Chapter 2
Sources of the Law of Armed Conflict
I. Introduction
A. While there are numerous Law of Armed Conflict (LOAC) treaties in force today, most fall within two broad categories, commonly referred to as the “Hague Law” or “Hague Tradition” of regulating means and methods of warfare, and the “Geneva Law” or “Geneva Tradition” of respecting and protecting victims of warfare.
B. The Hague Tradition
1. This prong of the law of armed conflict focuses on regulating the means and methods of warfare (e.g., tactics, weapons, and targeting decisions). It primarily consists of the various Hague Conventions of 1899, as revised in 1907,[1] the 1954 Hague Cultural Property Convention[2] and the 1980 Certain Conventional Weapons Convention.[3] The rules relating to the means and methods of warfare are primarily derived from Articles 22 through 41 of the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV. Article 22 states that the means of injuring the enemy are not unlimited.
2. The following treaties, limiting specific aspects of warfare, are also sources of targeting rules. These treaties are discussed more fully in the Means and Methods of Warfare section on weapons.
a. The 1925 Geneva Protocol prohibits use in war of asphyxiating, poisonous, or other gases.[4] A number of States, including the United States, reserved the right to respond with chemical weapons to a chemical attack. The 1993 Chemical Weapons Convention (CWC), however, prohibits production, stockpiling, and use of chemical weapons, even in retaliation. The United States ratified the CWC in April 1997.
b. The 1954 Hague Cultural Property Convention seeks to protect cultural property.[7]
c. The 1925 Geneva Protocol prohibits biological weapons. The 1972 Biological Weapons Convention prohibits their use in retaliation, as well as production, manufacture, and stockpiling.[9]
d. The 1980 Certain Conventional Weapons Convention (often referred to as the CCW) restricts or prohibits the use of certain weapons deemed to cause unnecessary suffering or to be indiscriminate: Protocol I - non-detectable fragments; Protocol II - mines, booby traps, and other devices; Protocol III - incendiaries; Protocol IV - laser weapons; and Protocol V - explosive remnants of war. The United States has ratified the Convention with certain reservations, declarations, and understandings.[10]
C. The Geneva Tradition
1. This prong of the law of armed conflict is focused on establishing protections for the “victims of war.” In contrast to the Hague Tradition of regulating specific weapons and their application, the Geneva Tradition confers the protections of the law of armed conflict primarily by assigning certain persons and places a legal status.
2. This Geneva Tradition is exemplified by the four Geneva Conventions of 1949. While there were earlier Geneva Conventions (1864, 1906, and 1929), the current four treaties of 1949 are each devoted to protecting a specific category of war victims:
a. GC I: Wounded and Sick in the Field.[12]
b. GC II: Wounded, Sick, and Shipwrecked at Sea.[13]
c. GC III: Prisoners of War.[14]
d. GC IV: Civilians.[15]
3. The Geneva Conventions entered into force on 21 October 1950. The United States ratified the conventions on 8 February 1955. Currently, all States are party to the 1949 Geneva Conventions.[18]
D. The Intersection of the Hague and Geneva Traditions: The Additional Protocols
1. In 1977, two treaties were drafted to supplement the 1949 Geneva Conventions: Additional Protocol I (AP I) and Additional Protocol II (AP II). The Additional Protocols illustrate the convergence of “Hague Law” and “Geneva Law” by updating and including both traditions in one document.
2. The United States has signed, but not ratified, both AP I and AP II. Despite the fact that the United States has not ratified these treaties, understanding AP I and AP II is important for at least two reasons: (1) The United States views many provisions of AP I and AP II as either customary international law (CIL) or reflective of U.S. policy; and (2) many U.S. coalition partners have ratified AP I and AP II, and may have different legal obligations than the United States during combined operations.[20] U.S. commanders must be informed that AP I and AP II bind numerous allied forces, including all members of NATO except Türkiye (formerly Turkey).
3. While there is no authoritative list of the AP I articles the United States views as CIL, or specifically rejects as CIL, many consider remarks made in 1987 by Michael J. Matheson, then Deputy Legal Advisor at the Department of State, as the most comprehensive expression of the U.S. position.[22] In March 2011, President Obama announced that the United States would comply with Article 75 of AP I, which provides fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, “out of a sense of legal obligation.”[23]
4. As for AP II, in March 2011, President Obama announced continued support of AP II and urged the Senate to act “as soon as practicable” to provide advice and consent for the protocol’s ratification Furthermore, the Obama Administration stated that U.S. military activities were consistent with the provisions in AP II.
E. Other Sources
1. Treaty Commentaries. These are written works (also referred to as travaux preparatoires) by official recorders of the drafting conventions for the major Law of Armed Conflict treaties (Jean Pictet for the 1949 Geneva Conventions and Yves Sandoz for the Additional Protocols). The commentaries provide critical explanations to many treaty provisions, and are similar to legislative history in the domestic context. Where the meaning of a provision contained in the treaty is unclear, the travaux can be helpful in resolving conflicts regarding the understanding of the parties at the time States party became signatories.
2. Military Publications. Military manuals are not sources of law in the context of creating law. Rather, such manuals are useful references in developing an understanding of the application of Law of Armed Conflict concepts within the military generally and specific services in particular. However, recent studies have examined military manuals for evidence of opinio juris in seeking to resolve questions of whether State practice has ripened into binding customary international law.[27]
a. DoD Law of War Manual. “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.”
b. FM 6-27, The Commander’s Handbook on the Law of Land Warfare. “[P]rovides guidance to Soldiers and Marines on the doctrine and practice related to customary and treaty law applicable to the conduct of warfare on land and to relationships between opposing belligerents, in order to train and prepare for combat operations.”
c. NWP 1–14M/MCWP 5–12.1, The Commander’s Handbook on the Law of Naval Operations. Chapters 5, 6, and 8–12 address specific aspects of the law of armed conflict. Other chapters of the publication are more broadly applicable to maritime operations and international law generally.
d. Air Force Operations and the Law. Chapters 1–3 generally focus on the law of armed conflict. Other chapters address specific aspects of international law, air warfare, cyber operations, and space operations.
Ii. The Geneva Conventions
A. Historical Background.
1. In 1862, Henry Dunant, the founder of the ICRC, wrote the book, A Memory of Solferino. Dunant’s account of Solferino impacted many states across Western Europe, and in 1863, states gathered in Geneva, Switzerland, to hold a conference to discuss the treatment of the wounded and sick on the battlefield. The Conference resulted in the 1864 Geneva Convention. Key provisions include:
a. Neutrality of military ambulances;
b. Neutrality of medical personnel and chaplains, including repatriation should they be captured;
c. Obligation of the parties to the conflict to provide care for the wounded and sick, including repatriation if the wounded and sick were incapable of further service and agreed not to take up arms again.
2. The Convention was updated in 1906, 1929, 1949, and 1977.
B. Framework for Analysis. When applying the Geneva Conventions to military operations, a recommended starting point is to answer the following two questions: (1) In what type of conflict are the parties engaged?; and (2) What type of person or object is the subject of the analysis?
1. Geneva Trigger: What Type of Conflict? All four Geneva Conventions of 1949 have “common articles.” Common Article 2 sets up all four Conventions with an “either/or” condition/trigger:
a. Either it is an international armed conflict (IAC), in which case the Geneva Conventions apply in their entirety; or it is a non-international conflict (NIAC), in which case although the Geneva Conventions do not apply in their entirety; however, Common Article 3 and other basic protections do apply.
b. Not all conflicts are sufficient to trigger the relevant set or subset of LOAC as they fail to meet the threshold requirements for that law to be applicable—such as limited border skirmishes, isolated acts of violence, riots, or banditry. Military operations, in this regard, are increasingly difficult to categorize or are conducted in conditions not amounting to armed conflict. Conflicts which are neither international armed conflicts nor non-international armed conflicts are not regulated by LOAC, but are regulated by rules governing law enforcement activity, international human rights law, and the international law governing the exercise of extraterritorial enforcement jurisdiction. Moreover, the United States may apply the Geneva Conventions by policy. Characterization of a conflict will generally be determined at the national level; however, Judge Advocates must understand the applicable legal framework and what law governs the conduct of military operations.
c. It is possible to have a hybrid situation, with both an IAC and a NIAC occurring simultaneously. For example, during the 2011 conflict in Libya, there was an IAC between NATO and Libya (Gaddafi), as well as a NIAC between Libya (Gaddafi) and armed Libyan insurgents/rebels.
d. For States party to AP I, article 1(4) expands the scope of IAC to “include armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” This expansion is one of the reasons the United States has not ratified AP I.
e. For States party to AP II, article 1 expands protections beyond Common Article 3 only when a NIAC reaches a certain level, including control of territory by a non-state group (high intensity NIACs).[42] The U.S. objects to article 1 of AP II and believes that AP II standards should apply more broadly to all NIACs covered by Common Article 3.
2. Geneva Trigger: What Type of Person or Object? A legal analysis involving the Geneva Conventions must also ask what type of person or object is the subject of the analysis? For instance, civilians are primarily protected by GC IV, while the protections governing a shipwrecked Sailor would generally be found in GC II.
3. Even if a State is not legally required to apply the protections of the Geneva Conventions based on the above analysis, the State may choose, as a matter of policy, to provide protection. For instance, DoD Directive 2311.01 states that U.S. Forces will “comply with the law of war during all armed conflicts, however characterized.”[44]
C. The First Geneva Convention (GC I)
1. General Rule
a. Protections for the Wounded and Sick in an IAC. In an IAC, also called a Common Article 2 conflict, the full GC I protections are applicable. The protections consist of three main pillars: treatment of the wounded and sick; protections for personnel aiding the wounded and sick; and distinctive emblems to identify protected personnel, units, and establishments.
b. Protections for the Wounded and Sick in a NIAC
(1) Common Article 3, also known as the “Mini-Convention” because it provided protections in NIAC, includes some protections for the wounded and sick. The protections demanded by Common Article 3 include humane treatment for those placed “hors de combat by sickness, wounds, detention, or any other cause;” no adverse distinction in providing medical care; and the obligation to collect and care for the wounded and sick.
(2) For those nations party to it, AP II expands slightly the protection for the wounded and sick, those who aid them, and for medical units and transports, beyond that provided for in Common Article 3.
(3) Additional Protocol III (AP III) also contains some provisions that apply in NIAC. These provisions primarily relate to protected symbols (discussed below).
