 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 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 sea 167 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 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 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 ” 958 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 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 174 170 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 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 ” 959 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 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 179 175 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 ” 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 ” 960 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 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 187 180 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 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 ” 961 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 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 194 188 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 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 962 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 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 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 ” 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 ” 963 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 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 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 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 ” 964 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 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 211 206 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 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 ” 965 The right of angary does not apply to property of neutral ownership that has acquired enemy character 212 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 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 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 ” 966 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 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 222 217 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 ” 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 967 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 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 226 223 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 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 ” 968 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 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 232 227 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 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 969 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 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 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 ” 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 ” 970 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 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 240 237 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 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 ” 971 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 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 245 241 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 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 972 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 • 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 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 ” 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 973 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 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 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 ” 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 ” 974 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 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 262 258 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 ” 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 975 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 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 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 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 ” 976 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 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 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 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 ” 977 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 • 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 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 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 978 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 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 286 281 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 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 979 • 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 • 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 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 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 ” 980 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 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 301 294 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 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 981 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 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 309 302 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 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 982 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 • 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 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 ” 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 ” 983 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 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 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 ” 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 ” 984 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 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 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 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 ” 985 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 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 330 325 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 ” 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 986 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 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 335 331 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 ” 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 987 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 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 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 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 ” 988 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 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 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 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 ” 989 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 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 353 348 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 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 990 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 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 359 354 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 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 991 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 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 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 ” 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 992 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 military operations 372 366 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 372 Refer to § 15 16 2 3 Wounded and Sick Disembarked From Belligerent Medical Aircraft 993 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 459 994 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 ” 995 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 996 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 5 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 997 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 998 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 999 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 ” 1000 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 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 1001 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 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 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 1002 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 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 42 Refer to § 15 5 3 1 Use of Neutral Facilities by Belligerents Not Prohibited 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 ” 1003 conducting attacks must be applied to those cyber operations 45 For example such operations 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 proportionality rule 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 the proportionality rule 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 losses need not be considered in applying the proportionality rule 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 45 Refer to § 5 5 Rules on Conducting Assaults Bombardments and Other Attacks 46 Refer to § 5 6 Discrimination in Conducting Attacks § 5 12 Proportionality in Conducting Attacks 47 Refer to § 5 7 Military Objectives 48 Refer to § 5 17 2 Enemy Property – Military Necessity Standard 49 Refer to § 5 12 Proportionality in Conducting Attacks 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 2 Types of Harm – Loss of Life Injury and Damage 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 1004 addition the economic harms in the belligerent 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 proportionality rule 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 proportionality rule 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 2 Types of Harm – Loss of Life Injury and Damage 54 Refer to § 16 5 3 Duty to Take Feasible Precautions and Cyber Operations 55 Refer to § 5 5 Rules on Conducting Assaults Bombardments and Other Attacks 56 Refer to § 5 3 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 1005 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 proportionality rule 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 3 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 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 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 3 Selecting Weapons Weaponeering 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 1006 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 1007 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 9 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 1008 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 ” 1009 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 1010 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 ” 1011 “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 1012 “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 ” 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 15 16 Refer to § 17 2 2 1 Use of Law of War Principles to Discern Rules Applicable to NIAC 1013 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 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 1014 international armed conflict Certain guidelines may be helpful in assessing customary 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 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 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 ” 28 1015 law of war has developed 29 The discretion afforded States in applying law of war rules to noninternational 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 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 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 ” 1016 • 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 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 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 … ” 1017 private individuals ” 40 Similarly the Convention Against Torture recognizes that “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” 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 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 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 1018 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 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 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 ” 