Chapter 3

The Law of Armed Conflict

I.  INTRODUCTION.  This Chapter summarizes key Law of Armed Conflict (LOAC) provisions for commanders and military personnel in the conduct of operations in both international and non-international armed conflicts.  It discusses the purposes and basic principles of the LOAC, its application in armed conflict, the legal sources of the law, the conduct of hostilities, treatment of protected persons, military occupation of enemy territory, neutrality, and compliance and enforcement measures.

II.  DEFINITION.  The law of war (LOW) is “that part of international law that regulates the resort to armed force; the conduct of hostilities and the protection of war victims in both international and non-international armed conflict; belligerent occupation; and the relationships between belligerent, neutral, and non-belligerent States.”^[1]  It is often termed the law of armed conflict (LOAC) and sometimes called international humanitarian law (IHL) or jus in bello.  The LOAC “comprises treaties and customary international law applicable to the United States.”^[2]  This chapter will use the term LOAC to refer to the LOW or IHL.

III.  POLICY.  Department of Defense (DoD) policy is to comply with the LOAC “during all armed conflicts, however characterized.”^[3] Every Soldier, Sailor, Airman, Marine, and all others accompanying U.S. forces must comply with the LOAC, particularly its basic principles explained below and its requirements for humane treatment of detainees.  The nature and extent of LOAC obligations may differ, however, depending on the laws applicable to the type of armed conflict.

Iv.  PURPOSES OF THE LAW OF ARMED CONFLICT

A.   The fundamental purposes of the LOAC are humanitarian and functional in nature.  The humanitarian purposes include:

1.    Protecting both combatants and noncombatants from unnecessary suffering;

2.    Safeguarding persons who fall into the hands of the enemy; and

3.    Facilitating the restoration of peace.

B.    The functional purposes include:

1.    Ensuring good order and discipline;

2.    Fighting in a disciplined manner consistent with national values; and

3.    Maintaining domestic and international public support.

V.  basic principles of the law of ARMED CONFLICT

A.   Principle of Military Necessity.  This principle “justifies certain actions necessary to defeat the enemy as quickly and efficiently as possible that are not prohibited by LOAC.”^[4] Article 23(g) of the Hague Regulations (HR) explicitly recognizes military necessity as valid.  It mandates that a belligerent not “destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”  Numerous other provisions in the LOAC also acknowledge this principle explicitly or implicitly.

1.    Military necessity does not authorize acts otherwise prohibited by the LOAC.  The principle of military necessity must be applied in conjunction with other LOAC principles discussed in this chapter as well as other, more specific, legal constraints set forth in LOAC treaties to which the United States is a party.

2.    Military necessity is not a criminal defense for acts expressly prohibited by law.

a.    The LOAC prohibits making the civilian population and other protected persons (such as military medical and religious personnel,^[5] persons placed hors de combat,^[6] and civilians^[7]) the object of attack.

b.    Civilian objects are generally protected from intentional attack or destruction.  However, civilian objects may lose their protections if they are being used for military purposes or if there is a military necessity for their destruction or seizure.  Civilian objects may, in such circumstances, become military objectives (as discussed below), and if so, the LOAC permits their destruction.^[8]  For example, General Lothar Rendulic was the senior German Commander in Norway in late 1944.  Fearing a Russian invasion against German-occupied Norway, he adopted a “scorched-earth” policy, destroying anything that could be used by the Russians.  The Nuremberg Tribunal convicted General Rendulic of other charges, but found him not guilty of unlawfully destroying civilian property by his “scorched earth” tactics to thwart an enemy invasion that never came.^[9]  Though the Tribunal expressed doubt as to his judgment, it held that HR, Article 23(g) justified his actions, as “the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made.”^[10]

c.    The “Rendulic Rule:” The Rendulic case also stands for a broader standard regarding liability for battlefield acts: commanders and personnel should be evaluated based on information reasonably available at the time of decision.  In recently ratifying several LOAC treaties, the U.S. Senate attached understandings that “any decision by any military commander, military personnel, or any other person responsible for planning, authorizing, or executing military action shall only be judged on the basis of that person's assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”^[11]

d.    Judge advocates must consider the law of war when advising commanders about military justice or adverse administrative actions arising out of combat operations.  Judge advocates should consult OTJAG’s Administrative Investigations & Criminal Law Supplement on Targeting and the Law of War before advising commanders in this area.^[12]

e.    There may be situations where, because of incomplete intelligence or the failure of the enemy to abide by the LOAC, civilian casualties occur.  Example:  The Iraqi Al Firdos C3 Bunker.  During the first Persian Gulf War (1991), U.S. military planners identified this Baghdad bunker as an Iraqi military command and control center. Barbed wire surrounded the complex, it was camouflaged, armed sentries guarded its entrance and exit points, and electronic intelligence identified its activation.  Unknown to coalition planners, some Iraqi civilians used upper levels of the facility as nighttime sleeping quarters.  The bunker was bombed, resulting in over 400 civilian deaths.  Was there a violation of the LOAC?  Not by U.S. forces, but there was a clear violation of the principle of distinction (discussed infra) by Iraqi forces.  Based upon information gathered by Coalition planners, the commander made an assessment that the target was a military objective.  Although the attack may have resulted in unfortunate civilian deaths, there was no LOAC violation because the attackers acted in good faith based upon the information reasonably available at the time the decision to attack was made.

B.    Principle of Distinction.  Sometimes referred to as the principle of discrimination, this principle requires that belligerents distinguish combatants from civilians and military objectives from civilian objects (i.e., protected property or places).  In keeping with this “grandfather” principle of the LOAC, parties to a conflict must direct their operations only against combatants and military objectives.^[13]

1.    Additional Protocol I (AP I) prohibits “indiscriminate attacks.” As examples, under Article 51 thereof, paragraph 4, these are attacks that:

a.    are “not directed against a specific military objective,” (e.g., Iraqi SCUD missile attacks on Israeli and Saudi cities during the Persian Gulf War); or

b.    “employ a method or means of combat the effects of which cannot be directed at a specified military objective,” (e.g., this might prohibit area bombing in certain populous areas, such as a bombardment “which treats as a single military objective a number of clearly separated and distinct military objectives in a city, town, or village . . .” ^[14]); or

c.    “employ a method or means of combat the effects of which cannot be limited as required” by the Protocol (e.g., release of dangerous forces^[15] or collateral damage excessive in relation to concrete and direct military advantage^[16]); and

d.    “consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”^[17]

2.    AP I defines military objectives as “objects which by their nature, location, purpose or use, make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”^[18]  See discussion of Military Objectives infra.

3.    Distinction applies both offensively and defensively.  Offensively, it requires parties to a conflict to direct military force only against combatants and military objectives.  Defensively, the principle of distinction requires parties to a conflict “(1) take certain measures to help ensure that military forces and civilians can be visually distinguished from one another; (2) physically separate, as feasible, their military objectives from the civilian population and other protected persons and objects; and (3) refrain from the misuse of protected persons and objects to shield military objectives.”^[19]

4.    Precautions in the Attack.  “Combatants must take feasible precautions in conducting attacks to reduce the risk of harm to civilians and other protected persons and objects.”^[20]  Feasible precautions may include adjusting the timing of the attack or selecting certain weapons.  In some situations, warnings may be required.  See discussion of the Warning Requirement infra.