2. Who are the Wounded and Sick?
a. The term “wounded and sick” is not defined in the Geneva Conventions. The drafters were concerned that any definition would be misinterpreted, so they decided that the meaning of the words was a matter of “common sense and good faith.”[49] AP I, art. 8(1) defines wounded and sick as: “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.” While the U.S. does not specifically object to this definition of wounded and sick in art. 8 of AP I, it is incongruent with the rule stated on wounded and sick reflected in section 7.3.1 of the Law of War Manual, which aligns with the principle of hors de combat.
b. Hors de Combat. Hors de combat is a law of war principle that is related to but different than the definition of wounded and sick. Hors de combat was not specifically defined in GC I, but it was clearly defined in AP I, art. 41. Combatants are hors de combat, and therefore protected from attack, if they are in the power of an adverse party, if they have surrendered, if they are parachuting from an aircraft in distress, or if they are unconscious or incapacitated by wounds, sickness, or shipwreck.[51] Both the “wounded and sick” and hors de combat are protected from attack.[52] According the AP I definitions above, the principle of hors de combat can be both broader and narrower than the definition of wounded and sick. Unwounded, surrendered soldiers are hors de combat but not “wounded and sick”; conversely, combatants who need medical assistance and refrain from any act of hostility—but are not incapacitated—are “wounded and sick” but not hors de combat. Because the AP I definition of “wounded and sick” does not require combatants to be unconscious or incapacitated to qualify for protection, in that respect it gives broader protection than the principle hors de combat. The U.S. is not a party to AP I and its position on “wounded and sick” reflects the principle of hors de combat rather than the broader AP I definition of wounded and sick.
c. The title of GC I—Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field—implies that its application is limited to Armed Forces. This is largely, though not entirely, true. Article 13 sets forth those persons protected by GC I. This article is the same as GC III, art. 4; therefore, the analysis to determine whether the person is protected by GC I is identical to the analysis of whether the person is entitled to POW status under GC III, art. 4 (discussed below).
d. Wounded and sick persons who do not qualify under any of the categories in GC I, art. 13, will be covered as civilians by GC IV. This coverage of civilians is qualified by GC IV, art. 16, which provides, “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.” This recognizes that “civilian authorities would often be responsible for collecting and bringing in civilian casualties. However, as a practical matter, the armed forces may be asked to lead such efforts or to carry out a joint relief operation with civilian authorities.” Civilians who are injured as a result of U.S. military operations may be collected and provided initial medical treatment in accordance with theater policies. Additionally, it is U.S. Army policy that once medical care is provided to a civilian, the standards of care in GC I apply. Moreover, if a civilian is detained, humane treatment, including medical care, remains the minimum standard of care.
e. The rules applicable to civilians connected with medical transports may vary depending on whether such persons accompany the armed forces, are members of the staff of voluntary aid societies either of a belligerent State or of a neutral State, or are civilians not otherwise protected by GC I or GC III.
3. Specific Protections for the Wounded and Sick
a. Respect and Protect. “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.”
(1) Respect: “[T]o spare, not to attack;” a prohibition on doing further harm. It is “unlawful for an enemy to attack, kill, illtreat or in any way harm a fallen and unarmed soldier.” Harming wounded soldiers who are out of the fight is illegal. Similarly, “mercy killings” are illegal.
(2) Protect: an affirmative obligation to come to another’s defense, to lend help and support, and to give aid. The enemy has an obligation to come to the aid of a fallen and unarmed soldier and give such care as the condition requires.
b. Standard of Care. Protected persons “shall be treated humanely and cared for by the Party to the conflict in whose power they may be.” Thus, the standard is one of humane treatment: “[E]ach belligerent must treat his fallen adversaries as he would the wounded of his own army.”
c. Order of Treatment.
(1) No adverse distinction may be made in providing care, other than for medical reasons. Medical personnel must make the decisions regarding medical priority on the basis of their medical ethics. Parties may not discriminate against wounded or sick because of “sex, race, nationality, religion, political opinions, or any other similar criteria.” The use of the term “adverse” permits favorable distinctions, e.g., taking physical attributes into account, such as children, pregnant women, the aged, etc.
(2) “Only urgent medical reasons will authorize priority in the order of treatment.”
(i) Treatment is accorded using triage principles that provide the greatest medical assets to those with significant injuries who may benefit from treatment, while those whose injuries are not life-threatening and those who are terminally injured are given lesser priority.
(ii) The United States applies this policy at the evacuation stage and the treatment stage.
d. Abandoning Wounded and Sick to the Enemy. If, during a retreat, a commander is forced to leave behind wounded and sick, the commander is required, as military considerations permit, to leave behind medical personnel and material to assist in their care.
(1) “[A]s far as military considerations permit” provides a limited military necessity exception to this requirement. Thus, a commander need not leave behind medical personnel if such action will leave the unit without adequate medical staff or if it would subject the medical personnel to mistreatment by an enemy that does not follow the law of armed conflict.
(2) A commander coming upon abandoned enemy wounded and sick may not refuse to provide medical care on the grounds that the enemy failed to leave behind medical personnel. The detaining power ultimately has the absolute respect and protect obligation.
e. Search, Protection, and Care.
(1) “At all times, and particularly after an engagement,” parties have an ongoing obligation to search for the wounded and sick as conditions permit. The commander determines when it is possible to do so. This mandate applies to all casualties, not just friendly casualties. The drafters recognized that there were times when military operations would make the obligation to search for the fallen impracticable. The search obligation also extends to searching for the dead, again as military conditions permit.
(2) The protection requirement refers to preventing pillage of the wounded by civilian looters, referred to as the “hyenas of the battlefield.”
(3) Care refers to the requirement to render first aid.
(4) Suspensions of Fire and Local Agreements.
(i) Suspensions of fire are agreements calling for ceasefires that are sanctioned by the Convention to permit the combatants to remove, transport, or exchange the wounded, sick and the dead.
(ii) Suspensions of fire are not always possible without negotiation and the involvement of the chain of command. Consequently, local agreements, an innovation in the 1949 Convention, are sanctioned for use by on-scene commanders to remove or exchange wounded and sick from a besieged or encircled area, as well as the passage of medical and religious personnel and equipment into such areas. GC IV, art. 17, contains similar provisions for civilian wounded and sick in such areas.
f. Identification of Casualties.
(1) Parties are required, as soon as possible, to record the following information regarding the wounded, sick, and the dead: name, identification number, date of birth, date and place of capture or death, and particulars concerning wounds, illness, or cause of death.
(2) Forward the information to the Information Bureau. Information Bureaus are established by Parties to the conflict to transmit and to receive information/personal articles regarding Prisoners Of War to/from the International Committee of the Red Cross’ (ICRC’s) Central Tracing Agency.
(3) Parties are required to forward the following information and materials regarding the dead:
(i) Death certificates;
(ii) Identification disc;
(iii) Important documents, e.g., wills, money, etc., found on the body;
(iv) Personal property found on the body.
(4) Handling of the Dead
(i) Examination of bodies (a medical examination, if possible) to confirm death and to identify the body;
(ii) No cremation (except for religious or hygienic reasons);
(iii) Honorable burial;
(iv) Mark and record grave locations.
g. Voluntary Participation of Local Population in Relief Efforts.
(1) Commanders may appeal to the charity of local inhabitants to collect and care for the wounded and sick. Such actions by the civilians must be voluntary. Similarly, commanders are not obliged to appeal to the civilians.
(2) Spontaneous efforts on the part of civilians to collect and care for the wounded and sick are also permitted, and parties may not interfere with this activity.
(3) Ban on the punishment of civilians for participation in relief efforts.
(4) Civilians must also respect the wounded and sick. This is the same principle discussed above vis-à-vis armed forces. This is the only article of the Convention that imposes a duty directly on civilians.
(5) Continuing obligations of occupying power. The Parties cannot use the employment of civilians as a pretext for avoiding their own responsibilities for the wounded and sick. The contribution of civilians is only incidental.
4. Protections for Personnel Aiding the Wounded and Sick
a. There are three categories of persons who are protected because their work is devoted to aiding the wounded and sick: medical personnel exclusively engaged in providing aid to the wounded and sick, auxiliary medical personnel, and personnel of aid societies in neutral countries.
b. First category: Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease; staff exclusively engaged in the administration of medical units and establishments; chaplains attached to the armed forces; and personnel of national Red Cross/Red Crescent Societies and other recognized relief organizations. AP I, art. 15, expanded this category to also protect civilian medical personnel and civilian chaplains.
(1) Medical personnel exclusively engaged in aiding the wounded and sick must be respected and protected “in all circumstances.” 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.
(2) Status upon capture: Retained Personnel, not POWs. This was a new provision in the 1949 convention. What resulted was a compromise: medical personnel were to be repatriated, but if needed to treat POWs, they were to be retained and treated at least as well as POWs. Note that medical personnel may only be retained to treat POWs. Under no circumstances may they be retained to treat enemy personnel. While the preference is for the retained persons to treat POWs of their own nationality, the language is sufficiently broad to permit retention to treat any POW.
(3) Repatriation of Medical Personnel. Medical personnel are to be retained only so long as required by the health and spiritual needs of POWs and are to be returned when retention is not indispensable.[123] Repatriation is the rule; retention the exception. GC I, art. 31, states that selection of personnel for return should be irrespective of race, religion or political opinion, preferably according to chronological order of capture—first-in-first-out approach. Parties may enter special agreements regarding the percentage of personnel to be retained in proportion to the number of prisoners and the distribution of the said personnel in the camps. The U.S. practice is that retained persons will be assigned to POW camps in the ratio of 2 doctors, 2 nurses, 1 chaplain, and 7 enlisted medical personnel per 1,000 POWs. Those not required will be repatriated.[125]
(4) Treatment of Medical Personnel. Medical personnel and chaplains may only be required to perform medical and religious duties. They will receive at least all benefits conferred on POWs, e.g., pay, monthly allowances, correspondence privileges. They are subject to camp discipline.
(5) Belligerents may relieve doctors retained in enemy camps with personnel from their home country. During World War II some Yugoslavian and French doctors in German camps were relieved by other doctors from Yugoslavia and France. The detaining power is bound to provide, free of charge, whatever medical attention the POWs require.
c. Second category: Auxiliary medical support personnel of the Armed Forces. These are personnel who have received special training in medical specialties (e.g., orderlies, stretcher bearers) in addition to performing military duties. While Article 25 refers to nurses, nurses are Article 24 personnel if they meet the “exclusively engaged” criteria. Auxiliary medical personnel are not widely used.[135]
(1) Auxiliary medical personnel must be respected and protected when acting in their medical capacity. When not acting in their medical capacity, they remain lawful military targets.
(2) Status upon capture: POWs; however, they must be employed in medical capacity insofar as a need for their special training arises.
(3) Treatment. When not performing medical duties, shall be treated as POWs. When performing medical duties, they remain POWs, but receive treatment under GC III, art. 32 as retained personnel; however, they are not entitled to repatriation.
d. Third category: Personnel of aid societies of neutral countries.
(1) Procedural requirements: Consent of neutral government; consent of party being aided; notification to adverse party.
(2) Retention prohibited: must be returned “as soon as a route for their return is open and military considerations permit.”
(3) Treatment pending return: must be allowed to perform medical work.
5. Medical Units and Establishments
a. Protection.
(1) Fixed establishments and mobile medical units may not be attacked, provided they do not abrogate their status. AP I, art. 12, extends this same standard to civilian hospitals.
(2) “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. In no case may a military medical unit or facility be used for the purpose of shielding military objectives from attack.”
(3) If these units fall into the hands of an adverse party, medical personnel will be allowed to continue caring for wounded and sick, as long as the captor has not ensured the necessary care.
(4) GC I does not confer immunity from search by the enemy on medical units, establishments, or transports.
b. Discontinuance of Protection.
(1) Medical units/establishments lose protection if committing “acts harmful to the enemy.” [148] Acts harmful to the enemy include setting up observation posts or using a hospital as a liaison center for fighting troops, a shelter for combatants, or an ammunition dump. Protection will not cease because a medical unit is providing care to the enemy.[150]
(2) Protection ceases only after a warning has been given, and it remains unheeded after a reasonable time to comply. A reasonable time varies depending on the circumstances, e.g., no time limit would be required if fire is being taken from the hospital. AP I, art. 13, extends this standard to civilian hospitals.
(3) Conditions not depriving medical units and establishments of protection:
(i) Unit personnel armed are for their own defense against marauders and those violating the law of armed conflict, e.g., by attacking a medical unit. Medical personnel may carry small arms, such as rifles or pistols, for this purpose. What constitutes a defensive weapon varies on the circumstances.[155] It has been the practice of the United States to not provide medical personnel crew-served weapons for self-defense.