1019 conflict 52 Similarly States negotiated and adopted AP I and AP II at the same diplomatic 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 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 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 ” 1020 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 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 54 Refer to § 8 1 4 4 Analogous GPW and GC Provisions 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 1021 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 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 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 ” 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 1022 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 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 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 ” 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 1023 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 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 ” 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 1024 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 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 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 1025 jurisdiction with respect to the actions of such State armed forces in a non-international armed conflict 77 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 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 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 1026 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 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 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 1027 nationality 85 The procedures of such courts may deviate from those applicable during ordinary 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 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 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 ” 1028 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 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 89 Refer to § 17 7 Rules on Conducting Attacks in NIAC 90 Refer to § 5 5 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 ” 1029 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 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 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 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 1030 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 noninternational 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 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 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 ” 1031 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 without any adverse distinction 100 In addition the following prohibitions apply 17 6 1 Prohibition on Declaring That No Quarter Be Given It is prohibited to order that there shall be no survivors 101 17 6 2 Prohibition on the Taking of Hostages The taking of hostages is prohibited 102 17 6 3 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations It is prohibited to use civilians persons placed hors de combat or other protected persons to shield favor or impede military operations 103 17 6 4 Prohibition on Pillage Pillage is prohibited 104 There is an affirmative obligation to take measures to protect the wounded sick and shipwrecked from pillage and the dead 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 106 100 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 5 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 1032 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 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 107 • 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 conducting attacks to avoid incidental harm to civilians and civilian objects 114 Refer to § 5 26 3 1 Prohibition on Offering Rewards for Enemy Persons Dead or Alive 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 6 Discrimination in Conducting Attacks 112 Refer to § 17 16 2 Improper Use of the Distinctive Emblem 113 Refer to § 5 12 Proportionality in Conducting Attacks 1033 • In conducting attacks combatants must assess in good faith the information that is 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 distinction and proportionality rules 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 120 114 Refer to § 5 11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 115 Refer to § 5 4 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 1034 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 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 civilians involved or imperative military reasons so demand 126 Should such displacements have international conflicts where such facilities are more likely to become an object of military attack therefore is very important ” 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 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 ” FROM THE PRESIDENT TRANSMITTING AP II 126 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 ” 1035 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 127 Civilians shall not be compelled to leave their own territory for reasons connected with the conflict 128 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 129 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 130 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 131 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 127 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 ” 128 Consider AP II art 17 2 “Civilians shall not be compelled to leave their own territory for reasons connected with the conflict ” 129 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 ” 130 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 ” 131 Refer to § 5 16 Prohibition on Using Protected Persons and Objects to Shield Favor or Impede Military Operations 1036 population such as foodstuffs agricultural areas for the production of foodstuffs crops livestock drinking water installations and supplies and irrigation works 132 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 133 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 134 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 135 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 136 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 137 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 138 All appropriate steps shall be taken to facilitate the reunion of families temporarily separated 139 132 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 ” 133 Refer to § 5 20 1 Starvation – Distinction 134 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 ” 135 Refer to § 5 20 2 Starvation – Proportionality 136 Refer to § 5 20 2 Starvation – Proportionality 137 Consider AP II art 4 3 “Children shall be provided with the care and aid they require … ” 138 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 ” 1037 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 140 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 141 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 142 Children who are captured and who have taken a direct part in hostilities remain entitled to the special protections afforded to children 143 The use or recruitment of child soldiers is an offense in U S law 144 The United States has additional obligations as a Party to the Child Soldiers Protocol 145 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 146 139 Consider AP II art 4 3 b “all appropriate steps shall be taken to facilitate the reunion of families temporarily separated ” 140 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 ” 141 Refer to § 8 16 2 4 Limitations on the Death Penalty 142 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 143 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 ” 144 Refer to § 4 20 5 1 U S Offense of Recruiting or Using Child Soldiers 145 Refer to § 4 20 5 Child Soldiers § 17 2 1 2 Implicit Application of Treaty Provisions to Situations in NIAC 146 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 ” 1038 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 147 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 148 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 149 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 150 Additional restrictions apply with respect to POWs retained personnel protected persons in the home territory of a belligerent and protected persons in occupied territory 151 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 152 For example in contrast to POWs captured insurgents who 147 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 ” 148 Refer to § 5 18 5 Refraining From Any Act of Hostility 149 Refer to § 5 18 3 Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or Damage 150 Refer to § 5 27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country 151 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 152 Refer to § 4 5 2 4 Draftees 1039 are nationals of that State could be required to serve in that State’s armed forces or to take part in operations directed against their former comrades 153 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 154 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 155 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 156 153 For example Donald A MacCuish and Spencer C Tucker Pseudoforces in ENCYCLOPEDIA OF INSURGENCY 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 ” AND COUNTERINSURGENCY 154 Refer to § 8 2 Humane Treatment of Detainees § 8 2 4 Threats to Commit Inhumane Treatment 155 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 ” 156 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 ” 1040 17 13 WEAPONS IN NIAC 17 13 1 Prohibited Weapons in NIAC The use of the following types of weapons is prohibited during non-international armed conflict • weapons calculated to cause superfluous injury 157 • inherently indiscriminate weapons 158 • poison poisoned weapons poisonous gases and other chemical weapons 159 • biological weapons 160 • weapons that injure by fragments that are non-detectable by X-rays 161 • certain types of mines booby-traps and other devices 162 and • blinding lasers 163 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 164 • incendiary weapons 165 • laser weapons except blinding lasers 166 and • explosive ordnance 167 157 Refer to § 6 6 Weapons Calculated to Cause Superfluous Injury 158 Refer to § 6 7 Inherently Indiscriminate Weapons 159 Refer to § 6 8 Poison Poisoned Weapons Poisonous Gases and Other Chemical Weapons 160 Refer to § 6 9 Biological Weapons 161 Refer to § 6 11 Weapons Injuring by Fragments Not Detectable by X-Rays 162 Refer to § 6 12 4 Prohibited Classes of Mines Booby-Traps and Other Devices 163 Refer to § 6 15 1 Prohibition on “Blinding Laser” Weapons 164 Refer to § 6 12 Landmines Booby-Traps and Other Devices 165 Refer to § 6 14 Incendiary Weapons 166 Refer to § 6 15 2 Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent Blindness 167 Refer to § 6 19 Explosive Ordnance 1041 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 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 168 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 169 • persons who have surrendered as a consequence of their health and 170 • 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 171 Of course any person who commits hostile acts or attempts to evade capture forfeits protection as someone who is placed hors de combat 172 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 173 Certain persons however are deemed to have accepted the risk of harm due to deliberate proximity to military objectives thus expected incidental harm to such persons would be understood not to prohibit attacks under the proportionality rule even if such persons become wounded sick or shipwrecked 174 168 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 ” 169 Refer to § 5 10 4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds Sickness or Shipwreck 170 Refer to § 5 10 3 Persons Who Have Surrendered 171 Compare § 7 3 1 2 Shipwrecked 172 Refer to § 5 10 Persons Placed Hors de Combat 173 Compare § 7 3 3 Meaning of “Respect and Protection” of the Wounded Sick and Shipwrecked 174 Compare § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 1042 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 175 Booby-trapping the wounded or sick is expressly prohibited 176 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 177 There shall be no distinction among them founded on any grounds other than medical ones 178 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 179 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 180 17 14 3 1 Mistreatment and Booby-Trapping of the Dead Prohibited The mistreatment of the dead is prohibited 181 In addition the dead may not be booby-trapped 182 175 Compare § 7 3 3 2 Search and Other Security Measures Not Prohibited § 7 3 3 3 Capture of Wounded Sick and Shipwrecked Not Prohibited 176 Refer