C.    Principle of Proportionality.  The principle of proportionality requires commanders to refrain from attacks in which the expected harm incidental to such attacks would be excessive in relation to the concrete and direct military advantage anticipated to be gained.  The principle of proportionality also requires commanders to take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack. ^[21]

1.    Collateral Damage.  Collateral damage, also called incidental damage, consists of both unavoidable and unintentional damage to civilian personnel and property incurred while attacking a military objective.  Incidental damage is not a violation of international law.  While no LOAC treaty defines this concept, its inherent lawfulness is implicit in treaties referencing the concept.  For example, AP I, Article 51(5) describes indiscriminate attacks as those causing “incidental loss . . . excessive . . . to . . . the military advantage anticipated.”^[22]

2.    Attacks and Military Advantage.  The term “attack” is defined in Article 49 of AP I as “acts of violence against the adversary, whether in offence or defence [sic].”^[23]  “Military advantage” is not restricted to tactical gains, but is linked to the full context of one’s war strategy.  Balancing between incidental damage to civilian objects and incidental civilian casualties may be done on a target-by-target basis, but also may be done in an overall sense against campaign objectives.^[24]  At the time of its ratification of AP I, the United Kingdom declared that “the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.”[25]  Proportionality balancing typically involves a variety of considerations, including the security of the attacking force.^[26]

D.   Principle of Unnecessary Suffering.  Sometimes referred to as the principle of superfluous injury or humanity, this principle requires military forces to avoid inflicting gratuitous violence on the enemy.  It arose originally from humanitarian concerns over the sufferings of wounded soldiers and was codified as a weapons limitation: “It is especially forbidden . . . to employ arms, projectiles or material calculated to cause unnecessary suffering.”^[27]  More broadly, this principle also encompasses the humanitarian spirit behind the Geneva Conventions to limit the effects of war on the civilian population and property and serves as a counterbalance to the principle of military necessity.

1.    Today, this principle underlies three requirements to ensure the legality of weapons and ammunitions themselves, as well as the methods by which such weapons and ammunition are employed.  Military personnel may not use arms that civilized societies recognize as per se causing unnecessary suffering (e.g., projectiles filled with glass, lances with barbed heads, etc.), must scrupulously observe treaty limitations on weapons use (e.g., CCW Protocol III’s prohibition on use of certain incendiary munitions  near concentrations of civilians), and must not use otherwise lawful weapons in a manner calculated to cause unnecessary suffering (i.e., with deliberate intent to inflict superfluous or gratuitous injury to the enemy).

2.    The prohibition of unnecessary suffering constitutes acknowledgement that necessary suffering to combatants is lawful in armed conflict, and may include severe injury or loss of life justified by military necessity.  There is no agreed definition for unnecessary suffering.  A weapon or munition would be deemed to cause unnecessary suffering only if it inevitably or in its normal use has a particular effect, and the injury caused thereby is considered by governments as disproportionate to the military necessity for that effect, that is, the military advantage to be gained from use.  This balancing test cannot be conducted in isolation.  A weapons or munition’s effects must be weighed in light of comparable, lawful weapons or munitions in use on the modern battlefield. ^[28]

3.    A weapon cannot be declared unlawful merely because it may cause severe suffering or injury.  The appropriate determination is whether a weapons or munition’s employment for its normal or expected use would be prohibited under some or all circumstances.  The correct criterion is whether the employment of a weapon for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to the military advantage realized as a result of the weapon’s use.  A State is not required to foresee or anticipate all possible uses or misuses of a weapon, for almost any weapon could be used in ways that might be prohibited.

4.    In practice, DoD service TJAGs oversee legal reviews of weapons during the procurement process.  JAs should read these legal reviews prior to deployment for all weapons in their unit’s inventory, watch for unauthorized modifications or deliberate misuse, and coordinate with higher headquarters legal counsel if it appears that a weapon’s normal use or effect appears to violate this principle.  See also the discussion of the DoD Weapons Review Program, infra.

E.    Principle of Chivalry.  Though not always identified as one of the LOAC’s basic legal principles, the concept of chivalry has long been present in the law of armed conflict.^[29]  Based on notions of honor, trust, good faith, justice, and professionalism, chivalry prohibits armed forces from abusing the law of armed conflict in order to gain an advantage over their adversaries.  Chivalry, therefore, demands a degree of fairness in offense and defense and requires mutual respect and trust between opposing forces.  It denounces and forbids resort to dishonorable means, expedients, or conduct that would constitute a breach of trust.^[30]  Chivalry is not based on reciprocity, it must be applied at all times regardless of enemy forces’ action.

1.    The concept of chivalry, as well as distinction, informs the LOAC’s express prohibition of treachery and perfidy, defined as “bad faith.”  AP I, Article 37, states, “[i]t is prohibited to kill, injure or capture an adversary by resort to perfidy.  Acts inviting the confidence of an adversary to lead him to believe he is entitled to, or is obligated to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.”  The United States considers it unlawful to kill or wound by resort to perfidy.  However, it is not unlawful to capture by resort to perfidy.^[31]  Examples of perfidy include feigning surrender in order to draw the enemy closer, and then firing on the enemy at close range, feigning wounded status, and feigning noncombatant or neutral status.  Perfidy, therefore, involves injuring the enemy through the enemy’s adherence to the LOAC.  Perfidious behavior degrades the protections and mutual restraints developed in the interest of all Parties, combatants, and civilians.

2.    Chivalry does not forbid ruses or deception, which are “admitted as a just and necessary means of hostility, consistent with honorable warfare.”^[32]  See discussion of Ruses and Deception, infra.

VI.  APPLICATION OF THE LAW OF ARMED CONFLICT

A.   The LOAC applies to all cases of declared war or any other armed conflicts that arise between the United States and other nations, even if the state of war is not recognized by one of them.  This threshold is codified in Common Article 2 of the Geneva Conventions.  Armed conflicts such as the 1982 Falklands War, the Iran-Iraq War of the 1980s, and the first (1991) and second (2003) U.S.-led coalition wars against Iraq were international armed conflicts (IACs) to which the full body of LOAC applied.  AP I purported to expand the notion of IAC and application of the full Geneva Conventions to certain wars of “national liberation” for its State parties.^[33]  Though the United States has signed (but not ratified) and accepts several articles of AP I, it has persistently objected to this article.  To date, no armed group has successfully invoked this expansion.

B.    The LOAC also applies to armed conflicts between one or more States and organized armed groups.  Common Article 3 of the Geneva Conventions and AP II (signed and largely supported, but not yet ratified by the United States) enumerate specific protections for these non-international armed conflicts (NIACs).[34]  State responses to guerrilla warfare, internal rebellions, and transnational terrorist operations could all qualify as NIACs. ^[35]  However, nations experiencing such conflicts (even with significant military response and numerous casualties) rarely formally acknowledge that a NIAC exists.  Nevertheless, the legal concept of NIAC remains significant.