(ii) 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 armed conflict. These arms are for their personal defense and for the protection of the wounded and sick under their charge against persons violating the law of armed conflict. Medical personnel lose their protected status and may be made the object of attack if they commit acts harmful to the enemy or otherwise use force that exceeds what is permitted for self-defense.
(iii) Unit guarded by sentries. A medical establishment will not lose its protection if guarded by non-medical personnel. These personnel may be regular members of the armed force, but they may only use force in the same circumstances as discussed in the previous paragraph.[161]
(iv) Small arms and ammunition taken from wounded may be present in the unit. However, such arms and ammunition should be removed as soon as practicable to avoid the appearance of storing munitions in a protected facility and, in any event, are subject to confiscation.
(v) Presence of personnel from the veterinary service.
(vi) Provision of care to civilian wounded and sick.
c. Disposition of Captured Buildings and Material of Medical Units and Establishments.
(1) Mobile Medical Units.
(i) Material of mobile medical units, if captured, need not be returned.
(ii) Captured medical material must be used to care for the wounded and sick. First priority for the use of such material is the wounded and sick in the captured unit. If there are no patients in the captured unit, the material may be used for other patients.[168]
(2) Fixed Medical Establishments.
(i) The captor has no obligation to restore this property to the enemy—can maintain possession of the building, and its material becomes captor’s property. However, the building and the material must be used to care for wounded and sick as long as a requirement exists.
(ii) Exception: “[I]n case of urgent military necessity,” they may be used for other purposes.
(iii) If a fixed medical establishment is converted to other uses, prior arrangements must be made for care of the wounded and sick. Medical material and stores of both mobile and fixed establishments “shall not be intentionally destroyed.”
6. Medical Transportation
a. Medical Vehicles—Ambulances.
(1) Respect and protect: Medical vehicles may not be attacked if performing a medical function. AP I, art. 21, expanded this protection to cover civilian medical transports.
(2) These vehicles may be employed permanently or temporarily, and they need not be specially equipped for medical purposes. As ambulances are not always available, any vehicle may be adapted and used temporarily for transport of the wounded. Military vehicles going up to the forward areas with ammunition may bring back the wounded; however, they may only display the emblem when the vehicle is being employed on medical work, i.e. they must not display the emblem when transporting ammunition or able-bodied troops. Extreme care must be taken so that the distinctive emblem is not be displayed while the vehicle is being used for non-medical purposes; misuse of the distinctive symbol is a war crime.
(3) Camouflage: Belligerents are only under an obligation to respect and protect medical vehicles so long as they can identify them. Consequently, absent other intelligence regarding the identity of a medical vehicle with no emblem displayed, belligerents would not be under any obligation to respect and protect it.[177]
(4) Upon capture, these vehicles are subject to the laws of armed conflict. The captor may use the vehicles for any purpose; however, the material of mobile medical units falling into the hands of the enemy must be used only for the care of the wounded and sick. If the vehicles are used for non-medical purposes, the captor must remove the distinctive markings and otherwise ensure proper care of the wounded and sick.
b. Medical Aircraft.
(1) Definition: Aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment. Excluded from this definition are combat search and rescue aircraft because soldiers merely lost or trapped are not wounded or sick.
(2) Under GC I, protection of medical aircraft ultimately depends on an agreement: medical aircraft are not to be attacked if “flying at heights, times and on routes specifically agreed upon between the belligerents.” The differing treatment accorded to aircraft, as opposed to ambulances, is a function of their increased mobility and consequent heightened fears about their misuse. Without such an agreement, belligerents use medical aircraft at their own risk.[183] “However, known medical aircraft, when performing their humanitarian functions, must be respected and protected.” “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.”
(3) Aircraft may be used permanently or temporarily on a medical relief mission; however, to be protected it must be used “exclusively” for a medical purpose during its relief mission. This raises questions as to whether the exclusivity of use refers to the aircraft’s entire round trip or to simply a particular leg of the aircraft’s route. The point is overshadowed, however, by the ultimate need for an agreement.
(4) Flights over enemy or enemy-occupied territory are prohibited unless agreed otherwise.
(5) Summons to land and Inspection. This is a means by which belligerents can ensure that the enemy is not abusing its use of medical aircraft. Consequently, a summons to land must be obeyed. Aircraft must submit to an examination by the forces of the summoning Party. If not committing acts contrary to its protected status, medical aircraft should be allowed to continue.
(6) Involuntary landing.
(i) Occurs as the result of engine trouble or bad weather.
(ii) Aircraft may be used by the captor for any purpose. Materiel will be governed by the provisions of GC I, arts. 33 and 34.
(ii) Personnel are retained personnel or POWs, depending on their status.
(iii) Care must still be provided to the wounded and sick.
(7) AP I and Medical Aircraft.
(i) The inadequacy of GC I, art. 36, in light of growth of use of medical aircraft, prompted an overhaul of the regime in AP I. AP I establishes three overflight regimes:
(a) Land controlled by friendly forces: No agreement between the parties is required for the aircraft to be respected and protected; however, the article recommends that notice be given, particularly if there is a SAM threat.
(b) Contact Zone (disputed area): Agreement required for absolute protection. However, enemy is not to attack once aircraft identified as medical aircraft.
(c) Land controlled by enemy: Overflight agreement required. Similar to GC I, art. 36(3) requirement.
(ii) Known medical aircraft shall be respected and protected when performing their humanitarian functions. The duty to identify a medical aircraft belongs to the Party flying the aircraft. Distinctive signals (radio, flashing blue lights, and electronic identification) are ways an aircraft can actively identify itself as a medical aircraft.
(iii) AP I, art. 28, specifically prohibits medical aircraft from being used “to acquire any military advantage over an adverse Party.” Article 28 also specifically prohibits medical aircraft from gathering intelligence, performing search and rescue missions, or to be armed with more than defensive weapons.
7. Parachutists vs. Paratroopers. Descending paratroopers are presumed to be on a military mission and therefore may be targeted. Parachutists are pilots and crew members of a disabled/downed aircraft. They are presumed to be out of combat and may not be targeted unless it is apparent they are engaging in hostile acts or are taking steps to resist or evade capture while descending. Parachutists “shall be given the opportunity to surrender before being made the object of attack.”[204]
8. Distinctive Emblems
a. Emblem of the Conventions and Authorized Exceptions.
(1) Red Cross. The distinctive emblem of the conventions.
(2) Red Crescent. Authorized exception.
(3) Red Lion and Sun. Authorized exception that has since been withdrawn.
(4) Red Crystal. On 14 January 2007, the Third Additional Protocol to the 1949 Geneva Conventions (AP III) entered into force. AP III established an additional emblem—the red crystal—for use by Governments and the International Red Cross and Red Crescent Movement. The red crystal offers the same protection as the red cross and the red crescent when marking military medical personnel, establishments, and transport; the staff of national societies; staff, vehicles and structures of the ICRC and the International Federation. The United States is a party to AP III.
b. Identification of Medical and Religious Personnel.
(1) The protections given to medical and religious personnel are, as a practical matter, accorded by the armband and the identification card.[212] The armband identifies protection from intentional attack on the battlefield. The identification card indicates “retained person” status.
(2) Permanent medical personnel, chaplains, personnel of National Red Cross and other recognized relief organizations, and relief societies of neutral countries are also entitled to protections. They may wear an armband displaying the distinctive emblem, and may carry an identification card identifying their status. Confiscation of ID cards by a captor is prohibited.
(3) Auxiliary personnel wear an armband displaying the distinctive emblem in miniature and carry an ID card indicating special training and temporary character of medical duties.
c. Marking of Medical Units and Establishments. The distinctive flag of the Convention (e.g., the Red Cross) may be hoisted only over such medical units and establishments that are entitled to be respected under GC I. It may be accompanied by the national flag of the Party to the conflict; however, if captured, the unit will fly only the Red Cross flag. Medical Units of Neutral Countries shall fly the Red Cross flag, national flag, and the flag of belligerent being assisted. If captured, will fly only the Red Cross flag and their national flag.
d. Authority over the Emblem. The use of the emblem by medical personnel, transportation, and units is subject to “competent military authority.” The commander may give or withhold permission to use the emblem, and the commander may order a medical unit or vehicle camouflaged. While the Convention does not define who is a competent military authority, it is generally recognized that this authority is held no lower than the brigade commander (generally O-6) level.[224] It is not a violation of the LOAC to not display the emblem, but may result in the forfeit of protected status. Valid reasons for not displaying the emblem include camouflage or because the enemy does not respect the emblem.
e. The emblem of the red cross on a white ground and the words “Red Cross” or “Geneva Cross” may not be employed, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the personnel and material protected by GC I. “The use by individuals, societies, firms or companies . . . of the emblem . . . shall be prohibited at all times.”
D. The Second Geneva Convention (GC II)
1. Extensive coverage of GC II may be found in other military publications, and the law of naval operations is covered later in this publication. What follows is a brief summary of some of the GC II provisions a Judge Advocate is more likely to encounter during military operations.
2. In addition to providing protections for those who are wounded and sick at sea, GC II provides protections for those who are shipwrecked. Like the term “wounded and sick,” the term “shipwrecked” is not defined apart from saying that it includes shipwrecks “from any cause and includes forced landings at sea by or from aircraft.” AP I, art. 8(2) provides a more detailed definition of “shipwrecked” to mean “persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them.” “Shipwrecked persons include those in peril at sea or in other waters as a result of the sinking, grounding, or other damage to a vessel in which they are embarked, or of the downing or distress of an aircraft.”[232] The term “shipwrecked” includes both military personnel and civilians.[233]
3. Hospital ships. GC II adds hospital ships to the list of objects protected by the Geneva Conventions. Military hospital ships, which are to be marked in the manner specified by GC II, art. 43, may not be attacked or captured, and must be respected and protected. Their names and descriptions must be provided to the Parties to the conflict ten days before those ships are employed.
a. Hospital ships must be used exclusively to assist, treat, and transport the wounded, sick, and shipwrecked. The protection to which hospital ships are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.
b. Traditionally, hospital ships could not be armed, but crew members could carry light individual weapons for the maintenance of order, their own defense, and the defense of the wounded, sick, and shipwrecked. Due to the changing threat environment (e.g. refusals of some hostile groups / actors to recognize the protection afforded by the distinctive emblem), the United States views the manning of hospital ships with defensive weapons systems (e.g. anti-missile defense systems or crew-served weapons to defend against small boat threats) as prudent force protection measures. These protections are analogous to arming crew members with small arms, and are consistent with the humanitarian purpose of hospital ships.[240]
c. GC II, art. 34 provides that hospital ships may not use or possess “secret codes” as means of communication. Subsequent technological advances in encryption and satellite navigation, while recognized as problematic, have not been specifically addressed by treaty. As a practical matter, modern navigational technology requires that the traditional rule prohibiting “secret codes” be understood to not include modern encryption communication systems.[242]
d. A hospital ship in a port that falls into the hands of the enemy is authorized to leave the port.
e. Retained Personnel and Wounded and Sick Put Ashore. The religious, medical, and hospital personnel of hospital ships retained to care for the wounded and sick are, on landing, subject to GC I. Other forces put ashore become subject to GC III.