to § 6 12 4 9 Certain Types of Prohibited Booby-Traps and Other Devices 177 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 ” 178 Consider AP II art 7 2 “There shall be no distinction among them founded on any grounds other than medical ones ” 179 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 ” 180 Compare § 7 4 4 Practical Limitations on the Obligation to Search for Collect and Take Measures to Protect the Wounded Sick and Shipwrecked 181 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 1043 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 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 183 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 184 For example persons who intermittently take a direct part in hostilities are not considered medical and religious personnel 185 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 186 Certain medical and religious personnel however are deemed to have accepted the risk of harm due to their deliberate proximity to military objectives thus expected incidental harm to such persons would be understood not to prohibit attacks under the proportionality rule 187 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 188 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 189 The protection to which medical units and transports are entitled shall not cease unless they are used to commit 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 182 Refer to § 6 12 4 9 Certain Types of Prohibited Booby-Traps and Other Devices 183 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 ” 184 Refer to § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 185 Refer to § 5 9 3 “Taking a Direct Part in in Hostilities” 186 Compare § 7 8 2 Meaning of “Respect and Protection” of Medical and Religious Personnel 187 Compare § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 188 Compare § 7 8 2 2 Search and Other Security Measures Not Prohibited § 7 8 2 3 Capture Not Prohibited 189 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 ” 1044 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 190 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 191 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 192 Certain medical units and transports however are deemed to have accepted the risk of harm due to their deliberate proximity to military objectives thus expected incidental harm to such medical units and transports would be understood not to prohibit attacks under the proportionality rule 193 The respect and protection afforded medical units and facilities does not immunize them from search or capture 194 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 195 These rules also apply to the distinctive emblem of the red crystal 196 190 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 ” 191 Refer to § 4 9 2 3 Exclusively Engaged in Humanitarian Duties 192 Compare § 7 10 1 Meaning of “Respect and Protection” of Military Medical Units and Facilities 193 Compare § 5 12 3 2 Harm to Certain Individuals Who May Be Employed In or On Military Objectives § 7 12 2 5 Acceptance of the Risk From Proximity to Combat Operations 194 Compare § 7 10 1 2 Search Not Prohibited § 7 10 1 3 Capture Not Prohibited 195 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 ” 196 Refer to § 7 15 1 3 Red Crystal § 17 2 1 1 Treaties That Have Provisions That Explicitly Apply to NIAC 1045 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 197 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 198 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 199 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 200 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 201 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 202 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 197 Compare § 7 15 2 1 Removal or Obscuration of the Distinctive Emblem 198 Refer to § 5 3 3 2 What Precautions Are Feasible 199 Refer to § 5 24 Improper Use of Certain Signs 200 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 ” 201 Refer to § 8 1 3 1 Detention Authority 202 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 ” 1046 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 203 Although detainees are afforded humane treatment they do not receive POW status 204 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 205 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 206 203 Refer to § 8 1 4 1 Common Article 3 of the 1949 Geneva Conventions 204 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 ” 205 Refer to § 8 1 1 Overview of Detention Rules in This Manual and the Scope of Chapter VIII 206 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 1047 These are closely analogous to the duties that neutral States have under the law of neutrality to refrain from supporting military operations against belligerents 207 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 208 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 209 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 210 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 211 In general States must obtain the consent of a territorial State before conducting military operations against a non-State armed group in that State’s territory 212 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 ” 207 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 ” 208 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 ” 209 Refer to § 17 18 2 Duty of Belligerent States to Respect the Sovereignty of Other States 210 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 211 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 1048 The consent of the territorial State however is not necessary when the U N Security Council has authorized the military operations 213 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 214 Other States have also expressed this view 215 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 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 ” 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 “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 ” 213 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 214 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 Department of State Legal Adviser 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 1049 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 216 “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 ” 215 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 ” 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 “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 ” 1050 17 18 3 States’ Support to Other States in Hostilities Against Non-State Armed Groups 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 217 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 218 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 217 Refer to § 3 4 When Jus in Bello Rules Apply 218 Refer to § 4 18 5 Private Persons Who Engage in Hostilities and the Law of War 1051 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 1052 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 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 1053 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 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 7 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 8 18 1 2 4 General Treaty Obligations to Take Appropriate Actions to Implement 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 9 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 ” 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 AP III art 1 1 “The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances ” 8 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 ” 9 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 ” 1054 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 10 As another example States may establish international criminal tribunals to try enemy belligerents 11 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 the strong self-interest of everyone subject to the law of war 12 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 10 Refer to § 18 14 International Mechanisms to Investigate Alleged Law of War Violations 11 Refer to § 18 20 1 Post-World War II International Military Tribunals 12 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 ” 1055 principles and rules are consistent with military doctrines for a profession of arms that are the basis for effective combat operations 13 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 14 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 15 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 16 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 17 For example humane treatment of enemy persons detained by U S forces can encourage enemy forces to treat detained U S persons humanely 18 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 19 13 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 ” 14 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 ” 15 Compare § 4 18 3 Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status 16 Refer to § 3 6 Reciprocity and Law of War Rules 17 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 ” 18 Refer to § 9 2 5 Reciprocity in the Treatment of POWs 19 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 ” 1056 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 20 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 21 This duty of individual service members rests within a broader framework of law of war implementation by the U S armed forces 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 Similarly individual service members are not expected to be experts in the law of war service members should ask questions through appropriate channels and consult with the command legal adviser on issues relating to the law of war In addition law of war requirements have also been incorporated into domestic law policy regulations and orders 22 Moreover in most cases the requirements and standards in applicable policies regulations and orders will exceed the requirements of the law of war 23 Thus 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 24 20 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 ” 21 Refer to § 1 10 2 Force of the Law of War Under U S Domestic Law 22 Refer to § 18 7 Instructions Regulations and Procedures to Implement and Enforce the Law of War 23 Refer to § 18 7 2 3 Setting Higher Standards as a Matter of Policy 24 Refer to § 18 6 2 Special Instruction or Training 1057 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 25 Similarly orders to kill defenseless persons who have submitted to and are under effective physical control would also be clearly illegal 26 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 27 25 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 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 ” 26 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 ” 27 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 … ” 1058 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 28 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 29 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 30 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 31 28 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 understandable Don’t put your subordinates in the position where they may think you are giving a criminal order ” For example Prosecutor v Gotovina and Markač ICTY Appellate Chamber IT-06-09-A Judgment ¶77 Nov 16 2012 “More specifically the Trial Chamber relied on the Impact Analysis to discount Witness Rajčić’s assertion that the 2 August Order called for shelling only lawful military targets In addition neither Witness Konings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction 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 ” 29 30 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 31 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 1059 For example commanders have obligations to take appropriate measures to prevent pillage and to protect the wounded sick and shipwrecked within their control 32 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 33 One of the requirements for armed forces to receive the privileges of combatant status is that they operate under a responsible command 34 In addition law of war treaties have specified that commanders must take appropriate measures to ensure that the provisions of those treaties are observed 35 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 36 Under international law commanders have discretion about how to implement and enforce their law of war obligations 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 ” 32 Refer to § 5 17 4 Pillage Prohibited § 7 4 Search Collection and Affirmative Protection of the Wounded Sick Shipwrecked and Dead 33 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 ” 34 Refer to § 4 6 3 Being Commanded by a Person Responsible for His or Her Subordinates 35 