C.    Not all conflicts between a State and armed actors constitute armed conflicts.  For example, Article 1(2) of AP II excludes “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”  JAs should look primarily to other sources of law for guidance in such circumstances, such as domestic law, but may also be called upon to help commands develop policies that embody the spirit of the LOAC and accompanying principles when confronting escalating violence or threats.

D.   In peace operations, like those in Somalia, Haiti, and Bosnia, questions regarding the applicability of the LOAC frequently arise.  The United States, United Nations, and NATO have long required that their forces apply the LOAC in these operations, ^[36] but particular treaties often do not specifically mention peace operations and categorization of a conflict as an IAC or NIAC may be uncertain.  When facing situations that appear to fall short of the traditional threshold of armed conflict that would trigger the LOAC, Judge Advocates (JA) should consult with attorneys within more senior commands to determine how best to comply with the LOAC and U.S. customary practice.

E.    In summary, where the LOAC expressly applies, JAs must advise commanders and U.S. forces to follow its requirements exactly.  Even where not directly applicable, U.S. practice has been to comply with the LOAC to the extent “practicable and feasible.”^[37]  In military operations short of international armed conflict, LOAC treaties provide an invaluable template for military conduct.  The Soldier’s Rules^[38] also provide useful standards for the individual Soldier in the conduct of operations across the conflict spectrum.  The military commander, with the JA’s assistance and advice, must determine those provisions of the LOAC that best fit the mission and situations not covered by formal rules, and train forces accordingly.

VII.  SOURCES OF THE LAW OF ARMED CONFLICT.

A.   The Law of The Hague.^[39]  “Hague Law,” which is typically associated with targeting, regulates the “means and methods” of warfare, including:  prohibitions against using certain weapons such as poison; humanitarian concerns such as warning the civilian population before a bombardment; and the law of belligerent occupation (particularly with respect to property.)  The rules relating to the means and methods of warfare are primarily derived from articles 22 through 41 of the 1907 Regulations Respecting the Laws and Customs of War on Land annexed to Hague IV; hence the term “Hague Regulations.”^[40]

B.    Geneva Conventions of 1949.^[41]  As opposed to the “means and methods” approach of Hague Law, the term “Geneva Law” generally refers to a regulatory approach which seeks to protect “victims” of war such as wounded and sick, shipwrecked at sea, prisoners of war, and civilians.  Geneva law seeks to ensure humane treatment of the “victims” it aims to “respect and protect.”

C.    1977 Additional Protocols to the Geneva Conventions.^[42] AP I illustrates the convergence of “Hague Law” and “Geneva Law” by updating and including both traditions in one document.  Although the United States has not ratified either AP I or AP II, many nations have.  U.S. commanders must be informed that AP I and AP II bind numerous allied forces, including all members of NATO except Turkey.  The United States also believes some provisions of AP I and II to be CIL, and follows others as a matter of policy.^[43]  Documents outlining the specific provisions of AP I which the US regards as CIL can be found in pages 249 to 253 of the Documentary Supplement.  This difference in obligation has not proven to be a major obstacle to U.S. allied or multinational operations.  In 2007, the United States ratified AP III to the Geneva Conventions, which recognizes the Red Crystal as a symbol equal to the Red Cross and Red Crescent.

D.   Other U.S. Sources.  Numerous weapons treaties, such as the CCW and its Protocols, prohibit or regulate weapons use.  Many of these are discussed below and reprinted in the LOAC Documentary Supplement.  Implementing LOAC guidance for U.S. armed forces is found in DoD, joint, and service regulations, policies, manuals, and doctrine.^[44]

VIII.  PERSONS NOT SUBJECT TO ATTACK UNDER THE LOAC

A.   General Rules.  The LOAC permits intentional attacks against combatants, but not civilians or noncombatants.  As such, the civilian population is protected from direct attack.  An individual civilian is protected from direct attack unless he or she takes a direct part in hostilities (DPH).^[45]  The phrase “protected persons” is a narrower legal term of art specific to GC IV, as discussed below.  The term noncombatant appears in GC IV, Article 15 but is not precisely defined in the LOAC.  It can refer to various categories of military personnel protected from attack, such as military medical personnel and chaplains, plus those out of combat like prisoners of war and the wounded, sick, and shipwrecked, as well as to civilians.

B.    Protections for the Wounded and Sick in the Field and at Sea.  GC I and II provide protections for military wounded, sick, and shipwrecked at sea.  This section provides a brief summary of these protections.

1.    Hors de Combat.  A person is hors de combat 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 incapacitated by wounds, sickness, or shipwreck.^[46]  It is prohibited to attack enemy personnel who are hors de combat.^[47]

2.    Members of the armed forces who are wounded or sick^[48] and who cease to fight are to be respected and protected, as are shipwrecked members of the armed forces at sea.^[49] 

3.    Medical units and establishments may not be attacked intentionally.^[50]  However, incidental damage to medical facilities situated near military objectives is not a violation of the LOAC.  Medical units lose their protection if committing “acts harmful to the enemy,^[51]” and, if after a reasonable time, they fail to heed a warning to desist.^[52] 

4.    Medical personnel “exclusively engaged” in medical duties,^[53] chaplains,^[54] personnel of national Red Cross Societies, and other recognized relief organizations,^[55] are considered noncombatants and shall not be intentionally attacked.  To enjoy immunity, these noncombatants must abstain from any form of participation—even indirect—in hostile acts.^[56]  Medical personnel may not employ arms against enemy forces acting in conformity with the LOAC and may not use force to prevent the capture of their unit by the enemy.

D.   Protections for Civilians.   LOAC provides extensive protections for civilians.  This section briefly summarizes several of those protections.

1.    General Rule.  The civilian population, individual civilians, and civilian property are protected as a matter of their status, and may not be made the object of direct (intentional) attack.^[57]  While the term “civilian” is used in different ways in the law of war, ^[58] 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.”^[59]

2.    Specific Protections.

a.    Civilian Medical and Religious Personnel.  Such personnel shall be respected and protected.^[60] 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.

b.    Journalists.  Protected as “civilians” provided they take no action inconsistent with their status.^[61]  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.^[62]

c.    Personnel Engaged in the Protection of Cultural Property.^[63]  Article 17 of the 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.^[64]

d.    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).^[65]  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.

3.    Exception to General Rule: Direct Participation in Hostilities.^[66]  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 below.