E. The Third Geneva Convention (GC III)
1. General Provisions—Protections for Prisoners of War (POW).[246]
a. Detainees. POW status arises only during international armed conflicts of the kind described in Common Article 2 of the Geneva Conventions.[247] In non-international armed conflict, Common Article 3 applies.[248] During peacekeeping situations (e.g., Somalia, Haiti, Bosnia, as discussed above), or other situations where armed conflict does not exist, persons who commit hostile acts against U.S. forces or serious criminal acts resulting in their capture would not be entitled to POW protection. These persons may be termed “detainees” but would not be considered POWs. Regardless of a detainee’s legal status, it is DoD Policy that all detainees will be treated in accordance with Common Article 3.[249]
b. Surrender. Surrender may be communicating the intent to give up the fight. To place a person hors de combat, surrender must be genuine, clear and unconditional, and under circumstances where it is feasible for the opposing party to accept the surrender (note that this is an extremely narrow exception—see the Law of War manual for details).[250] Captors must respect (not attack) and protect (care for) those who surrender—reprisals are prohibited.[251]
c. Identification and Status. Combat often results in the capture of a wide array of individuals. DoD Directive 2311.01, the DoD Law of War Program, states that U.S. forces will comply with the LOAC regardless of how the conflict is characterized. In future conflicts, JAs should advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the protections of GC III, at least until their status has been determined.[252] In that regard, recall that “status” is a legal term, while “treatment” is descriptive. When drafting or reviewing guidance to Soldiers, ensure that the guidance mandates treatment, not status. For example, a TACSOP should state that persons who have fallen into the power of U.S. Forces will be “treated as POWs,” not that such persons “will have the status of POW.” When doubt exists as to whether captured enemy personnel warrant continued POW status, Article 5 (GC III) Tribunals must be convened. It is important that JAs be prepared for such tribunals.
d. Treatment. There is a legal obligation to provide a wide array of rights and protections to POWs, including adequate food,[254] facilities,[255] and medical aid.[256] This obligation poses significant logistical problems in fast-moving tactical situations; thus, JAs must be aware of how to meet this obligation while placing a minimum burden on operational assets.[257] POWs must be protected from physical and mental harm.[258] They must be transported from the combat zone as quickly as circumstances permit. Subject to valid security reasons, POWs must be allowed to retain possession of their personal property, protective gear, valuables, and money. These items must not be taken unless properly receipted for and recorded as required by GC III. In no event can a POW’s rank, insignia, decorations, personal effects (other than weapons or other weapons that might facilitate escape), or identification cards be taken. These protections continue through all stages of captivity, including interrogation.
2. History of Prisoners of War
a. “In ancient times, the concept of “prisoner of war” [259] was unknown and the defeated became the victor’s ‘chattel.’”[260] The captive could be killed, sold, or put to work at the discretion of the captor. No one was as helpless as an enemy prisoner of war. Greek, Roman, and European theologians and philosophers wrote on the subject of POWs. However, treatment of POWs was still by and large left to military commanders.[261]
b. The American War of Independence. For the colonists, it was a revolution. For the British, it was an insurrection. The British, saw the colonists as the most dangerous of criminals, traitors to the empire, and threats to state survival. The British, therefore, prepared to try colonists for treason at the war’s onset. In time however, British forces begrudgingly recognized the colonists as belligerents and this plan was discarded. However, colonists that were captured were subjected to inhumane treatment and neglect. There were individual acts of mistreatment by American forces of the British and Hessian captives; however, General Washington appears to have been sensitive to the welfare of POWs. He took steps to prevent abuse.[262]
c. American Civil War. At the outset, the Union forces did not view the Confederates as professional Soldiers deserving protected status. They were considered nothing more than armed insurrectionists. As Confederate forces captured large numbers of Union prisoners, it became clear to President Lincoln that his only hope for securing humane treatment for his troops was to require proper treatment of Confederate soldiers. President Lincoln issued General Order No. 100, “Instructions of the Government of Armies of the United States in the Field,” known as the Lieber Code. The Lieber Code provided several protections for Confederate prisoners.
(1) Although the Lieber Code went a long way in bringing some humanity to warfare, some traditional views regarding POWs prevailed. For example, Article 60 of the Code provides: “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.”[263]
(2) The Union and Confederate armies operated a “parole” or prisoner exchange system.[264] The Union stopped paroling southern Soldiers for several reasons, most notably its significant numerical advantage. It was fighting a war of attrition and POW exchanges did not support that effort. This Union decision likely impacted the already poor conditions in southern POW camps due to the additional strain on resources when the Confederate army could barely sustain itself.[265]
(3) Captured enemy have traditionally suffered great horrors as POWs. Most Americans associate POW maltreatment during the Civil War with the Confederate camp at Andersonville. However, maltreatment was equally brutal at Union camps. In the Civil War 26,486 Southerners and 22,576 Northerners died in POW camps.[266]
(4) Despite its national character and Civil War setting, the Lieber Code went a long way in influencing European efforts to create international rules dealing with the conduct of war.
d. The first multilateral international attempt to regulate the handling of POWs occurred in 1907 with the promulgation of the Hague Regulations Respecting the Laws and Customs of War on Land (HR). Although the HR gave POWs a definite legal status and protected them against arbitrary treatment, the Regulations were primarily concerned with the methods and means of warfare rather than the care of the victims of war. Moreover, the initial primary concern was with the care of the wounded and sick rather than POWs.[267]
e. World War I. The Hague Regulations proved insufficient to address the treatment of the nearly 8,000,000 POWs taken in WWI. Germany was technically correct when it argued that the Hague Regulations were not binding because not all participants were signatories.[268] According to the regulations, all parties to the conflict had to be signatories if the Regulations were to apply to any of the parties. If one belligerent was not a signatory, then all parties were released from mandatory compliance. The result was the inhumane treatment of POWs in German control.
f. Geneva Convention Relative to the Treatment of Prisoners of War in 1929. This convention complemented the requirements of the 1907 Hague Regulations and expanded safeguards for POWs. This convention applied even if all parties to a conflict were not signatories.
g. World War II. Once again, all the participants were not signatories to the relevant treaties protecting POWs. Arguably, this was a large contributing factor in the maltreatment of POWs during the war. The gross maltreatment of POWs constituted a prominent part of the indictments preferred against the Germans and Japanese in the post-World War II war crimes trials.
(1) Prior to World War I, the Japanese had signed, but not ratified, the 1929 Geneva Convention. They had reluctantly signed the treaty as a result of international pressure but ultimately refused to ratify it. The humane treatment of POWs was largely a western concept. During the war, the Japanese were surprised at the concern for POWs. To many Japanese, surrendering Soldiers were traitors to their own countries and a disgrace to the honorable profession of arms.[269] As a result, most POWs in the hands of the Japanese during World War II were subject to extremely inhumane treatment.
(2) In Europe, the Soviet Union had refused to sign the 1929 Geneva Convention, which provided the Germans with the legal argument to deny its protections to Soviet POWs. In Sachsenhausen alone, some 60,000 Soviet POWs died of hunger, neglect, flogging, torture, and execution in the winter of 1941-42. In turn, the Soviets retained many German POWs in the U.S.S.R. some twelve years after the close of hostilities.[270] Generally speaking, the regular German army did treat American and British POWs comparatively well. The same cannot be said about the treatment Americans experienced at the hands of the German Schutzstaffel (SS) or Sicherheitsdienst des Reichsführers (SD)[271]
(3) The post-World War II war crimes tribunals determined that international law regarding the treatment of POWs had become customary international law (CIL) by the outset of hostilities. Therefore, individuals could be held criminally liable for the mistreatment of POWs whether the perpetrators or victims were from States that had signed the various international agreements protecting POWs.[272]
h. Geneva Convention Relative to the Treatment of Prisoners of War in 1949 (GC III). The experience of World War II resulted in the expansion and codification of the laws of war in four Geneva Conventions of 1949. International armed conflict triggers the full body and protections of the Geneva Conventions.[273] In such a conflict, signatories must respect the Convention in “all circumstances.” This language means that parties must adhere to the Convention unilaterally, even if not all belligerents are signatories. There are provisions that allow non-signatories to decide to be bound.[274] Moreover, with the exception regarding reprisals, all parties must apply the rules of the treaty even if the protections are not being applied reciprocally. The proper treatment of POWs has now risen to the level of CIL.
i. 1977 Additional Protocols I to the 1949 Geneva Conventions (AP I). The U.S. is not a party to this Protocol, though it adopts some of its provisions as CIL. It creates no new protections for prisoners of war. However, it expanded the definition of “status”—those who are entitled to the POW protections in international armed conflict.[275]
3. Prisoner of War Status as a Matter of Law
a. Important Terminology.
(1) Prisoners of War: A detained person as defined in GC III, art. 4.
(2) Civilian Internees: A civilian who is interned during armed conflict or occupation for security reasons, for protection, or for offenses against the detaining power.[276] Also, a term used to refer to persons interned and protected in accordance with GC IV.[277]
(3) Retained personnel: Medical and religious personnel retained by the Detaining power with a view and need of assisting fellow POWs.[278]
(4) Detainee: Any person captured, detained, held, or otherwise under the control of DoD personnel (military, civilian, or contractor employee). [279] It includes any person held during operations other than war. This is the default term to use when discussing persons who are in custody of U.S. armed forces.
(5) Refugee: A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country.[280]
(6) Dislocated civilian: a “broad term” that “includes a displaced person, an evacuee, an IDP [internally displaced person], a migrant, a refugee, or a stateless person.”[281] Displaced person is broad term “used to refer to internally and externally displaced persons collectively.”[282]
b. To achieve POW status, the individual must be the right kind of person in the right kind of conflict. POW status is only given in an International Armed Conflict (also known as a Common Article 2 conflict (CA2)). The status of POW is not recognized in a Non-International Armed conflict (Common Article 3 conflict (CA3)). Not all hostile actors in a CA2 conflict are entitled, however, to POW status. Captured persons must also belong to one of the groups of fighters described in Article 4 of GC III. The question of status is enormously important. There are two primary benefits of POW status. First, POWs receive immunity for warlike acts (i.e., any acts of killing and breaking things are not criminal). Second, POWs are entitled to all the rights, privileges, and protections under GC III. One of those rights is that the prisoner is no longer a lawful target.
c. The Right Kind of Person for GC III Protections.
(1) Once a conflict rises to the level of a CA2 international armed conflict, parties should look to GC III, art. 4 to determine who is entitled to POW status. Traditionally, persons were only afforded POW status if they were members of the regular armed forces involved in an international armed conflict. GC III also includes members of militias or resistance fighters belonging to a party to an international armed conflict if they meet the following criteria:
(a) Commanded by a person responsible for subordinates;
(b) Fixed distinctive insignia recognizable at a distance;[283]
(c) Carrying arms openly;[284] and,
(d) Conducting their operations in accordance with the laws and customs of war.
(2) In addition, numerous other persons detained by military personnel are entitled to POW status if “they have received authorization from the armed forces which they accompany.” (i.e., possess a GC identity card from a belligerent government). Specific examples include:
(a) Contractors;[285]
(b) War Correspondents;[286]
(c) Civilian members of military aircraft crews;[287]
(d) Merchant marine and civil aviation crews;[288]
(e) Persons accompanying armed forces (dependents);[289] and
(f) Mass Levies (Levée en Masse).[290] To qualify these civilians must:
(i) Be in non-occupied territory;
(ii) Act spontaneously to the invasion;
(iii) Carry their arms openly; and,
(iv) Respect the laws and customs of war.
(g) This is NOT an all-inclusive list. One’s status as a POW is a question of fact. One factor to consider is whether the individual is in possession of an identification card issued by a belligerent government. Prior to 1949, possession of an identification card was a prerequisite to POW status.[291]
(3) Medical and religious personnel (Retained Personnel) receive the protections of GC III.[292]
(a) Retained personnel are repatriated as soon as no longer needed to care for POWs.