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 ” 36 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 1060 there is no absolute or automatic requirement under international law to punish particular offenders within their armed forces in a specific way 37 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 their command or against persons to whom they have a legal duty to protect 38 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 39 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 40 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 41 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 37 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 ” 38 Refer to § 18 13 National Investigations of Alleged Violations of the Law of War 39 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 ” 40 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 ” 41 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 ” 1061 components are reviewed by legal advisers to ensure their consistency with the law of war and DoD policy on the law of war 42 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 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 43 18 5 1 3 Review of the Acquisition of Weapons DoD policy has required the legal review of the intended acquisition of weapons 44 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 45 The DoD Law of War 42 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 ” 43 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 ” 44 Refer to § 6 2 DoD Policy of Reviewing the Legality of Weapons 45 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 1062 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 46 This includes the preparation review and updating of 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 47 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 48 Similarly the GWS and GWS-Sea emphasize that the armed fighting forces medical personnel and chaplains should know the principles of those treaties 49 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 ” 46 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 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 ” 47 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 ” 48 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 ” 49 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 1063 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 50 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 51 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 52 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 53 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 known to the entire population in particular to the armed fighting forces the medical personnel and the chaplains ” GWS-SEA art 48 same 50 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 ” 51 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 ” 52 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 ” 53 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 ” 1064 policy has required as a general matter that personnel are trained in the law of war commensurate with their duties 54 Training may involve not only classroom instruction or individualized study but also for example unit training exercises 55 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 56 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 57 54 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 ” 55 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 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 ” 56 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 ” 57 Refer to § 18 7 2 Reasons for Implementation Through Instructions Regulations and Procedures 1065 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 58 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 CCW Amended Mines Protocol 59 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 60 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 61 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 62 58 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 ” 59 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 ” 60 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 ” 61 Refer to § 19 3 Lieber Code 62 For example DOD DIRECTIVE 2310 01E DoD Detainee Program Aug 19 2014 DOD DIRECTIVE 2310 01E The Department of Defense Detainee Program Sept 5 2006 1997 MULTI-SERVICE DETENTION REGULATION §11 b “This regulation implements international law both customary and codified relating to EPW RP CI and ODs which includes those persons held during military operations other than war The principal treaties relevant to 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 1066 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 63 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 to Hague IV 64 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 65 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 66 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 67 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 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 63 Refer to § 18 1 2 National Obligations to Implement and Enforce the Law of War 64 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 ” 65 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 66 Refer to § 18 1 2 1 General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty – 1949 Geneva Conventions 67 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 ” 1067 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 68 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 69 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 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 70 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 71 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 72 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 68 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 ” 69 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 ” 70 Refer to § 1 10 1 3 Predominately Inter-State Nature of International Obligations 71 Refer to § 1 10 2 1 Force of Self-Executing and Non-Self-Executing Treaties Under U S Domestic Law 72 Refer to § 1 6 5 Rules of Engagement ROE 1068 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 73 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 74 Conduct that violates the law of war has often been punished through this mechanism 75 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 76 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 73 Refer to § 18 6 2 Special Instruction or Training 74 Refer to § 18 19 3 1 Uniform Code of Military Justice Offenses 75 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 ” 76 Refer to § 18 5 1 1 Review of Plans Policies Directives and Rules of Engagement by Legal Advisers 1069 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 77 In particular States are responsible for the treatment accorded protected persons under the GC by their agents 78 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 79 State responsibility for violations of the law of war results in obligations to compensate other States for violations 80 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 81 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 77 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 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 ” 78 Refer to § 10 3 5 State Responsibility for Its Agents’ Treatment of Protected Persons 79 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 ” 80 Refer to § 18 16 Compensation for Violations of the Law of War 81 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 ” 1070 crimes committed by all persons including members of a belligerent’s armed forces 82 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 83 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 84 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 85 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 86 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 87 82 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 ” 83 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 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 ” 84 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 85 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 86 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 87 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 1071 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 Geneva Conventions created an international penal code 88 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 89 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 88 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 ” 89 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 1072 • 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 90 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 91 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 90 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 ” 91 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 ” 1073 of the 1949 Geneva Conventions could apply also to violations of Common Article 3 92 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 93 U S law makes punishable certain conduct that constitutes a “grave breach of common article 3 ” 94 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 95 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 96 92 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 ” 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 ” 93 94 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 ” 95 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 96 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 ” 1074 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 97 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 98 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 provisions of the CCW Amended Mines Protocol willfully kill or cause serious injury to civilians and to bring such persons to justice 99 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 100 U S Federal law authorizes prosecutions for such conduct 101 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 97 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 98 Refer to § 18 1 2 3 General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty – CCW Amended Mines Protocol 99 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 ” 100 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 ” 101 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 ” 1075 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 102 This has been longstanding U S military doctrine 103 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 104 Commanders may also impose non-judicial punishment or take adverse administrative action to address minor violations 105 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 106 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 ” 102 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 ” 103 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 ” 104 Refer to § 18 7 3 Enforcement of Law of War Obligations Through Military Instructions Regulations and Procedures 105 Refer to § 18 19 1 Non-Judicial Punishment and Adverse or Corrective Administrative Actions 106 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— … ” 1076 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 107 Generally this usage does not prevail today although practitioners may find this usage in older sources 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 108 including demands for compensation or the punishment of enemy persons who have violated the law 109 • solicitation of the good offices mediation or intervention of neutral States for the purpose of making the enemy observe the law of war 110 • petition to the U N Security Council 111 • punishment of captured offenders as war criminals either through national or international tribunals 112 • retorsion 113 and • reprisals 114 107 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 108 Refer to § 18 11 Protests and Demands to the Offending Party 109 Refer to § 18 11 2 Demands for Redress 110 Refer to § 18 15 Protecting Power and Other Neutral Intermediaries 111 Refer to § 18 12 U N Security Council and Enforcement of the Law of War 112 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 113 Refer to § 18 17 Retorsion 114 Refer to § 18 18 Reprisals 1077 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 115 Complaints also may be made through the Protecting Power an impartial humanitarian organization performing the duties of a Protecting Power or a Neutral State 116 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 117 A State may demand financial compensation or other reparations 118 Similarly a State may demand that offending individuals be held accountable for their offenses through judicial or other processes 119 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 120 The U N Security Council