IX.  PERSONS SUBJECT TO ATTACK UNDER THE LOAC

A.  General Rules. Combatants are lawful targets unless hors de combat, that is, out of combat status—captured, wounded, sick or shipwrecked and no longer engaged in hostilities.  Lawful combatants also are privileged belligerents, i.e., authorized to use force against the enemy.  On the other hand, unprivileged belligerents are persons who, by engaging in hostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g., being made the object of attack and subject to detention), but who are not entitled to any of the distinct privileges of combatant status (e.g., combatant immunity and POW status).^[67]

B.  Lawful Combatants.

1.    Lawful combatants include:

a.    The regular armed forces of a State Party to the conflict;

b.    Militia, volunteer corps, and organized resistance movements belonging to a State Party to the conflict that are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government not recognized by a detaining authority or occupying power; and

c.    Participants in the levée en masse.^[68]  A levée en masse is a spontaneous uprising of the inhabitants of non-occupied territory who, on the approach of the enemy in an international armed conflict, take up arms to resist the invading forces, without having time to form themselves into regular armed units.^[69]

2.    Lawful Combatants as defined in the LOAC:

a.    Are entitled to carry out attacks on enemy military personnel and equipment;

b.    May be the subject of lawful attack by enemy military personnel;

c.    Have a combatant’s privilege, i.e., they bear no criminal responsibility for killing or injuring enemy military personnel or civilians taking an active part in hostilities, or for causing damage or destruction to property, provided their acts comply with the LOAC;

d.    May be tried for breaches of the LOAC;

e.    May only be punished for breaches of the LOAC as a result of a fair and regular trial (similar to procedure for capturing nation’s soldiers); and

f.     If captured, must be treated humanely and are entitled to prisoner of war (POW) status.

C.    Members of Non-State Armed Groups.

1.    Like members of an enemy State’s armed forces, individuals who are formally or functionally part of a non-State armed group that is engaged in hostilities may be made the object of attack because they likewise share in their group’s hostile intent.^[70]  Judge advocates should look to their ROE to determine which groups may be attacked.

2.    Determining membership in the non-State armed group.  Formal or functional criteria may be used to determine whether an individual is a member of a non-State armed group.  A person may not be made the object of attack based on his or her association with a non-State armed group if that association has clearly been severed.^[71]  In other words, once a person has quit the group, they may no longer be attacked based on membership (though they may be attacked if another valid basis exists).

a.    Formal Membership.  Formal membership may exist where a person has a rank/title, has taken an oath of loyalty to the group, wears a uniform or other identifying clothing, or where a person has membership documents.^[72]  Other factors exist—for details consult para. 5.7.3.1 of the DoD Law of War Manual.

b.    Functional Membership.  Functional membership may exist where a person is integrated into the group such that the group’s hostile intent may be imputed to him or her, even if not formally a member of the group. This usually occurs with groups that are not organized in a formal command structure.  Persons who are merely sympathetic to the group’s goals are not functional members.  Consult para. 5.7.3.2 of the DoD Law of War Manual for details.  Criteria to determine functional membership include whether a person:

(1) follows directions issued by the group or its leaders;

(2) takes a direct part in hostilities on behalf of the group on a sufficiently frequent or intensive basis; or

(3) performs tasks on behalf of the group similar to those provided in a combat, combat support, or combat service support role in the armed forces of a State.^[73]

D.  Civilians Directly Participating in Hostilities.

1.    Civilians who take a direct part in hostilities forfeit protection from being made the object of attack.^[74]

a.    The meaning and limit of the concept of DPH remains hotly contested.^[75]  Many commentators agree that during their commission, some acts meet the definition of DPH and justify a response by deadly force (e.g., personally engaging in potentially lethal acts like firing small arms at Soldiers).  Likewise, many agree that extremely remote or indirect acts do not constitute DPH (e.g., contractor factory workers distant from the battlefield, general public support for a nation’s war effort).   

b.    More difficult cases arise as conduct becomes less connected to actual hostilities, remote in location, or attenuated in time.  In various theaters of war, the United States has faced determined enemies who are not members of nation state forces, but rather transnational organized armed groups in constantly shifting alliances, sometimes in locations where governments are unable or unwilling to respond.  These foes deliberately and illegally use the civilian population and civilian objects to conduct or conceal their attacks as a strategy of war.  Further complicating the issue, U.S. and other forces increasingly utilize civilian or contractor support in battlefield or targeting roles and rely on sophisticated technology and intelligence to plan and conduct attacks.

c.    According to AP I, civilians enjoy protection from direct attack “unless and for such time as they take a direct part in hostilities.”[76]  The U.S. supports the principle underlying this definition, but does not support the AP I definition as reflective of CIL.[77]  The DPH definition in AP I, art. 51(3), may suggest that civilians lose protection only when actually engage in hostilities, but that reading does not reflect the U.S. position on duration of liability for attack against those DPH.  The U.S. position is that individuals who DPH remain subject to attack until they have permanently ceased their participation.^[78] 

d.    The International Committee of the Red Cross (ICRC) proposed a narrow reading of DPH requiring a (1) threshold showing or likelihood of harm, (2) a direct causal link between the act in question and that harm, and (3) a belligerent nexus to the conflict as shown by specific intent to help or harm one or more sides.  This proposal and others remain debated by nations, warfighters, and scholars alike.^[79] The United States has not adopted the complex ICRC position, nor its vocabulary.[80]  Instead, the United States relies on a case-by-case approach to both organized armed groups and individuals. 

e.    The United States approach begins by recognizing that members of hostile, non-state armed groups are combatants who may be targeted based on their formal or functional membership in the armed group.^[81]  In such cases, U.S. forces need not conduct a DPH analysis, as group membership provides the proper basis for attack (see discussion above).

               f.    For individuals not part of a hostile, non-state armed group, U.S. forces use a case-by-case^[82] DPH analysis based on the factors listed in Paragraph 5.8.3 of the DoD Law of War Manual.  After considering the relevant LOAC factors and the information available at the time, appropriate authorities may, if authorized under the current theater ROE, either engage such personnel or declare them hostile (see the Rules of Engagement chapter for further details).  These designations and processes normally remain classified due to the sensitive nature of intelligence sources and technology, the need for operational security in military planning, and classic principles of war such as retaining the element of surprise.  JAs should gather the facts and closely consult all available guidance, particularly the Rules of Engagement and theater-specific directives or references, as well as host nation laws and sensitivities.

E.  Leaders.^[83]

1.    Military leaders are subject to attack on the same basis as other members of the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on the same basis as other members of the group. There is no objection to making a specific enemy leader who is a combatant the object of attack.

2.    Leaders who are not members of an armed force or armed group (including heads of State, civilian officials, and political leaders) may be made the object of attack if their responsibilities include the operational command or control of the armed forces. For example, as the commander-in-chief of the U.S. armed forces, the President would be a legitimate target in wartime, as would, for example, the Prime Minister of a constitutional monarchy. In contrast, the reigning monarch of a constitutional monarchy with an essentially ceremonial role in State affairs may not be made the object of attack.