(b) Of note, retained status is not limited to doctors, nurses, Corpsmen, etc. This status also includes, for example, the hospital clerks, cooks, and maintenance workers.[293]
(4) Persons whose POW status is debatable:[294]
(a) Deserters/Defectors;[295]
(b) Saboteurs;[296]
(c) Military advisors;[297]
(d) Belligerent diplomats;[298]
(e) Mercenaries (AP I, art. 47);[299] and
(f) U.N. personnel during U.N. peace missions.[300]
(5) Spies are not entitled to POW status (HR, art. 29, and AP I, art. 46).
d. When POW’s Status is in Doubt.
(1) Article 5, GC III: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
(2) AR 190-8[301] provides guidance on how to conduct an Article 5 Tribunal.
(a) A General Court-Martial Convening Authority appoints the tribunal.
(b) There are to be three voting members, the president must be a field grade officer, and one nonvoting recorder, preferably a Judge Advocate.
(c) The standard of proof is “preponderance of the evidence.” The regulation does not place the burden of proof or production on either party. The tribunal should not be viewed as adversarial as the recorder need not be a judge advocate and there is no right to representation for the subject whose status is in question.
(d) If a Combatant Commander has a regulation or policy on how to conduct an Article 5 Tribunal, the Combatant Commander’s regulation controls. For example, see CENTCOM Regulation 27-13.[302]
4. Primary Protections Provided to Prisoners of War
a. Protection “Top Ten.”
(1) Humane Treatment[303] (GC III, art. 13)
(2) Prohibition against medical experiments (GC III, art. 13)
(3) Protection from violence, intimidation, insults, and public curiosity[304] (GC III, art. 13)
(4) Equality of treatment (GC III, art. 16)
(5) Free maintenance and medical care (GC III, art. 15)
(6) Respect for person and honor (specific provision for female POWs) (GC III, art. 14)
(7) No Reprisals (GC III, art. 13)
(8) No Renunciation of Rights or Status (GC III, art. 7)
(9) The Concept of the Protecting Power, especially the ICRC (GC III, art. 8)
(10) Immunity for warlike acts, but not pre-capture criminal offenses or violations of the LOAC[305]
b. Post-Capture Procedures
(1) Authority to detain can be expressly granted in the mission statement; implied with the type of mission; or inherent under the self-defense/force protection umbrella.
(2) The protection and treatment rights, as well as the obligations begin “from the time they fall into the power of the enemy . . . .”[306] (GC III, art. 5)
(3) POWs can be secured with handcuffs (flex cuffs) and blindfolds, as well as shirts pulled down to the elbows, as long as it is done humanely (cannot be for humiliation/intimidation purposes).
(a) Protect against public curiosity.
(i) GC III, Art. 13 does not per se prohibit photographing a POW. The prohibition extends to photographs that degrade or humiliate a POW. With respect to POWs, there is some value added in disseminating photographs since it gives family members assurance that their loved one is alive. Bottom line: strict guidelines required.[307]
(ii) This is in stark contrast to Iraq and North Vietnam’s practice of parading POWs before the news media.
(b) POW capture tags. All POWs will, at the time of capture, be tagged using DD Form 2745.[308]
(4) Property of Prisoners. (GC III, art. 18)
(a) Weapons, ammunition, equipment, or documents with intelligence value will be confiscated and turned over to the nearest intelligence unit. (AR 190-8)
(b) POWs and retained personnel are allowed to retain personal effects such as jewelry, helmets, canteens, protective mask and chemical protective garments, clothing, identification cards and tags, badges of rank and nationality, and Red Cross brassards, articles having personal or sentimental value and items used for eating except knives and forks. [309]
(5) Rewards for the capture of POWs are permissible, but they must avoid even the hint of a “wanted dead or alive” mentality.[310]
(6) What can I ask a POW? Anything!
(a) All POWs are required to give: (GC III, art. 17)
(i) Surname, first name;
(ii) Rank;
(iii) Date of birth; and,
(iv) Service number.
(b) Treat POWs who refuse to provide rank as that of the lowest enlisted rank.[311]
(c) No torture, threats, coercion in interrogation (Art. 17, GC III). It’s not what you ask but how you ask it.[312]
(d) The U.S. military ID card doubles as the Geneva Conventions identification card. Note: Categories are I to V, which corresponds to respective rank. (GC III, art. 60)
5. POW Camp Administration and Discipline
a. Responsibility. (GC III, art. 12). The State (Detaining Power) is responsible for the treatment of POWs. POWs are not in the power of the individual or military unit that captured them. They are in the hands of the State itself, of which the individuals or military units are only agents.[313]
b. Locations.
(1) Land only. (GC III, art 22). However, during the Falklands War, the British temporarily housed Argentine POWs on ship while in transit to repatriation.
(2) Not near military targets.[314] (GC III, art. 23). During the Falklands War, several Argentine POWs were accidentally killed while moving ammunition away from their billets.
(3) Certain detainees, specifically suspected Somali Pirates, have been held aboard U.S. Navy warships for brief periods. In one case, the detainee was held for over two months. POWs must be assembled into camps based upon their nationality, language, and customs. (GC III, art. 22)
(4) Generally, cannot segregate prisoners based on religion or ethnic background.[315] However, segregation by these beliefs may be required when they are a basis for the conflict. Such as in Yugoslavia: Serbs, Croats, and Muslims; Rwanda: Hutus, Tutsis; and Iraq: Sunni and Shia.
(5) Political beliefs. GC III, art. 38 encourages the practice of intellectual pursuit. However, the U.N. experience in POW camps demonstrated that pursuit of political beliefs can cause great discipline problems within a camp. In 1952, on Koje-do Island, riots broke out at the POW camps instigated by North Korean POW communist activists. Scores of prisoners sympathetic to South Korea were murdered by North Korean POW extremist groups. During the rioting, POWs captured the camp commander, Brigadier General Dodd.[316]
c. What Must Be Provided?
(1) Quarters equal to that provided to Detaining forces; total surface and minimum cubic feet, bedding, lighting, etc. (GC III, art. 25)
(2) Adequate clothing considering climate. (GC III, art. 27)
(3) Canteen. [317] (GC III, art. 28)
(4) Tobacco.[318] (GC III, art. 26)
(5) Recreation. (GC III, art. 38)
(6) Religious accommodation. (GC III, art. 34)
(7) Food accommodation (GC III, arts. 26, 34); if possible, utilize enemy food stocks and let POWs prepare their own food.
(8) Copy of GC III in POWs own language. Copies available at: www.icrc.org.
(9) Due process. (GC III, arts. 99-108)
(10) Hygiene (GC III, art. 29); separate baths, showers and toilets must be provided for women prisoners of war.
d. POW Accountability.[319] (GC III, arts. 122, 123)
(1) Capture notification–PWIS (Prisoner of War Information System). The PWIS is now known as the National Detainee Reporting Center (NDRC).
(2) POW deaths. (GC III, arts. 120, 121). Any death or serious injury to a POW requires an official inquiry. Look to theater-specific SOPs to provide additional guidance on the appointing authority and routing system for the investigation or inquiry into a POW death or serious injury.
(3) Reprisals against POWs are prohibited. (GC III, art. 13)
e. Transfer of POWs. (GC III, arts. 46-48)
(1) Belligerent can only transfer POWs to nations which are parties to the Convention.
(2) Detaining Power remains responsible for POW care.
(a) There is no such thing as a “U.N.” or “coalition” POW.[320]
(b) To ensure compliance with the GC III, U.S. Forces routinely establish liaison teams and conduct GC III training with allied forces prior to transfer POWs to that nation.[321]
f. Complaints and Prisoners’ Representatives.
(1) The primary rights and duties/oversight responsibilities of Prisoner Representatives are set forth in the following articles of GC III: 57, 78-81, 98, 104, 107, 125, and 127.
(2) There is the potential for conflict of the Prisoner Representative duties with the Code of Conduct Senior Ranking Officer (SRO) requirement.[322]
(3) The SRO will take command, regardless of the identification of the Prisoners Representative.
g. POW Labor.[323] (GC III, arts. 49-57)
(1) Rank Matters.
(a) Officers cannot be compelled to work.
(b) NCOs can be compelled to supervise only.
(c) Enlisted can be compelled to do manual labor.
(d) If enlisted POWs work, they must be paid.
(e) Retained Personnel shall not be required to perform any work outside their medical or religious duties. This is an absolute prohibition that includes work connected to the administration and upkeep of the camp. (GC I, art. 28(c))
(2) Compensation.[324] (GC III, art. 60). 8 days paid vacation (GC III, art. 53)
(3) Type of Work.
(a) Work cannot be unhealthy or dangerous, unless the POW volunteers. Work cannot be humiliating. (GC III, art. 52)
(b) Work such as camp administration, installation, and maintenance is authorized, as well as work relating to agriculture; commercial business, and arts, and crafts; and domestic service without restriction to military character or purpose.[325]
(c) Industry work (other than in the metallurgical, machinery, and chemical industries); public works and building operations; transport and handling of stores; and public utility services is authorized provided it has no military character or military purpose. (GC III, art. 50)
(d) Work in the metallurgical, machinery, and chemical industry is strictly prohibited. (GC III, art. 50)
h. Camp Discipline.
(1) Disciplinary sanctions.
(a) Must relate to breaches of camp discipline.
(b) Only four types of punishments (UCMJ Art. 15-type punishments) are authorized (GC III, arts. 89, 90). The maximum punishments are:[326]
(i) Fine: ½ pay up to 30 days.
(ii) Withdrawal of privileges, not rights.
(iii) 2 hours of fatigue duty per day for 30 days.
(iv) Confinement for 30 days.
(c) Imposed by the camp commander. (GC III, art. 96)
(2) Judicial sanctions.
(a) POWs: Pre-capture v. post-capture.
(i) Pre-capture: General court-martial or federal or state court prosecution if they have jurisdiction over U.S. Soldier for the same offense.[327] (GC III, arts. 82, 85)
(ii) Post-capture: any level court-martial allowed under UCMJ. Jurisdiction for post-capture offenses is found under Art. 2(9), UCMJ.
(iii) Court-martial or military commission.[329] (GC III, art. 84) [But note effect of GC III, art. 102, is that U.S. must use a court-martial unless policy is changed to allow trial of a U.S. service members before a military commission.]
(b) Due process required.
(i) POWs: same due process as that provided to the Detaining Power’s own military forces. (GC III, arts. 99-108)
(ii) Right to appeal. (GC III, art. 106)
i. Escape.
(1) When is an escape deemed successful? (GC III, art. 91)
(a) Service member has rejoined their, or an ally’s, armed forces;
(b) Service member has left the territory of the Detaining Power or its ally; (i.e., entered a neutral country’s territory);
(c) Service member has joined a ship flying the flag of the Power on which the service member 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.[330]
(2) Unsuccessful escape.
(a) Only disciplinary punishment for the escape itself. (GC III, art. 92)
(b) Offenses in furtherance of escape.
(i) Disciplinary punishment only: [331] If sole intent is to facilitate escape and no violence to life or limb, or self-enrichment. (GC III, art. 93) For example, a POW may wear civilian clothing during escape attempt without losing their POW status.[332]
(ii) Judicial punishment: if violence to life or limb or self-enrichment. (GC III, art. 93)
(3) Successful escape.
(a) Some authors argue no punishment can be imposed for escape or violence to life or limb offenses committed during escape if later recaptured. (GC III, art. 91)
(b) However, most authors posit that judicial punishment can occur if a POW is later recaptured for his or her previous acts of violence.