may take a variety actions to respond to such threats 115 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 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 ” 116 Refer to § 18 15 Protecting Power and Other Neutral Intermediaries 117 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 118 Refer to § 18 16 Compensation for Violations of the Law of War 119 Refer to § 18 19 Discipline in National Jurisdictions of Individuals for Violations of the Law of War 120 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 1078 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 121 This authority of the U N Security Council to investigate situations includes any such situations that involve violations of the law of war 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 122 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 123 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 ” 121 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 ” 122 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 ” 123 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 1079 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 124 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 125 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 126 The U N Security Council has referred situations in Darfur and Libya to the Prosecutor of the International Criminal Court 127 The United States has objected to certain 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 ” 124 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 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 ” 125 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 ” 126 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 ” 127 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 1080 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 128 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 that treaty 129 These treaties provide that each Party undertakes to cooperate with any investigation that the Security Council may initiate 130 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 131 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 132 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 ” 128 Refer to § 18 20 3 The International Criminal Court ICC Created by the Rome Statute 129 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 ” 130 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 ” 131 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 ” 132 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 ” 1081 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 133 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 reports of alleged violations of the law of war 134 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 135 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” 136 Such 133 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 ” 134 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 ” 135 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 ” 136 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 ” 1082 policy has been in addition to other DoD policies that address the reporting of criminal incidents 137 Individual Military Services have implemented procedures to ensure that incidents including war crimes are promptly reported 138 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 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 139 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 140 18 13 2 DoD Policy on Investigating Law of War Violations DoD policy has required that all reportable incidents be thoroughly investigated 141 All the Military Departments and 137 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 138 See e g DEPARTMENT OF THE ARMY REGULATION 190-45 Law Enforcement Reporting Mar 30 2007 Chapters 8 and 9 139 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 ” 140 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 ” 141 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 ” 1083 Services have regulations for the conduct of both formal and informal administrative investigations 142 In addition DoD policy has required that higher authorities receiving an initial report request a formal investigation by the cognizant military criminal investigative organization 143 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 investigate alleged law of war violations Commissions of inquiry might be established by treaty 144 Commissions of inquiry might also be established by the U N Security Council 145 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 146 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 147 Once the violation has 142 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 143 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 144 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 ” 145 Refer to § 18 12 1 Investigation by the U N Security Council Under the Charter of the United Nations 146 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 147 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 1084 been established the parties to the conflict “shall put an end to it and shall repress it with the least possible delay ” 148 18 14 1 1 AP I – International Humanitarian Fact-Finding Commission IHFFC AP I provides for the establishment of an international fact-finding commission 149 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 150 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 151 Although the IHFFC was officially constituted in 1991 it has not been used in its first two decades 152 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 148 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 149 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 ” 150 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 Protocol ii Facilitate through its good offices the restoration of an attitude of respect for the Conventions and this Protocol ” 151 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 ” 152 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 ” 1085 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 153 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 Protecting Powers whose duty it is to safeguard the interests of the parties to the conflict 154 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 155 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 156 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 157 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 153 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 ” 154 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 155 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 156 Refer to § 18 15 2 3 Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by Protecting Powers Under the 1949 Geneva Conventions 157 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 ” 1086 The State appointed to be a Protecting Power must be able to fulfill the Protecting Power’s responsibilities 158 This State should be neutral or non-belligerent with respect to the conflict in question 159 However the State need not be a traditionally neutral power such as Sweden or Switzerland 160 In cases where a State serving as a Protecting Power enters the armed conflict another State may assume the responsibilities of the Protecting Power 161 A State may serve as the Protecting Power for more than one side in an armed conflict 162 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 163 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 164 158 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 159 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 160 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 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 257 161 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 ” 162 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 257 163 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 164 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 1087 18 15 2 3 Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by Protecting Powers Under the 1949 Geneva Conventions If the 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 165 The ICRC has often performed such a role during armed conflict 166 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 167 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 168 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 169 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 ” 165 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 166 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 ” 167 Refer to § 9 32 Role of the Protecting Power in the GPW § 10 32 Role of the Protecting Power in the GC 168 Refer to § 4 25 1 Appointment of Delegates of the Protecting Powers 169 Refer to § 4 25 2 Duties of the Representatives or Delegates of the Protecting Power 1088 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 170 Protecting Powers may propose to the parties to the conflict a representative of a neutral Power or the ICRC to participate in the meeting 171 This mechanism developed from State practice during World War I 172 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 173 The Director-General of the United Nations Educational Scientific and Cultural Organization can also have a role in this process 174 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 175 This principle also applies to the law of 170 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 171 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 172 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 ” 173 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 ” 174 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 ” 175 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 ” 1089 war in that a State that violates the law of war shall if the case demands be liable to pay compensation 176 18 16 1 Agreements Between States Settling Claims Claims may be addressed by international agreements between States 177 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 178 Parties to the 1949 Geneva Conventions however cannot absolve one another of liability for grave breaches of the Geneva Conventions 179 18 16 2 International Claims Commissions Compensation claims have also been addressed by international claims commissions established by agreement by the Parties 180 A claims commission may also be established by the U N Security Council 181 176 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 ” 177 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 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 ” 178 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 ” 179 Refer to § 18 9 3 Grave Breaches of the 1949 Geneva Conventions 180 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 1090 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 182 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 183 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 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 … ” 181 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 ” 182 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 … ’” 183 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 ” 1091 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 184 The fact that such responsibility is owed to other States reflects the predominately inter-State nature of international obligations 185 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 186 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 187 Retorsion is frequently contrasted with reprisal which involves measures that would otherwise be unlawful 188 184 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 ” 185 Refer to § 1 10 1 3 Predominately Inter-State Nature of International Obligations 186 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 ’” 187 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 ” 188 Refer to § 18 18 1 2 Acts That Would Otherwise Be Unlawful 1092 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 189 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 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 190 For example during the Civil War the United States authorized reprisals against Confederate forces for murdering and enslaving captured Union soldiers 191 Reprisals against POWs are now prohibited 192 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 189 Refer to § 18 18 2 Conditions for Lawful Reprisals 190 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 ” 191 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 ” 192 Refer to § 18 18 3 2 Reprisals Prohibited by the 1949 Geneva Conventions 1093 violations of the law of war 193 Some older sources used the term “retaliation” to describe what is now commonly understood to be “reprisal ” 194 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 195 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 196 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 197 