3.    In addition to leaders who have a role in the operational chain of command, leaders taking a direct part in hostilities may also be made the object of attack.  Planning or authorizing a combat operation is an example of taking a direct part in hostilities.  As a matter of practice, attacks on the national leadership of an enemy State have often been avoided based on comity and to help ensure that authorities exist with whom peace agreements may be concluded.

x.  MILITARY OBJECTIVES AND PROTECTED PLACES

A.   Military Objectives.  Military objectives are “any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”^[84]

1.    Determining Military Objectives.  Military equipment, bases, and certain objects containing military objectives are always military objectives.^[85]  Other objects not expressly military become military objectives when they satisfy both elements of the above two-part test.

a.    This test, derived from AP I,^[86] sets forth criteria establishing when military necessity may exist to consider an object a lawful target that may be seized or attacked.^[87]  First, the target must by virtue of its nature, location, purpose, or use make an effective contribution to military action.  Second, the total or partial destruction, capture, or neutralization of the target must, under the circumstances ruling at the time, offer a definite military advantage.  The United States subscribes to this definition, as evidenced by its ratification of several CCW Protocols with identical definitions and incorporation into FM 6-27.

b.    Compared to “military objective,” the term “military target” is more limited and redundant, and should not be used.  In contrast, the term “civilian target” is an oxymoron, inasmuch as a civilian object is an object that is not a military objective, and therefore is immune from intentional attack unless and until it loses its protected status.  Consequently, the term “civilian target” is inappropriate and should not be used.  If military necessity exists (and the above two-part test can be satisfied) for the seizure or destruction of a civilian object, then that object has become a military objective and ceased to be a civilian object.  Converted objects may regain their civilian status if military use ceases.

2.    Applying the test for Military Objectives.  The AP I military objective definition/test, which FM 6-27 and several weapons treaties^[88] ratified by the United States also adopt, contains two main elements:  (1) the nature, location, purpose or use makes an effective contribution to military action, and (2) total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.  If the objective is not enemy military forces and equipment, the second part of the test limits the ability to attack the objective.  Both parts must apply before an object that is normally a civilian object can be considered a military objective.  Recall also that attacks on military objectives which may cause incidental damage to civilians or civilian objects must comply with the principle of proportionality.

a.    Nature, location, purpose or use as making an effective contribution to military action:^[89]

(1)  Nature refers to the type of object.  Examples of enemy military objectives which by their nature make an effective contribution to military action include: tanks and other armored fighting vehicles, weapons, fortifications, combat aircraft and helicopters, supply depots of ammunition and petroleum, military transports, command and control centers, communication stations, etc.

(2)  Location includes areas that are militarily important because they must be captured or denied an enemy, or because the enemy must be made to retreat from them.  Examples of enemy military objectives which by their location make an effective contribution to military action include:  a narrow mountain pass through which the enemy formation must pass, a bridge over which the enemy’s main supply route (MSR) crosses, a key road intersection through which the enemy’s reserve will pass, etc.

 (3) Purpose means the future intended or possible use.  Examples of enemy military objectives which by their purpose make an effective contribution to military action include:  civilian buses or trucks which are being transported to the front to move soldiers from point A to B, a factory which is producing ball bearings for the military, the Autobahn in Germany, etc.  While the criterion of purpose is concerned with the intended, suspected, or possible future use of an object, the potential military use of a civilian object, such as a civilian airport, may make it a military objective because of its future intended or potential military use.

(4)  Use refers to how an object is presently being used.  Examples of enemy military objectives which by their use make an effective contribution to military action include:  an enemy headquarters located in a school, an enemy supply dump located in a residence, or a hotel which is used as billeting for enemy troops.

b.    Destruction, capture, or neutralization offers a definite military advantage:^[90]

(1)  The words “nature, location, purpose or use” allow wide discretion, but are subject to qualifications stated in the definition/test, such as that the object makes an “effective contribution to military action” and that its destruction, capture, or neutralization offers a “definite military advantage” under the circumstances. 
No geographical connection between effective contribution and military advantage is required.  Attacks on military objectives in the enemy rear, or diversionary attacks away from the area of military operations are lawful.

(2)  Military action is used in the ordinary sense of the words and is not intended to encompass a limited or specific military operation.

(3)  The phrase “in the circumstances ruling at the time” is important.  If, for example, enemy military forces take position in a building otherwise regarded as a civilian object (e.g., a school, store, or museum), then the building can become a military objective.  The circumstances ruling at the time, that is, military use of the building, permit its attack if its attack offers a definite military advantage.  If the enemy military forces permanently abandon the building, this change of circumstances precludes its treatment as a military objective.

B.    Warning Requirement.^[91]

1.    Civilians.  Unless circumstances do not permit, effective advance warning must be given for any attack that may affect the civilian population.^[92]  This rule only applies if civilians are present.  Warnings need not be specific as to time and location of the attack, but can be general and issued through broadcasts, leaflets, etc.  If civilians are present, a duty also exists to take feasible precautions to minimize civilian casualties.^[93]  Consider AP I Art. 51, 52 and 57.  Feasible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.^[94]

2.    Religious, Cultural, and Historic Sites.^[95]  Parties are prohibited from using cultural property in a manner likely to expose it to destruction or damage in the event of armed conflict.  Also, cultural property may not be destroyed or damaged unless military necessity imperatively requires such acts.  Even where imperative military necessity exists, feasible precautions should be taken to reduce the risk of harm to cultural property.^[96]  Judge advocates should note that cultural property is a term of art under the law of war—see DoD Law of War Manual, para. 5.18.

3.    Hospitals.   Hospitals are also protected from attack under GC I.  Hospitals and medical facilities that are currently being used wrongfully for military purposes nonetheless always require warnings before attack under Art. 19 and 21 of GC I and AP I Art. 13.  The sole exception to this rule is when a unit is actively taking fire from the hospital and is returning fire in self-defense.^[97]  Warnings need not be specific as to time and location of the attack, but can be general and issued through broadcasts, leaflets, etc.

C.    Defended Places.  As a general rule, any place the enemy chooses to defend makes it subject to attack.  Defended places include:  a fort or fortified place; a place occupied by a combatant force or through which a force is passing; and a city or town that is surrounded by defensive positions under circumstances where the city or town is indivisible from the defensive positions.

D.   Undefended Places.  The attack or bombardment of towns or villages, which are undefended, is prohibited.^[98]

1.    An inhabited place may be declared an undefended place (and open for occupation) if the following criteria are met:

a.    All combatants and mobile military equipment are removed;

b.    No hostile use is made of fixed military installations or establishments;

c.    No acts of hostilities shall be committed by the authorities or by the population; and

d.    No activities in support of military operations shall be undertaken (the presence of enemy medical units, enemy sick and wounded, and enemy police forces are allowed).^[99]

2.    While the HR, Article 25, prohibits attacking undefended “habitations or buildings,” the term was used in the context of intentional bombardment. Such structures remain civilian objects and immune from intentional attack unless they meet the test for a military objective discussed above.

3.    To gain protection as an undefended place, a city or town must be open to physical occupation by ground forces of the adverse party.

E.    Protected Areas.  Hospital or safety zones may be established for the protection of the wounded and sick or civilians.^[100]  Such hospital or safety zones require agreement of the Parties to the conflict.  Articles 8 and 11 of the Hague Cultural Property Convention allows certain cultural sites to be designated in an “International Register of Cultural Property under Special Protections.”^[101]  For example, the Vatican has qualified for and been registered as “specially protected.”  Special Protection status requires strict adherence to avoidance of any military use of the property or the area in its immediate vicinity, such as movement of military personnel or materiel, even in transit.