(c) As this issue is still debated, so U.S. policy is not to return successfully escaped POW to same theater of operations.
(4) Use of force against POWs during an escape attempt or camp rebellion is lawful. Use of deadly force is authorized “only when there is no other means of putting an immediate stop to the attempt.”[333]
j. Repatriation of Prisoners of War.[334]
(1) Sometimes required before cessation of hostilities. (GC III, art. 109)
(a) Sick and wounded if recovery is expected to take more than 1 year. (GC III, art. 110)
(b) Incurably sick and wounded. (GC III, art. 110)
(c) Permanently disabled, physically or mentally. (GC III, art. 110)
(2) After cessation of hostilities.
(a) GC III, art. 118, provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
(b) Rule followed World War II. Result: thousands of Russian POWs executed by Stalin upon forced repatriation.
(c) U.N. command in Korea first established principle that POWs do not have to be repatriated, if they do not so wish.[335]
F. The Fourth Geneva Convention (GC IV)
1. General Provisions—Protections for Civilians. LOAC provides extensive protections for civilians. This section briefly summarizes several of those protections:
a. General Rule. Specific rules for the protection of civilians may be grouped into two categories: (1) essentially negative duties to respect civilians and to refrain from directing military operations against them; and (2) affirmative duties to take feasible precautions to protect civilians and other protected persons and objects.[336] While the term “civilian” is used in different ways in the law of war,[337] in general a civilian is “a person who is neither part of nor associated with an armed force or group, nor otherwise engaging in hostilities.”[338] “Protected Person” is a term of art under Geneva Convention IV that refers to two specific categories of civilians that have individualized law of war protections, discussed below.
b. Specific Protections.
(1) Civilian Medical and Religious Personnel. Such personnel shall be respected and protected.[339] They receive the benefits of the provisions of the Geneva Conventions and the Protocols concerning the protection and identification of medical personnel so long as they do not engage in acts inconsistent with their protected status.
(2) Journalists. Protected as “civilians” provided they take no action inconsistent with their status.[340] Engaging in journalism does not constitute taking a direct part in hostilities. If captured while accompanying military forces in the field, a journalist or war correspondent is entitled to POW status.[341]
(3) Personnel Engaged in the Protection of Cultural Property.[342] Article 15 of the 1954 Hague Cultural Property Convention established a duty to respect (not directly attack) persons protecting such property. These individuals are treated like military medical and religious personnel.[343]
(4) Contractors. Civilians who accompany the armed forces in the field in time of armed conflict are protected from direct attack unless and for such time as they take a direct part in hostilities (DPH).[344] They may be at risk of death or injury incident to lawful enemy attacks on military objectives. If captured, they are entitled to POW status, pursuant to GC III, Article 4(4). See the next section for a discussion of DPH.
c. Exception to General Rule: Direct Participation in Hostilities.[345] Civilians who take a direct part in hostilities forfeit protection from being made the object of attack. This rule will be discussed in more detail.
2. The Definition of “Civilian” under the LOAC
a. Background. Although the concept of distinction between combatants and civilians dates back to the very foundations of the LOAC, the term “civilian” had no precise definition in the LOAC until 1977 with the advent of AP I applicable to International Armed Conflicts (IACs). The U.S., however, objects to the definition of “civilian” in AP I, art. 50.[346] The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) provides protections for civilians during IACs but it does not define the term “civilian.” For non-international armed conflicts (NIACs), neither Common Article 3 nor AP II contains a specific definition of the term “civilian,” and, as the ICRC has noted in its work described below, customary international law (CIL) does not provide a clear definition either. Further, while the ICRC espouses the view that during armed conflict a person is either a combatant or a civilian, and thus civilians are those who are not combatants, the U.S. recognizes a third group of “mixed cases” for certain classes of persons who do not fit neatly within the combatant or civilian category.[347] One of these classes includes “unprivileged belligerents”[348] or “unprivileged enemy belligerents.”[349] The key take away from this background is an understanding that determining whether a person is a civilian entitled to LOAC protections requires an analysis of the facts; including the type of conflict; and the law applicable to those facts consistent with the Law of War Manual’s general usage of the term “civilian” referenced above.
b. International Armed Conflict.
(1) GC IV and AP I.[350] GC IV does not define the term “civilian”; rather, it uses the term “protected persons” to refer to those persons protected by the convention. However, AP I, art. 50 defines “civilian” as “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.” AP I, art. 43 states that “[t]he armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” As the AP I Commentary explains, the Protocol contains a “negative definition” of civilian, which “follows a process of elimination and removes from the definition those persons who could by and large be termed ‘combatants.’”[351] AP I, art. 50 also defines a “civilian” as anyone who is not a “combatant,” (“In case of doubt whether a person is a civilian, that person shall be considered to be a civilian”); the U.S. objected to AP I’s definition of combatant and did not ratify AP I largely because of its relaxed approach to combatant and civilian status that the U.S. considers harmful and inconsistent with customary international law.[352]
(2) Customary International Law. Remember that States also are bound by CIL, which is typically formed over time by the general and consistent practice of States followed from a sense of legal obligation (opinio juris). Determining CIL is not as precise an exercise as looking up a statute or even interpreting the holding of a judicial opinion. A thorough analysis (which cannot be completed in this handbook) should consider any existing U.S. views on the particular provision as well as other sources of CIL.
(a) U.S. Views. The DoD Law of War Manual and FM 6-27 contain the most current position of the Department of Defense on the law of war. Included in the Manual is a discussion on the U.S. position on AP I and AP II.[353]
(i) Prior to the publication of the DoD Law of War Manual, the most comprehensive U.S. statement on whether AP I provisions are considered CIL was a 1986 memorandum signed by attorneys from each of the four services for Mr. John McNeill, the Assistant General Counsel for International Affairs in the Secretary of Defense’s Office.[354] At the time of that memo, the U.S. did not view the definition of “civilians” found in AP I, art. 50 “as already part of customary international law” or “supportable for inclusion in customary law through state practice.”[355]
(ii) Another U.S. position on whether certain AP I provisions relevant to civilian protections are “deserving of treatment as customary law” is found in remarks made in 1987 by Mr. Michael Matheson, Deputy Legal Advisor, U.S. Department of State, at the Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law.[356] In his remarks, Mr. Matheson commented on U.S. support for certain principles espoused in various Articles of AP I, and stated that such principles “should be observed and in due course recognized as customary international law, even if they have not already achieved that status.”[357] Mr. Matheson did not comment on AP I, art. 50 or its definition of “civilians.”
(b) Other References.
(i) The ICRC CIL Database,[358] launched in August 2010 and built in large part upon the ICRC’s study of CIL that it began in 1996 and published in 2005, contains two parts. The first part contains an analysis of CIL, and part two is a summary of State practice underlying those rules. The second part is updated regularly. Note, however, that the U.S. has disagreed with the ICRC’s methodology used to determine many of the rules listed in its study and CIL Database.[359]
(ii) The ICRC CIL Database defines “civilians” for the purposes of IACs as “persons who are not members of the armed forces” and cites AP I, art. 50 and other sources as support for the customary status of the rule.[360]
(iii) The ICRC CIL Database excepts out of its customary definition of “civilians” applicable in IACs the levée en masse (“inhabitants of a country which has not yet been occupied, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force”).[361]
c. Non-International Armed Conflict.
(1) Geneva Conventions CA 3 and AP II. Common Article 3 does not contain a precise definition of the term “civilian” for application in NIACs. It does, however, require “each Party to the conflict” to treat humanely “persons taking no active part in the hostilities” and it also lists specific acts that are prohibited against such persons. AP II provides specific protections for civilians during NIACs,[362] but it also does not contain a precise definition of the term “civilian.”
(2) Customary International Law.
(a) U.S. Views. The U.S. has not expressed an official position on the customary status of a definition of civilians applicable in NIACs.
(b) Other References.
(i) The ICRC CIL Database recognizes the absence of any precise definition of the term “civilian” in AP II but asserts that “[i]t can be argued that the terms ‘dissident armed forces or other organized armed groups … under responsible command’ in Article 1 of Additional Protocol II inferentially recognized the essential conditions of armed forces, as they apply in international armed conflict, . . . and that it follows that civilians are all persons who are not members of such forces or groups.”[363]
(ii) The ICRC CIL Database also provides that “practice is not clear as to whether members of armed opposition groups are civilians subject to [ICRC CIL Database] Rule 6 on loss of protection from attack in case of direct participation or whether members of such groups are liable to attack as such, independently of the operation of Rule 6.”[364]
(iii) Note, however, that the U.S. has disagreed with the ICRC’s methodology used to determine many of the rules listed in its study and CIL Database.[365]
3. Development of Civilian Protections During Armed Conflict
a. Historical Background. Although the LOAC did not precisely define the term “civilian” until 1977, the concept of protecting civilians during conflict is ancient. Historically, three considerations motivated implementation of such protections.
(1) Desire of sovereigns to protect their citizens. Based on reciprocal self-interests, ancient powers entered into agreements, followed codes of chivalry, or issued instructions to soldiers in the hope similar rules would protect their own land and people if they fell under their enemy’s control.
(2) Facilitation of strategic success. Military and political leaders recognized that enemy civilians who believed that they would be well treated were more likely to surrender and cooperate with occupying forces. Sparing the vanquished from atrocities facilitated ultimate victory.
(3) Desire to minimize the devastation and suffering caused by war. Throughout history, religious leaders, scholars, and military professionals advocated limitations on the devastation caused by conflict. This rationale emerged as a major trend in the development of the law of war in the mid-nineteenth century and continues to be a major focus of “humanitarian law” advocates.
b. The Lieber Code. Prior to the American Civil War, although treatises existed, there was no written “Law of War.” Only customary law existed regarding the need to distinguish between combatants and civilians.
(1) Dr. Francis Lieber, a law professor at Columbia College in New York at the outset of the American Civil War, advised President Lincoln on law of war matters. In November 1862, Dr. Lieber and four General Officers drafted the Lieber Code. On April 24, 1863, the United States published the Lieber Code as General Orders No. 100, Instructions for the Government of Armies of the United States in the Field.[366] Incorporating customary law and contemporary practices, it was the first official copy of the laws of war published and implemented by a State.
(2) The Lieber Code contained 157 articles and ten sections. The first two sections contain specific language regarding civilians.
(a) Section I, Martial law—Military jurisdiction—Military necessity—Retaliation.
(b) Section II, Public and private property of the enemy—Protection of persons, and especially of women; of religion, the arts and sciences—Punishment of crimes against the inhabitants of hostile countries.
(3) Lieber Code Principles on Treatment of Civilians. The Lieber Code expressly condoned, under military necessity, starvation of civilians; however, it recognized civilian status and that the “unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.”[367] The Lieber Code contained at least eight articles specifically addressing civilians.[368]
c. Civilian Protections in the Modern Jus in Bello. By the early twentieth century, two methodologies for regulating the conduct of war developed under international law.
(1) The Hague Tradition. The Hague Tradition developed a focus on limiting the means and methods used in combat. Named for the series of treaties produced at the 1899 and 1907 Hague Conferences, instruments of the Hague Tradition restrict Parties’ conduct of combat operations. The Hague treaties contain regulations regarding the means and methods of warfare during hostilities (regarding protection of civilian property) and protection of civilians during occupation, as listed below, but general civilian protections are not a focus of the Hague Tradition.
(a) Protections during Hostilities.
(i) No killing or wounding treacherously individuals belonging to the hostile nation (HR, art. 23(b)).[369]
(ii) No seizing or destroying enemy property unless imperatively demanded by military necessity (HR, art. 23(g)).