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 193 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 ” 194 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 ” 195 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 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 ” 196 Refer to § 18 17 Retorsion 197 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 ” 1094 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 198 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 199 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 200 Thus the authority to conduct reprisal is generally held at the national level 201 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 202 Identical reprisals are the easiest to justify as proportionate because subjective comparisons are not involved 203 198 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 ” 199 Refer to § 18 10 Methods for Responding to Violations of the Law of War by the Enemy 200 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 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 201 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 ” 202 Refer to § 2 4 Proportionality 203 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 ” 1095 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 204 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 announced as such 205 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 206 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 207 Such persons or property would include • combatant personnel who are wounded sick or shipwrecked 208 • medical personnel and chaplains 209 • medical units and facilities 210 and 204 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 205 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 ” 206 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 ” 207 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 ” 208 Refer to § 7 3 1 Definitions of Wounded Sick and Shipwrecked 209 Refer to § 7 8 Respect and Protection of Categories of Medical and Religious Personnel 1096 • hospital ships 211 Measures of reprisal against POWs are prohibited 212 Reprisals against protected persons under the GC and their property are prohibited 213 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 214 Cultural property is defined in the 1954 Hague Cultural Property Convention 215 18 18 3 4 AP I Provisions on Reprisals AP I prohibits attacks by way of reprisal against • the civilian population or civilians 216 • civilian objects 217 • objects indispensable to the survival of the civilian population such as foodstuffs crops livestock drinking water installations and supplies and irrigation works 218 210 Refer to § 7 10 Military Medical Units and Facilities 211 Refer to § 7 12 1 Types of Hospital Ships and Coastal Rescue Craft 212 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 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 213 GC art 33 “Reprisals against protected persons and their property are prohibited ” Refer to § 10 3 Protected Person Status 214 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 ” 215 Refer to § 5 18 1 Definition of Cultural Property 216 AP I art 51 6 “Attacks against the civilian population or civilians by way of reprisals are prohibited ” 217 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 ” 1097 • the natural environment 219 and • works and installations containing dangerous forces namely dams dykes and nuclear electrical generating systems 220 The United States has expressed the view that AP I’s provisions on reprisal are counterproductive and that they remove a significant deterrent that protects civilians and war victims on all sides of a conflict 221 The United Kingdom has taken a reservation to AP I’s prohibition on certain attacks by way of reprisal 222 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 223 France has declared that it will apply the provisions of paragraph 8 of Article 51 218 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 ” 219 AP I art 55 2 “Attacks against the natural environment by way of reprisals are prohibited ” 220 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 ” 221 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 ” 222 United Kingdom Statement on Ratification of AP I Jan 28 1998 2020 UNTS 75 77-78 “ m Re Articles 5155 The obligations of Article 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations If an adverse party makes serious 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 ” 223 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 1098 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 224 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 225 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 ” 224 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 ” 225 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 1099 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 authorized under the Uniform Code of Military Justice 226 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 227 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 ” 228 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 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 ” 226 10 U S C § 815 227 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 228 Refer to § 18 19 3 8 War Crimes Act 1100 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 229 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 230 229 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 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 230 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 1101 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 231 • murder 232 • rape and sexual assault 233 • failure to obey order or regulation 234 and • conduct prejudicial to good order and discipline 235 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 236 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 ” 231 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 ” 232 10 U S C § 918 233 10 U S C § 920 234 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 ” 235 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 ” 236 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 ” 1102 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 237 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 238 For example this authority 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 239 • genocide 240 • murder or manslaughter of foreign officials official guests or internationally protected persons 241 • piracy 242 • acts of terrorism and material support to terrorists 243 237 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 ” 238 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 ” 239 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 ” 240 18 U S C § 1091 241 18 U S C § 1116 242 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 ” 243 18 U S C §§ 2332b 2339A 2339B 1103 • certain acts involving biological weapons 244 • certain acts involving chemical weapons 245 and • certain acts involving nuclear weapons 246 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 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 247 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 248 Provisions of MEJA have been implemented through DoD regulations 249 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 244 18 U S C § 175 245 18 U S C § 229 246 18 U S C § 831 247 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 ” 248 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 ” 249 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 ” 1104 abroad even though Uniform Code of Military Justice jurisdiction over that person has ceased 250 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 251 Such jurisdiction may 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 252 This jurisdiction provides another method by which U S law may be used to punish conduct that violates the law of war 253 18 19 3 7 U S Military Commissions U S statutes authorize the prosecution of alien unprivileged enemy belligerents for certain offenses 254 The Secretary of Defense has promulgated additional rules of procedure and rules of evidence applicable to such proceedings 255 250 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 ” 251 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 ” 252 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 ” 253 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 ” 254 10 U S C § 948c “Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter ” 255 DEPARTMENT OF DEFENSE Manual for Military Commissions Aug 14 2012 DEPARTMENT OF DEFENSE Manual for Military Commissions Apr 27 2010 1105 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 256 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 257 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 258 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 256 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 ” 257 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 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 ” 258 Eric Holder Attorney General Remarks at Northwestern University School of Law Mar 5 2012 2012 DIGEST 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 ” OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577 1106 member of the U S Armed Forces whether inside or outside the United States 259 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 260 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 261 DoD policy addresses the use of the Uniform Code of Military Justice to try civilians serving with or accompanying the U S armed forces 262 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 259 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 ” 260 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 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 ” 261 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 262 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 1107 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 263 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 tribunals are not binding as precedent on the United States including U S courts 264 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 265 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 266 263 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 ” 264 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 ” 265 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 ” 266 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 1108 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 267 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 268 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 269 The 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 ” 270 The Rome Statute provides that the ICC has jurisdiction in accordance with the Statute with respect to 271 • the crime of genocide • crimes against humanity • war crimes and • the crime of aggression trial of those persons charged individually or as members of organizations or in both capacities with offenses which include crimes against peace ” 267 Refer to § 18 12 4 Authorizing International Criminal Tribunals 268 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 269 Refer to § 19 23 Rome Statute of the International Criminal Court 270 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 ” 271 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 ” 1109 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 272 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 273 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 referral by the Security Council 274 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 275 The Rome Statute also 272 Refer to § 18 12 4 Authorizing International Criminal Tribunals 273 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 ” 274 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 ” 275 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 ” 1110 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 276 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 277 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 278 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 279 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 276 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 ” 277 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 preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country ” 278 See e g 22 U S C §§ 7421-7433 22 U S C § 7401 b 279 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 ” 1111 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 280 A 2010 Review Conference in Kampala Uganda adopted amendments concerning the crime of aggression but the amendments are subject to ratification or acceptance 281 and certain conditions must be fulfilled before the ICC will be able to exercise jurisdiction with respect to the crime of aggression 282 The United States has expressed the view that the definitions of “act of aggression” and “crime of aggression” in the Kampala amendments do not reflect customary international law 283 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 284 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 285 280 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 ” 281 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 ” 282 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 ” 283 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 ” 284 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 ” 285 See generally DEPARTMENT OF THE ARMY PAMPHLET 27-161-2 II International Law 224-33 Oct 23 1962 1112 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 286 The Special Court applies both international and Sierra Leonean law 287 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 288 The Special Tribunal for Lebanon was established 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 289 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 286 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 ” 287 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 ” 288 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 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 ” 289 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 ” 1113 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 290 Jurisdiction over war crimes has traditionally been exercised by belligerents with respect to offenses committed by or against their nationals 291 In addition belligerents have also prosecuted war crimes committed by enemy nationals against nationals of allies and of cobelligerents and stateless persons 292 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 293 290 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 ” 291 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 ” 292 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 ” 293 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 ” 1114 In the past neutral States generally did not exercise jurisdiction with respect to alleged law of war violations between belligerents 294 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 295 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 296 Until the 1990s no such attempts were made by States to exercise jurisdiction on this basis 297 Congress declined to authorize prosecutions for war crimes based on this 294 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” 295 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 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 ” 296 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 ” 297 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 ” 1115 principle 298 Efforts by certain States to undertake prosecutions on the basis of this principle have been controversial 299 Such prosecutions have generally not been successful unless the State concerned has consented 300 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 301 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 298 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 ” 299 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 ” 300 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 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 ” 301 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 ” 1116 perform 302 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 303 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 304 18 21 3 Fundamental Fairness Requirements 18 21 3 1 Fair Trial Requirements Any person charged with a crime under international law has the right to a fair trial on the facts and law 305 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 306 In addition other fundamental fair trial guarantees should be afforded 307 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 302 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 ” 303 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 ” 304 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 ” 305 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 ” 306 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 307 Refer to § 8 16 Criminal Procedure and Punishment 1117 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 308 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 punishment of POWs must comport with the rules prescribed by the GPW 309 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 310 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 311 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 308 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 ” 309 Refer to § 9 26 General Principles Applicable to POW Discipline § 9 28 Judicial Proceedings and Punishment 310 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 311 Refer to § 4 4 3 Combatants - Legal Immunity From a Foreign State’s Domestic Law 1118 law is responsible therefor and liable to punishment 312 International law imposes duties and liabilities on individuals as well as States and individuals may be punished for violations of international law 313 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 314 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 315 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 316 312 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 ” 313 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 314 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 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 ” 315 Refer to § 1 10 1 4 Force of International Law Notwithstanding a State’s Domestic Law 316 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 ” 1119 This principle has been reflected in the statutes of international criminal tribunals 317 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 318 This principle has been reflected in the statutes of international criminal tribunals 319 It may also be understood as part of a broader principle that military personnel cannot justify committing unlawful acts by producing the order of their superior 320 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 321 317 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 ” 318 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 ” 319 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 accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility … ” 320 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 ” 321 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 1120 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 322 Subordinates absent specific knowledge to the contrary may presume orders to be lawful 323 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 324 On the other hand subordinates must refuse to comply with clearly illegal orders to commit violations of the law of war 325 That an offense was committed pursuant to superior orders may be considered in mitigation of punishment 326 The degree to which superior orders should mitigate punishment would depend on the specific circumstances of the case 327 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 ” 322 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 ” 323 Refer to § 18 3 2 1 Clearly Illegal Orders to Commit Law of War Violations 324 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 ” 325 Refer to § 18 3 2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations 326 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 4 327 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 ” 1121 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 328 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 This principle is reflected in the Uniform Code of Military Justice 329 Statutes of international criminal tribunals have also reflected this mode of liability 330 18 23 2 Instigating or Directly Inciting Instigating or direct incitement of an offense is punishable 331 Statutes of international criminal tribunals have also reflected this mode of liability 332 328 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 ” 329 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 ” 330 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 ” 331 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 ” 332 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 ” 1122 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 333 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 334 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 to take such measures 335 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 336 The statutes of international tribunals have also reflected 333 Refer to § 18 4 Commanders’ Duty to Implement and Enforce the Law of War 334 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 ” 335 Refer to § 18 19 3 1 Uniform Code of Military Justice Offenses 336 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 ” 1123 command responsibility as a mode of liability 337 In some cases this theory of superior responsibility has been applied to civilian superiors 338 Command responsibility as a mode of liability is not a form of strict liability 339 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 340 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 341 This theory of liability is applicable in prosecutions in Federal court under title 18 342 prosecutions under the Uniform Code of Military Justice 343 and prosecutions by U S military 337 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 28 338 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 ” 339 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 ” 340 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 ” 341 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 342 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 1124 commission 344 This theory of liability has also been reflected in the statutes of international criminal tribunals 345 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 346 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 347 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 348 which if directly performed by him or another would be an offense against the United States is punishable as a principal ” 343 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 ” 344 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 ” 345 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 ” 346 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 ” 347 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 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 ” 348 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 1125 18 23 5 Conspiracy The essence of conspiracy is the combination of minds in an unlawful purpose 349 The United States has taken the position that conspiracy to violate the law of war is punishable 350 The United States has used military tribunals to punish unprivileged belligerents for the offense of conspiracy to violate the law of war 351 Conspiracy is an offense under the Uniform Code of Military Justice 352 Conspiracy is an support to terrorists” 18 U S C § 2339B making punishable “ p roviding material support or resources to designated foreign terrorist organizations” 349 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 350 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 ” 351 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 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 ” 352 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 ” 1126 offense under the Military Commissions Act of 2009 353 Conspiracy to commit an offense is an offense under Title 18 354 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 355 18 23 5 1 Conspiracy to Commit Genocide The Genocide Convention provides that conspiracy to commit genocide shall be punishable 356 Thus mere agreement by perpetrators to commit genocide may be punishable even if no preparatory act has taken place 357 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 358 However the International Military Tribunal declined to interpret 353 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 ” 354 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 ” 355 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 ” 356 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 …” 357 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 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 ” 358 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 1127 its Charter to authorize prosecutions for conspiracy to commit war crimes and crimes against humanity 359 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 360 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 361 Joining a criminal group may be punishable as a distinct offense separate from the atrocities committed by that criminal group 362 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 363 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 ” 359 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 ” 360 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 ” 361 