F.    Protected Individuals and Property.

1.    Civilians.  As discussed above, individual civilians, the civilian population as such, and civilian objects are protected from intentional attack.^[102]  While Article 52(3) of AP I provides for a presumption of civilian status for objects traditionally associated with civilian use (dwellings, school, etc.), the United States has rejected this view.^[103]  The United States applies the same test to all targets, requiring commanders to act in good faith based on the information available at the time.^[104]  The presence of civilians in a military objective does not alter its status as a military objective.

2.    Medical Units and Establishments; Hospitals.^[105]   Fixed or mobile medical units shall be respected and protected.  They shall not be intentionally attacked.  Protection shall not cease, unless they are used to commit “acts harmful to the enemy.”^[106]  As discussed above, both fixed and mobile medical units^[107] and hospitals^[108] require warnings before attack.

3.    Medical Transport.  Transports of the wounded and sick or of medical equipment shall not be attacked.^[109]  While GC I, article 36, only protects medical aircraft from direct attack if they fly in accordance with an agreement between the parties, known medical aircraft are not military objectives liable to attack regardless of the existence of an agreement.^[110]  AP I contains a new regime for medical aircraft protection, which the U.S. suggests should be universally accepted.^[111] To date, there is no State practice with respect to implementation of this regime.  As the United States is not a State Party to AP I, it continues to apply the criteria for protection contained in GC I, Article 36.  The Distinctive Emblem and other devices set forth in the Amended Annex I to AP I are to facilitate identification, but they do not establish status. 

4.    Cultural Property.^[112]  The Hague Cultural Property Convention prohibits targeting cultural property and sets forth conditions when cultural property may be used by a defender or attacked.  Although the United States did not ratify the treaty until 2008, it has always regarded the treaty’s provisions as relevant to the targeting process: “United States policy and the conduct of operations are entirely consistent with the Convention’s provisions.  In large measure, the practices required by the convention to protect cultural property were based upon the practices of U.S. military forces during World War II.”^[113] Cultural property is protected from intentional attack so long as it is not being used for military purposes, or otherwise may be regarded as a military objective.  The Convention defines cultural property as “movable or immovable property of great importance to the cultural heritage of every people.”  Misuse will subject such property to attack.  While the enemy has a duty to indicate the presence of such buildings with visible and distinctive signs, state adherence to the marking requirement has been limited.  U.S. practice has been to rely on its intelligence collection to identify such objects in order to avoid attacking or damaging them.  As discussed above, there are situations where a warning is required before cultural property that has lost its protection may be attacked.  Judge advocates should be aware that there are limitations on both attack of cultural property and the use of cultural property for military purposes.  Consult § 5.18 of the DoD Law of War Manual for details.

G.   Works and Installations Containing Dangerous Forces.^[114]  The United States objects to AP I’s detailed rules governing attacks on works and installations containing dangerous forces.  Under the Protocol, dams, dikes, and nuclear electrical generating stations shall not be attacked (even if military objectives) if the attack will cause the release of dangerous forces and cause “severe losses” among the civilian population.  Military objectives near these potentially dangerous forces are also immune from attack if the attack may cause release of the dangerous forces (parties also have a duty to avoid locating military objectives near such locations).  The United States view is that such targets may be lawfully engaged under LOAC, but raise significant proportionality concerns.^[115]  The United States did not object to AP II’s similar rules in non-international armed conflicts—consult DoD Law of War Manual paragraph 17.7.1 for details.

H.   Objects Indispensable to the Survival of the Civilian Population.  Article 54 of AP I prohibits starvation as a method of warfare.  It is prohibited to attack, destroy, remove, or render useless objects indispensable for survival of the civilian population, such as foodstuffs, crops, livestock, water installations, and irrigation works.  The U.S. generally rejects, however, broad prohibitions on attacking such objects when used to support enemy forces, and it also objects to art. 54(4) on reprisals because it removes “a significant deterrent that protects civilians and war victims on all sides of a conflict.”^[116]  Starvation of civilians as a method of combat is prohibited in both international and non-international armed conflict.^[117]

I.     Protective/Distinctive Emblems.^[118]  Objects and personnel displaying certain protective or distinctive emblems are presumed to be protected under the Conventions.^[119]

1.    Medical and Religious Emblems.  The recognized emblems are the Red Cross, Red Crescent, and the newly-ratified AP III symbol, the Red Crystal (also ratified by the U.S.).^[120]  The Red Lion and Sun, though protected by GC I, is no longer used.  Also, the Red Star of David was proposed as an additional emblem, and, while never officially recognized by treaty, was protected as a matter of practice during the periods it was used.

2.    Cultural Property Emblems.  Cultural property is marked with “[a] shield, consisting of a royal blue square, one of the angles of which forms the point of the shield and of a royal blue triangle above the square, the space on either side being taken up by a white triangle.”^[121]  Examples of cultural property include museums, ancient ruins, and monuments with historical significance.

3.    Works and Installations Containing Dangerous Forces.  Although the U.S. objects to AP I, art. 56, the article proposes that works and installations containing dangerous forces are marked with three bright orange circles, of similar size, placed on the same axis, the distance between each circle being one radius.^[122]  Works and installations containing dangerous forces include dams, dikes, and nuclear power facilities.

XI.  Means OF Warfare: WEAPONS

A.   Means and Methods.  The laws of war guide two related choices in combat: (1) the means, that is, the weapons used to fight; and (2) the methods, that is, the tactics of fighting. Parties to a conflict must observe the LOAC, or face consequences.  “The right of belligerents to adopt means of injuring the enemy is not unlimited.”^[123]  To properly advise war fighters, JAs must be proficient not only in what legally may be targeted, but also how the objective can be targeted.

B.    Legal Review.  All U.S. weapons, weapons systems, and munitions must be reviewed by authorized attorneys within DoD for legality under the LOAC.^[124]  Per DoDD 5000.01, this review occurs before the award of the engineering and manufacturing development contract and again before the award of the initial production contract.  Legal review of new weapons is also required under Article 36 of AP I.

1.    Effect of legal review.  The weapons review process of the United States entitles commanders and all other personnel to assume that any weapon or munition contained in the U.S. military inventory and issued to military personnel is lawful.  If there are any doubts, questions may be directed to the International and Operational Law Division (HQDA, DAJA-IO), Office of The Judge Advocate General of the Army.  The Center for Law and Military Operations (CLAMO) at The Judge Advocate General’s Legal Center and School (TJAGLCS) maintains a database of approved weapons reviews.^[125]

2.    Illegal Weapons.

a.    Weapons causing unnecessary suffering as determined by the “usage of states,” are per se illegal. Examples of such illegal weapons include poison, poisoned weapons, poisonous gases, and other chemical weapons; biological weapons; certain environmental modification techniques; weapons that injure by fragments that are non-detectable by X-rays; certain types of mines, booby-traps, and other devices; and lasers specifically designed to cause permanent blindness to unenhanced vision.^[126]

b.    Other weapons have been rendered illegal by agreement or prohibited by specific treaties.  Certain land mines, booby traps, and “blinding laser weapons” are prohibited by Protocols to the CCW.  Anti-personnel land mines and booby traps were regulated (and, in some cases, certain types prohibited) in order to provide increased protection for the civilian population.  Specific weapons prohibitions are discussed in greater detail below.