(iii) No compelling enemy nationals to assist in the war effort against their own nation (HR, art. 23).
(iv) No attacking or bombarding towns, villages, dwellings, or buildings which are undefended (HR, art. 25).
(v) All necessary measures 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 (HR, art. 27).
(vi) No pillaging (HR, art. 28).
(b) Protections of Civilians during Occupation. “Territory is considered occupied when it is actually placed under the authority of the hostile army.” (HR, art. 42)
(i) Occupying power must restore and ensure public order and safety while respecting, unless absolutely prevented, the laws in force in the country. (HR, art. 43)
(ii) No coercing inhabitants of occupied territory to furnish information about the enemy army. (HR, art. 44)
(iii) No forcing inhabitants of occupied territory to swear an oath of allegiance to the hostile Power. (HR, art. 45)
(iv) No disrespecting family honor and rights, the lives of persons, and private property, or religious convictions and practice. (HR, art. 46)
(v) No pillaging. (HR, art. 47)
(2) The Geneva Tradition. The second methodology, the Geneva Tradition, focuses on treatment of war victims in the hands of enemy armed forces. Prior to World War II, the Geneva Conventions of 1864,[370] 1906,[371] and 1929[372] afforded protections to civilians only when they were aiding wounded soldiers.[373] Following World War II, however, the international community signed the Fourth Geneva Convention in 1949 to expressly protect civilians from the effects of armed conflict in the broader circumstances detailed below.
4. Protections Provided in the Fourth Geneva Convention
a. Background. World Wars I and II exposed civilians to increasingly destructive methods of warfare and arbitrary action while in the hands of their nations’ enemies.[374] Consequently, as early as 1921, the ICRC began proposing the ratification of a Convention for the protection of civilians.[375] Only in the aftermath of World War II’s devastating civilian carnage, however, did the international community finally recognize the need for such a Convention and sign GC IV.[376]
b. Organization. GC IV is organized in three Parts. Part I contains the Convention’s General Provisions; Part II provides protections for “the whole of the populations of the countries in conflict;”[377] and Part III – “the main body of the Convention”[378] – provides additional protections for a specific category of civilians defined in Article 4 of the Convention as “protected persons.”
(1) GC IV, Part I - General Provisions. Part I contains, among other Articles, Articles 2 and 3, which determine the Convention’s application. It also contains Article 4, which defines a specific category of civilians – referred to as “protected persons” – which makes this Article “the key to the Convention.”[379] Article 5 authorizes derogations from certain GC IV provisions in specific circumstances, and Article 8 prohibits “protected persons” from renouncing in part or in entirety their GC IV protections.
(a) Articles 2 and 3 (LOAC Triggers). Recall that, as a matter of law, full protection under the Geneva Conventions, including GC IV, exists only in the right type of conflict.[380]
(b) Article 4 (“Protected Persons”). GC IV was intended to protect two main classes of civilians against enemy arbitrary action in war: 1) persons of enemy nationality living in the territory of a belligerent State; and 2) the inhabitants of occupied territories.[381] “Arbitrary action” is when the enemy intentionally harms civilians under their control as opposed to the enemy incidentally harming civilians (e.g., collateral damage).
(i) Who is a “protected person” (GC IV, 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.” “In the hands of” refers to civilians that find themselves under enemy control that is tantamount to governance by the enemy State (e.g., law enforcement). Distinguish this GC IV level of control (i.e., “in the hands of” an enemy force) from Article 75, AP I situations – that apply to the temporary detainment of civilians in their own State of nationality by an enemy force.
(1) This definition can create the mistaken belief that only “protected persons” as defined by GC IV, art. 4 are “protected by the Convention.” However, a civilian may not qualify as a “protected person” as defined in GC IV, art. 4, but still be protected by the Convention if that civilian is part of the “whole population” of one of the countries in conflict, which is covered by GC IV, Part II. This result is confirmed by the third paragraph in GC IV, art. 4, which provides that the GC IV, Part II provisions are “wider in application” than those limited to “protected persons.”[382]
(2) A key teaching point about the definition of “protected person” is that it “remains faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own nationals.”[383]
(ii) Who is not a “protected person” (GC IV, art. 4).
(1) Nationals of a State not bound by the Convention (all States are GC IV parties).
(2) Nationals of a neutral State who are located in the territory of a belligerent State, as long as the neutral State has normal diplomatic representation in the belligerent State. In belligerent territory, the drafters believed that the “position of neutrals is still governed by any treaties concerning the legal status of aliens and their diplomatic representatives can take steps to protect them.”[384]
(3) Nationals of a co-belligerent State (an ally), as long as their State has normal diplomatic representation in the State where they are located “or with the Occupying Power.”[385]
(4) Persons protected by any of the other three GCs.
(iii) Determining whether a civilian qualifies for “protected person” status is important because while all “protected persons” under GC IV also are entitled to the “whole population” protections provided under GC IV, Part II, not all civilians entitled to the “whole population” protections under Part II qualify as “protected persons” entitled to protections under Part III. Accordingly, determining who qualifies and who does not qualify for “protected person” status under GC IV is critical to ensuring compliance with GC IV.[386]
(c) Article 5 (Derogations). GC IV, art. 5 provides for the suspension of certain protections afforded to “protected persons.”
(i) Such derogations are authorized in two specific circumstances:
(1) Protected persons suspected or who have engaged in activities hostile to the security of the State in an enemy State’s territory. In these circumstances, the State may suspend any right or privilege under GC IV that would prove prejudicial to the security of the State.
(2) Protected persons detained as spies, saboteurs, or suspected of activity hostile to an occupying power. In an occupation, the Occupying Power may suspend only rights of communication under GC IV.
(ii) While these provisions appear to subject “protected persons” in the territory of the detaining power to the potential suspension of a far larger number of protections than that relevant to a “protected person” in occupied territory, the GC IV Commentary suggests otherwise: “[T]he Article refers mainly to the relations of the detained person with the outside world, and that is the sphere in which restrictions will doubtless be applied.”[387]
(d) Article 8 (Renunciation Prohibited). In no circumstances may a “protected person” renounce in part or in entirety the rights afforded to them by GC IV.
(2) GC IV, Part II - Protection of the Entire Population. GC IV, art. 13 provides that “the provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the suffering caused by war.” GC IV Part II protections apply to every civilian in countries that are a party to an IAC, regardless of nationality or citizenship.[388] Some illustrative Part II protections follow below.
(a) GC IV, Part II – art. 14. Provides for, but does not mandate, the establishment of “hospital/safety zones” (permanent structures established outside combat area) to shelter from the effects of war the following specific groups of civilians:
(i) Wounded, sick, and aged persons;
(ii) Children under fifteen; and
(iii) Expectant mothers and mothers of children under seven.
(b) GC IV, Part II - art. 15. Provides for, but does not mandate, the establishment of “neutralized zones” (temporary zones in the area of combat) to shelter from the effects of war:
(i) Wounded and sick combatants and non-combatants; and
(ii) Civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.
(c) Additional Protections for the Entire Population. In addition to providing for the establishment of these “protected” zones, Part II also mandates the following protections:
(i) The wounded, sick, infirm, and expectant mothers must be “respected and protected” by all parties to the conflict at all times. (GC IV, art. 16)
(ii) The parties to the conflict shall attempt to conclude agreements for the removal of wounded, sick, infirm, aged persons, and children and maternity cases from besieged areas, and for the passage of ministers of all religions and medical personnel/equipment to such areas. (GC IV, art. 17)
(iii) Civilian hospitals shall be respected and protected and shall not be the object of attack. (GC IV, art. 18)
(iv) Free passage of consignments of medical supplies and objects necessary for religious worship, and essential foodstuffs, clothing, and tonics for children under 15, expectant mothers and maternity cases. (GC IV, art. 23)
(v) Protection and maintenance of children under 15 who are orphaned or separated from their families, including the exercise of their religion and education in all circumstances. (GC IV, art. 24)
(vi) The right to communicate with family via correspondence, and through a neutral intermediary if necessary. (GC IV, art. 25)
(3) GC IV, Part III – Protections for Protected Persons. Individuals who meet the definition of “protected person” are entitled to Part II protections. They are also entitled to additional protections from GC IV, Part III, as described below. That protections afforded by Part III include Part I and Part II protections as well illustrates GC IV protections are cumulative – and this concept is key to understanding how GC IV works.
(a) Part III, Section I – Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories. Unlike the provisions in Part III, Sections II and III, the provisions in Part III, Section I apply to all “protected persons” regardless of whether they are located in the territory of a party to an armed conflict or in an occupied territory. “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 . . .” (GC IV, art. 27) Some illustrative Part III, Section I protections follow below.
(i) Respect for Their Persons. Intended to grant a wide array of rights to protect physical, moral, and intellectual integrities. (GC IV, art. 27; GC Commentary at 201)
(ii) Respect for Honor. Acts such as slander, insults, and humiliation are prohibited. (GC IV, art. 27; GC Commentary at 202)
(iii) Respect for Family Rights. Arbitrary acts which interfere with marital ties, the family dwelling, and family ties are prohibited. This is reinforced by GC IV, art. 82, that requires, in the case of internment, that families be housed together. (GC IV, art. 27; GC Commentary at 202)
(iv) Respect for Religious Convictions. Arbitrary acts which interfere with the observances, services, and rites are prohibited (only acts necessary for maintenance of public order/safety are permitted). (GC IV, art. 27; GC Commentary at 203)
(v) Respect for Manners and Customs. Intended to protect the class of behavior which defines a particular culture. This provision was introduced in response to the attempts by World War II Powers to effect “cultural genocide.” (GC IV, art. 27; GC Commentary at 203)
(vi) No insults and exposure to public curiosity. (GC IV, art. 27)
(vii) No rape, enforced prostitution, and indecent assault on women. (GC IV, art. 27)
(viii) No using physical presence of protected persons to make a place immune from attack. (GC IV, art. 28)
(ix) No physical or moral coercion, particularly to obtain information. (GC IV, art. 31)
(x) No actions causing physical suffering or extermination; including murder, torture, corporal punishment, mutilation, brutality, medical/scientific experimentation, or other brutality. (GC IV, art. 32)
(xi) No collective penalties and similar intimidation or terrorism. (GC IV, art. 33)
(xii) No pillaging (under any circumstances or at any location). (GC IV, art. 33)
(xiii) No reprisals against protected persons and their property. (GC IV, art. 33)
(xiv) No taking of hostages (GC IV, art. 34)
(b) Part III, Section II - Aliens in the Territory of a Party to the Conflict. The provisions in this Section apply only to “protected persons” who are located in the territory of an enemy, belligerent State. They do not apply to “protected persons” located in occupied territory. Many of the rights and privileges granted in this Section, including some listed below, equal those provided to a nation’s civilians. “Alien” is a term of art under GC IV (national of an enemy State) that differs from other meanings used in other legal contexts (e.g., immigration law).
(i) Right to Leave the Territory. (GC IV, art. 35). (Right may be overcome by the national interests (security) of the State.)
(ii) Right to Humane Treatment during Confinement. Protected persons are entitled to humane treatment when confined pending proceedings or subject to a sentence involving loss of liberty for a violation of penal law. (GC IV, art. 37)[389]
(iii) Right to receive relief packages, medical attention, and practice of their religion. (GC IV, art. 38)
(iv) Right to find paid employment, subject to security concerns, and the right to support if security concerns prohibit employment. (GC IV, art. 39)
(v) Limitations on the Type and Nature of Labor.