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 ” 362 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 ” 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 363 1128 • 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 364 • 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 365 and • cases in which a “common purpose” exists because 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 offenses that do not constitute the object of the common criminal purpose 366 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 ” 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 ” 364 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 ’” 365 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 366 1129 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 ” 1130 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 1131 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 1132 • 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 of August 12 1949 GC 20 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 1133 • 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 III 30 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 1134 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 Treaty of London of April 22 1930 1936 London Protocol 36 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 ” 1135 • 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 of Anti-Personnel Mines and on Their Destruction of September 18 1997 44 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 44 Refer to § 6 12 14 Ottawa Convention on Anti-Personnel Landmines 1136 • 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 Balloons of October 18 1907 53 • Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of February 6 1922 54 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 53 Refer to § 19 7 3 1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons 1137 • 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 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 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 effect to those international rules which President Lincoln made binding upon the American armies fifty years ago ” 61 Refer to § 2 2 Military Necessity 1138 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 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 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 5 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 ” 68 Refer to § 13 10 2 3 Effectiveness of the Blockade 1139 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 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 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 ” 1140 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 in either international or non-international armed conflicts 80 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 ” 80 Refer to § 6 5 4 4 Expanding Bullets 1141 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 United States deposited its instrument of ratification to the 1907 Hague Declaration XIV on 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 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 ” 1142 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 1902 94 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 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 1143 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 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 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 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 ” 1144 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 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 105 100 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 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 ” 1145 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 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 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 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 1146 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 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 117 111 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 ” 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 1147 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 use of bacteriological methods of warfare 122 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 ” 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 1148 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 128 123 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 ” 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 1149 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 1929 GPW or reflect an effort to improve upon the 1929 GPW 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 1150 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 shall be due to the personnel of the institutions mentioned above The same respect and protection shall be accorded 1151 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 obligations 148 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 6 Discrimination in Conducting Attacks 143 Franklin D Roosevelt Proclamation Regarding the Roerich Pact Oct 25 1935 49 STAT 3267 3274 “AND 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 ” WHEREAS 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 ” 1152 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 152 148 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 1153 19 16 1 1 Common Terms in the 1949 Geneva Conventions – Notes on 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 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 1154 addresses non-international armed conflict 160 It was the first provision in a multilateral law of 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 19 16 2 GWS The GWS is often called the first Geneva Convention 167 The GWS addresses the following subjects on land 1 the protection of the wounded sick and dead 2 the rights duties and liabilities of military medical and religious personnel and 3 the protection of military medical units facilities and transports 168 19 16 2 1 Relationship Between the GWS and Earlier Conventions The GWS replaces the Conventions of August 22 1864 July 6 1906 and July 27 1929 in relations between the Parties to the GWS 169 160 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 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 ” 1155 19 16 3 GWS-Sea The GWS-Sea is often called the second Geneva Convention 170 The GWS-Sea addresses the following subjects at sea 1 the protection of the wounded sick shipwrecked and dead 2 the rights duties and liabilities of military medical and religious personnel and 3 the protection of military medical units facilities and transports 171 19 16 3 1 Relationship Between the 1907 Hague X and the GWS-Sea The GWSSea replaces the Hague X in relations between the Parties to the GWS-Sea 172 19 16 4 GPW The GPW is often called the third Geneva Convention 173 The GPW addresses the protection of POWs 174 19 16 4 1 Relationship Between the GPW and the 1929 GPW The GPW replaces the 1929 GPW in relations between the Parties to the GPW 175 19 16 4 2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague IV In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV and that are Parties to the GPW the GPW shall be complementary to Chapter II of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV 176 19 16 5 GC The GC is often called the fourth Geneva Convention 177 The GC addresses the protection of civilians in the hands of a party a conflict including civilian internees 178 The GC also addresses belligerent occupation 19 16 5 1 Application of Different Parts of the GC Different parts of the GC apply to different situations 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 85 171 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 1156 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 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 186 179 Refer to § 10 3 Protected Person Status 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 1157 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 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 191 187 Convention for the Protection of Cultural Property in the Event of Armed Conflict May 14 1954 249 UNTS 240 188 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 ” 1158 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 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 196 192 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 ” 1159 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 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 ” 203 197 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 1160 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 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 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 ” 204 Refer to § 5 7 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 2 Other Journalists 1161 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 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 210 • 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 Refer to § 5 9 1 2 AP I Article 51 3 Provision on Direct Participation in Hostilities 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 5 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 5 3 2 AP I Presumptions in Favor of Civilian Status in Conducting Attacks 1162 • reprisals 221 19 20 2 AP II Protocol II Additional to the Geneva Conventions and Relating to the 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 227 220 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 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 ” 1163 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 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 1 228 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 ” 1164 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 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 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 ” 1165 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 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 242 237 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 ” 1166 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 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 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 4344 “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 ” 1167 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 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 245 Refer to § 3 3 4 AP I Provision on National Liberation Movements 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 ” 1168 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 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 258 252 Refer to § 17 2 1 1 Treaties That Have Provisions That Explicitly Apply to NIAC 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 1169 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 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 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 ” 1170 is prohibited by the rule against weapons calculated to cause unnecessary suffering nor otherwise prohibited by the customary law of war 264 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 270 264 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 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 1171 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 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 271 Refer to § 6 8 3 Chemical Weapons 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 1172 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 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 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 105th Congress 143 CONGRESSIONAL RECORD S3651 S3657 1997 “ 26 Riot control agents A Permitted uses — 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 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 ” 1173 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 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 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 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 1174 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 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 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 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 ” 1175 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 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 297 294 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 ” 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” 1176 - 18 1 In F1411 1 111 W g wg 11 #708 1 gr 1 11% II do 14 Mr 191% a 1 1 1 - I 11 I 1m 1 11Egg 13 1 4n ll h II 1 1 1 111% 1 uhh 091 I II 1 1V 6 Ina 31 1 511111% 1 111111 I 1 111 131 1111 I - 7V aunt 14111 1 11 1 111 Ar - u h mum 111 $1 uM nl la-ant rwau di1 1% I 1 01 v 11 xx ktu 1%Ira1 1 1 1 11 1111 - - l I I11