3.    Improper use of legal weapons. Any weapon may be used unlawfully; for example, use of an M9 pistol to murder a POW.  This may not be a violation of the principle of “unnecessary suffering,” but would most likely violate the principles of necessity and distinction.  However, use of an M9 pistol to wound a combatant in various parts of his or her body with the intent to watch that combatant suffer would be a violation of the principle of unnecessary suffering.

C.    Specific Weapons Treaties.  Certain weapons are the subject of specific treaties or other international law instruments of which JAs need to be aware:

1.    Certain Conventional Weapons.^[127]  The 1980 United Nations Convention on Certain Conventional Weapons (CCW) is the leading and preferred U.S. framework to restrict, regulate, or prohibit the use of certain otherwise lawful conventional weapons.  The United States has ratified the CCW, and its five Protocols described below, plus Amended Protocol II.  The LOAC Documentary Supplement reprints the CCW and its Protocols.  In summary:

a.    Protocol I prohibits any weapon whose primary effect is to injure by fragments which, when in the human body, escape detection by x-ray.

b.    Protocol II regulates use of mines, booby-traps, and other devices, while prohibiting certain types of anti-personnel mines to increase protection for the civilian population.  Amended Mines Protocol (AMP) II has since replaced the original Protocol II.  The United States regards certain land mines (anti-personnel and anti-vehicle) as lawful weapons, subject to the restrictions contained in CCW AMP II and national policy.  U.S. military doctrine and mine inventory comply with each, for example, command detonated Claymore mines.  Many nations (but not the United States) are party to a competing (and more comprehensive) treaty, the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (also known as the Ottawa Treaty or Anti-Personnel Mine Ban Convention), an NGO-initiated treaty that bans all anti-personnel landmines, with the exception of limited numbers for training purposes only.  Claymore mines utilizing a human operator are still legal under the Ottawa treaty.^[128] 

     (1) Per a February 2004 U.S. Presidential Memorandum under George W. Bush, and after its 2010 deadline, the United States no longer employed anti-personnel landmines that do not automatically self-destruct or self-neutralize (sometimes called “dumb” or “persistent” anti-personnel land (APL) mines).  However, on September 23, 2014, the Obama Administration went further and announced that it would discontinue production of all anti-personnel landmines, regardless of whether they were persistent or non-persistent.  The policy also halted any service life extension of existing APLs through maintenance.  In addition, the policy statement prohibited the use of any anti-personnel landmines (persistent or non-persistent) outside the Korean peninsula. 

     (2) This restriction to the Korean peninsula was removed by the Trump Administration on January 31, 2020.  President Trump delegated the authority to store and employ non-persistent anti-personnel landmines to combatant commanders in major combat situations.  However, such landmines included necessary safeguards to prevent them from being a threat to civilians post conflict.^[129]  On June 21, 2022, the Biden Administration rescinded President Trump’s anti-personnel landmine policy, delegating authority to combatant commanders.  Today, U.S. policy closely aligns with the key provisions of the Ottawa Treaty, outside of the Korean Peninsula.[130]   

c.    Protocol III does not ban incendiary weapons but restricts their use near civilian areas to increase civilian population protections.  Napalm, flame-throwers, and thermite/thermate type weapons are incendiary weapons.  Protocol III, Article 1(b) states that incendiaries do not include munitions with incidental incendiary effects such as “illuminants, tracers, smoke or signaling systems;” or munitions designed to combine “penetration, blast, or fragmentation effects with an additional incendiary effect”—particularly when the munition’s primary purpose is not burn injury to persons.^[131]  Thus, white phosphorous is not an incendiary weapon when used as a tracer or illuminant, or in appropriate combined effects munitions.  The United States ratified Protocol III with the reservation that incendiary weapons may be used against military objectives in areas of civilian concentrations if such use will cause fewer civilian casualties; for example, against a chemical munitions factory in a city to incinerate escaping poisonous gases.

d.    Protocol IV prohibits “blinding laser weapons,” defined as laser weapons specifically designed to cause permanent blindness to unenhanced vision.^[132]  Other lasers are lawful, even those that may cause injuries including permanent blindness, incidental to their legitimate military use (range-finding, targeting, etc.).

e.    Protocol V on explosive remnants of war requires the parties to an armed conflict, where feasible, to clear or assist the host nation or others in clearance of unexploded ordnance or abandoned explosive ordnance after cessation of active hostilities.

2.    Cluster Bombs or Combined Effects Munitions (CM).  CM constitute effective weapons against a variety of targets, such as air defense radars, armor, soft-skinned vehicles, artillery, and large enemy personnel concentrations.  In particular, they are far more effective than conventional bombs against large area targets that are lightly armored.  Since the bomblets or submunitions dispense over a relatively large area and a small percentage typically fail to detonate, this may create an unexploded ordinance (UXO) hazard.  Under U.S. policy, CMs are not mines, are legal under the laws of armed conflict, and are not designed to go off as anti-personnel devices.  However, disturbing or disassembling submunitions may explode them and cause civilian casualties.^[133]

a.    Another NGO-initiated treaty, the 2008 Convention on Cluster Munitions (CCM), prohibits development, production, stockpiling, retention or transfer of cluster munitions (CM) between signatory States.  Also known as the Oslo Process, this recent treaty binds many U.S. allies, including France, Germany, and the United Kingdom, but the nations that manufacture or use CMs (Russia, China, India, Israel) still reject it.  The United States is not a party as it continues to use CMs for certain targets as described above but lobbied to preserve interoperability for non-signatory states to use and stockpile CM even during multinational operations.

b.    In 2017, DoD changed its CM policy.  The current policy requires procurement of CM that have either a less than 1% unexploded ordnance (UXO) rate or possess advanced features to minimize UXO risk.^[134]  It also requires military departments to budget to procure compliant CM.  In the meantime, however, it allows Combatant Commanders to approve legacy cluster munitions if necessary.  Current U.S. practice is to mark coordinates and munitions expended for all uses of cluster munitions, and to engage in early and aggressive EOD clearing efforts as soon as practicable.^[135]  Such marking and clearance activities are required by the new CM policy.  From 2008-2011, the United States also sponsored an unsuccessful effort to add a new CCW Protocol regulating—but not banning—cluster munitions.^[136]  The Obama Administration reiterated its opposition to the CCM.

3.    Exploding Bullets. The 1868 Declaration of St. Petersburg prohibits exploding rounds of less than 400 grams.  The United States is not a State Party to this declaration and does not regard it as CIL.  State practice since 1868 has limited this prohibition to projectiles weighing less than 400 grams specifically designed to detonate in the human body.^[137]  The prohibition on projectile weight must be distinguished from overall cartridge weight.