(1) Can be compelled to work only to the same extent as own nationals. (GC IV, art. 40)
(2) Cannot be compelled to do work that is directly related to the conduct of military operations. (GC IV, art. 40)
(vi) Internment. Protected persons in the territory of a party to an IAC may be interned or placed in assigned residence in accordance with other GC IV provisions if the security of the detaining power makes it absolutely necessary. (GC IV, arts. 41-46), see the commentary to the GC as well.
(c) Part III, Section III - Occupied Territories. The provisions in this Section apply only to “protected persons” who are located in occupied territory. They do not apply to “protected persons” located in the territory of a party to an IAC (i.e., in the territory of the enemy, belligerent State). Some examples follow below.
(i) Repatriation. Protected persons who are not nationals of the occupied territory may leave the territory. (GC IV, art. 48)
(ii) Deportations, Evacuations, and Transfers. (GC IV, art. 49)
(1) Deportations of protected persons out of the occupied territory and forcible individual or mass transfers are prohibited.
(2) If security or military necessity requires it, the Occupying Power may partially or completely evacuate a given area, but not outside of occupied territory unless it cannot be avoided for material reasons.
(3) Occupying Power may not relocate its own population into occupied territory.
(iii) Children. (GC IV, art. 50)
(1) Occupying Power shall facilitate proper working of institutions devoted to care and education of children.
(2) Occupying Power shall take all necessary steps to facilitate identification of children and registration of parentage.
(3) Occupying Power shall arrange for the maintenance and education (if possible, by persons of the same nationality, religion, and language) of children orphaned or separated from their parents.
(4) Occupying Power shall take all necessary steps to identify children whose identity is in doubt.
(5) Occupying Power shall not hinder application of preferential treatment for children younger than age fifteen, expectant mothers, and mothers of children under age seven in terms of food, medical care, and protection against effects of war.
(iv) Property. Destruction 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 when military necessity requires such destruction. (GC IV, art. 53)
(v) Public Officials. Occupying Power may not alter the status of, apply sanctions to, or coerce or discriminate against public officials or judges in occupied territory should they abstain from fulfilling their functions for reasons of conscience. (GC IV, art. 54)
(vi) Food and Medical Supplies. Occupying Power has a duty to ensure the population has food and medical supplies, particularly if resources of occupied territory are inadequate. (GC IV, art. 55)
(vii) Hygiene and Public Health. Occupying Power has a duty to ensure and maintain medical and hospital establishments and services and public health and hygiene in the occupied territory. (GC IV, art. 56)
(viii) Requisition of Hospitals. In cases of urgent necessity for care of military wounded and sick, the Occupying Power may requisition civilian hospitals temporarily provided that Occupying Power arranges for care of civilian patients; however, “the materials and stores of civilian hospitals cannot be requisitioned so long as they are necessary for the needs of the civilian population.” (GC IV, art. 57)
(ix) Spiritual Assistance. Occupying Power shall allow clergy to provide religious and spiritual assistance to their religious communities; Occupying Power shall accept religious articles and books and arrange for their distribution. (GC IV, art. 58)
(x) Relief.
(1) Collective Relief. If all or part of the population of an occupied territory needs supplies, then the Occupying Power shall agree to and facilitate relief schemes through other States or the ICRC; provisions shall consist of food, clothing, and medical supplies; free passage of such consignments must be permitted and protected. (GC IV, art. 59)
(2) Responsibilities of Occupying Power. Relief consignments do not relieve the Occupying Power of its obligations regarding food and medical supplies, hygiene, and public health, nor may the Occupying Power divert such relief consignments from their intended purpose. (GC IV, art. 60)
(3) Relief Consignments.
(a) Distribution. All contracting parties shall make every effort to ensure transit and transport of relief consignments to occupied territories; such consignments shall be exempt from charges, taxes, or customs duties. (GC IV, art. 61; AP I, art. 81)
(b) Individual Relief. Protected persons in occupied territories shall be allowed to receive individual consignments sent to them. (GC IV, art. 62)
(4) Relief Societies. Recognized national Red Cross, Red Crescent, and Red Lion and Sun societies shall be permitted to pursue their activities, as shall other humanitarian organizations; Occupying Power may not require changes to personnel or structure of such societies. (GC IV, art. 63)
(xi) Penal Laws. “[P]enal laws of the occupied territory shall remain in force” unless they constitute a threat to security or an obstacle to application of GC IV; subject to those same considerations, “the tribunals of the occupied territory shall continue to function” with respect to penal offences. (GC IV, art. 64)[390]
(xii) Internment. Protected persons in occupied territory may be interned or placed in assigned residence in accordance with other GC IV provisions if the Occupying Power considers it necessary for “imperative reasons of security.” (GC IV, art. 78), see also the commentary to the GC.
(d) Part III, Section IV - Regulations for the Treatment of Internees. This Section provides the protections required for all “protected persons” who are interned either in the territory of a party to an IAC (in the enemy, belligerent State) or in occupied territory. Internment is the most severe form of non-penal related restraint permitted under GC IV. 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. Even if the Detaining Power finds that neither internment nor assigned residence serves as an adequate measure of control, it may not use any measure of control that is more severe. Some provisions relevant to internment follow below.[391]
(i) Internment is subject to periodic (6 months) review by a competent body. (GC IV, art. 79, referencing arts. 43 and 78)
(ii) Internees shall be grouped as families whenever possible. (GC IV, art. 82)
(iii) Separate from POWs and Criminals. Internees “shall be accommodated separately from prisoners of war and persons deprived of liberty for any other reason.” (GC IV, art. 84)
(iv) Proper housing. (GC IV, art. 85)
(v) Premises suitable for holding religious services, of whatever denomination. (GC IV, art. 86)
(vi) Sufficient food and water. (GC IV, art. 89; and clothing per art.90)
(vii) Adequate infirmary with qualified doctor. (GC IV, art. 91)
(viii) Complete religious freedom. (GC IV, art. 93)
(ix) Right to control property and money. (GC IV, art. 97)
(x) Must post convention in native language, humanitarian discipline, right to petition for redress of grievances and elect internee committee. (GC IV, arts. 99-102)
(xi) Right to notify the Power to which they owe allegiance, Protecting Power, and family of location and send and receive letters. (GC IV, arts. 105-107)
(xii) Penal laws in place continue to apply to internees (subject to operational imperatives); internees cannot be sent to penitentiaries for disciplinary violations. (GC IV, art. 117)[392]; see arts. 118-126 for additional penal and disciplinary provisions)
(xiii) Transfers must be done safely, and notice must be given to internee’s family. (GC IV, art. 128)
(xiv) Interning power must ensure issuance of death certificates; must conduct an inquiry if death of internee is caused by sentry or other internee. (GC IV, arts. 129-131)
(xv) Each internee shall be released “as soon as the reasons which necessitated his internment no longer exist.” GC IV, art. 132. Internment shall cease as soon as possible after the close of hostilities. (GC IV, art. 133)
d. Civilian Protections under The Additional Protocols and Customary International Law
(1) Additional Protocol I (IAC).
(a) AP I. Part IV of AP I covers the civilian population in IACs. It is further subdivided into three Sections.
(i) Section I (Arts. 48-67) provides general protections against the effects of IACs, and specifically supplements, among other rules, the “whole population” protections afforded by GC IV, Part II described above. The U.S. supports many of these articles as a matter of policy or as CIL, but it objects to several specific articles.[393]
(ii) Section II (Arts. 68-71) covers relief actions for civilians primarily located in occupied territory.
(iii) Section III (Arts. 72-79) governs the treatment of persons in the power of a party to an IAC, supplementing, among other rules, GC IV, Parts I and III.
(b) AP I civilian protections provisions may be regarded as CIL.
(i) U.S. Views.
(1) In 1986, the authors of the AP I CIL Memo viewed “as already part of customary international law” the following AP I Articles relevant to civilian protections: 51(2), 52(1), 52(2) (except for the reference to “reprisals”), 57(1), 57(2)(c), 57(4), 59, 60, 73, 75, 76(1), and 77(1).[394] They also opined that AP I, Articles 74, 76(2), 76(3), 77(2) – 77(4), 78 (“subject to the right of asylum and compliance with the [UN] Protocol on Refugees”), and 79 were “supportable for inclusion in customary law through state practice.”[395]
(2) In his 1987 remarks, Mr. Matheson commented on U.S. support for certain principles espoused in various Articles of AP I, including several relevant to civilian protections.[396]
(3) On March 7, 2011, in a Fact Sheet on American policy for the detention facility at Guantánamo Bay, the U.S. President declared that the “U.S. Government will…choose out of a sense of legal obligation to treat the principles set forth in [AP I,] Article 75 as applicable to any individual it detains in an [IAC], and expects all other nations to adhere to these principles as well.”[397]
(4) The DoD Law of War Manual discusses the DoD view of AP I and what provisions are consistent with U.S. practice, supported by the U.S., and objected to by the U.S.[398]
(ii) Other References. The ICRC CIL Database references many provisions of AP I, including those relevant to civilian protections, as customary international law applicable in IACs.[399] It also cites other sources as justification for the CIL status of “rules” applicable in IACs.[400]
(2) Additional Protocol II (NIAC).
(a) AP II. AP II “develops and supplements Common Article 3 of the Geneva Conventions of 12 August 1949.”[401]
(i) Articles 4-6 of AP II contain provisions governing humane treatment in NIACs. Article 4 contains a list of “fundamental guarantees” for “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities….” Article 5 provides protections for persons interned or detained for reasons related to the NIAC. And Article 6 mandates basic procedural guarantees in prosecutions of criminal offenses related to the NIAC.
(ii) Articles 13-18 of AP II specifically cover civilian populations in NIACs.
- Civilians and the civilian population shall be protected from the dangers arising from military operations and shall not be targeted. (AP II, art. 13)
- Starvation of civilian populations is prohibited and objects that are “indispensable to the survival of the civilian population” are protected from attack. (AP II, art. 14)
- Works or installations that contain dangerous forces, such as dams, nuclear plants, etc., are protected from attack even when they are lawful military objectives, if their destruction would cause the release of dangerous forces and severe losses to the civilian population. (AP II, art. 15) The U.S. does not view this as CIL, but it did not recommend a reservation to this article in the context of NIAC.[402]
- Protection of cultural objects and places of worship. (AP II, art. 16)
- The forced movement of civilians is prohibited. (AP II, art. 17)
- Relief actions. (AP II, art. 18)
(b) AP II civilian protections provisions may be regarded as CIL.
(i) U.S. Views.
(1) In 1987, the Reagan Administration submitted AP II to the Senate for its advice and consent to ratification, subject to certain reservations and understandings.[403] Reagan’s Secretary of State, George Shultz, concluded at that time that “the obligations contained in [AP 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.”[404] Secretary of State Shultz also wrote at that time, however, that AP II’s provisions “are not uniformly observed by other States.”[405]
(2) To date, the Senate has not provided its advice and consent to ratification of AP II but the Obama Administration has recognized that “[U.S.] military practice is already consistent with the Protocol’s provisions” and has urged the Senate to consent to ratification of AP II.[406]
(ii) Other References. The ICRC CIL Database references many provisions of AP II, including those relevant to civilian protections, as reflective of customary international law applicable in NIACs.[407] It also cites other sources as justification for the CIL status of “rules”
GC I Commentary, supra note 26 at 142 (“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.”).
GC I Commentary, supra note 26 at 151 (“[T]here are times when military operations will make the obligation to search for the fallen impracticable. . .. 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.).
GC I Commentary, supra note 26 at 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