4.    Hollow point or soft point ammunition.  Hollow point or soft-point ammunition consists of projectiles with either a hollow point that bores into the lead core or an exposed lead core that flattens easily in the human body.  These types of ammunition are designed to expand dramatically upon impact at all ranges.  While expanding military small arms ammunition is prohibited by the 1899 Hague Declaration Concerning Expanding Bullets, the United States is not a party to this treaty and takes the position that the “law of war does not prohibit the use of bullets that expand or flatten easily in the human body. Like other weapons, such bullets are only prohibited if they are calculated to cause superfluous injury.”^[138]  “MatchKing” ammunition (or similar rifle projectiles produced by other manufacturers) has an open tip, with a tiny aperture not designed to cause expansion.  This design enhances accuracy only and does not function like hollow or soft point projectiles.

5.    Poison.  Poison has been outlawed for generations and is prohibited by treaty.^[139]

6.    Biological Weapons.^[140]  The 1925 Geneva Gas Protocol prohibited only biological (bacteriological) weapon use.  The 1972 Biological Weapons Convention (BWC) extended this prohibition, prohibiting development, production, stockpiling, acquisition, or retention of biological agents or toxins, weapons, equipment or means of delivery designed to use such toxins for hostile purposes or in armed conflict.^[141]  The United States has renounced all use of biological and toxin weapons.

7.    Chemical Weapons.^[142]  The 1925 Geneva Gas Protocol prohibits use in war of asphyxiating, poisonous, or other gases (and bacteriological weapons; see below).  Initially, the United States reserved the right to respond with chemical weapons to a chemical or biological weapons attack by the enemy.  This reservation became moot when the United States in 1997 ratified the Chemical Weapons Convention (CWC), which prohibits production, acquisition, stockpiling, retention, and use of chemical weapons—even in retaliation.

a.    Key Provisions.  There are twenty-four articles in the CWC.  Article 1 is the most important, and state’s parties agree to never develop, produce, stockpile, transfer, use, or engage in military preparations to use chemical weapons.  It strictly forbids retaliatory (second) use, which represents a significant departure from the Geneva Gas Protocol.  The CWC requires the destruction of chemical stockpiles.  It also forbids the use of Riot Control Agents (RCA) as a “method of warfare.”  Article 3 requires parties to declare stocks of chemical weapons and facilities they possess.  Articles 4 and 5 provide procedures for destruction and verification, including routine on-site inspections.  Article 8 establishes the Organization for the Prohibition of Chemical Weapons (OPWC).  Article 9 establishes the procedures for “challenge inspection,” which is a short-notice inspection in response to another party’s allegation of non-compliance.

b.    Riot Control Agents (RCA).^[143]  U.S. RCA Policy is found in Executive Order 11850.  The policy applies to the use of Riot Control Agents and Herbicides, requiring presidential approval before first use in an international armed conflict.

(1)  Executive Order 11850.^[144]  The order renounces first use of RCA in international armed conflicts except in defensive military modes to save lives.  Such defensive lifesaving measures include:  controlling riots in areas under direct and distinct U.S. military control, to include rioting prisoners of war; dispersing civilians where the enemy uses them to mask or screen an attack; rescue missions for downed pilots/passengers and escaping POWs in remote or isolated areas; and, in our rear echelon areas outside the zone of immediate combat, to protect convoys from civil disturbances, terrorists, and paramilitary organizations.

(2)  The CWC prohibits RCA use as a “method of warfare.”  “Method of warfare” is undefined.  The Senate’s resolution of advice and consent for ratification to the CWC^[145]  required that the President must certify that the United States is not restricted by the CWC in its use of riot control agents, including the use against “combatants” in any of the following cases:  when the U.S. is not a party to the conflict, in consensual peacekeeping operations, and in Chapter VII (UN Charter) peace enforcement operations.^[146]

(3)  The implementation section of the Senate resolution requires that the President not modify E.O. 11850.  The President’s certification document of 25 April 1997 states that “the United States is not restricted by the convention in its use of riot control agents in various peacetime and peacekeeping operations.  These are situations in which the United States is not engaged in the use of force of a scope, duration, and intensity that would trigger the laws of war with respect to U.S. forces.”  Thus, the authority to use RCA is potentially easier to obtain when the United States in not involved in a “war” – an international armed conflict to which the US is a party.

(4)  Oleoresin Capsicum Pepper Spray (OC), or Cayenne Pepper Spray.  The United States classifies OC as a Riot Control Agent.^[147]

c.    Herbicides.  E.O. 11850 renounces first use in armed conflicts, except for domestic uses and to control vegetation around defensive areas.  Use of herbicides in war by the U.S. armed forces requires Presidential approval.^[148]

XII.  MEANS OF WARFARE: StratEgIES and Tactics

A.   Ruses.^[149]  “Ruses of war are acts that are intended to mislead an adversary or to induce him to act recklessly, but that do not infringe upon any rule of international law applicable in armed conflict and that are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law.”^[150] Ruses of war are permissible.^[151]  Examples of ruses include the following:

1.    Land Warfare.  Creation of fictitious units by planting false information, putting up dummy installations, false radio transmissions, using a small force to simulate a large unit, feints, etc.^[152]  Example:  1991 Gulf War:  Coalition forces, specifically XVIII Airborne Corps and VII Corps, used phony weapons to create the impression that they were going to attack near the Kuwaiti boot heel, as opposed to the “left hook” strategy actually implemented.^[153]  Perhaps the most famous example of a ruse is the D-Day landings in Normandy.  Before the invasion, the Allies deployed huge numbers of dummy weapons across the English Channel from the French town of Calais, to convince the Germans that the Allies planned to land there.

2.    Use of Enemy Property.  Use of enemy property to deceive is limited.  Enemy property may be used to deceive under the following conditions:

a.    Uniforms.^[154]  Under the U.S. position, Combatants may wear enemy uniforms but cannot fight in them with the intent to deceive.  An escaping POW may wear an enemy uniform or civilian clothing to affect the escape.^[155]   Military personnel captured in enemy uniform or civilian clothing risk being treated as spies.^[156]  In contrast, under the European view espoused by Article 39 of Additional Protocol I, the use of enemy uniforms is prohibited in virtually all cases.

b.    Colors.  The U.S. position regarding the use of enemy flags is consistent with its practice regarding uniforms, i.e., the United States interprets the “improper use” of a national flag^[157] to permit the use of national colors and insignia of the enemy as a ruse as long as they are not employed during actual combat.^[158]

c.    Equipment.  Forces must remove all enemy insignia in order to fight with the equipment.  Captured supplies may be seized and used if state property.  Private transportation, arms, and ammunition may be seized, but must be restored and compensation fixed when peace is made.^[159]

d.    AP I, Article 39(2), prohibits the use in international armed conflict of enemy flags, emblems, uniforms, or insignia while engaging in attacks or “to shield, favor, protect or impede military operations.”  The United States does not consider this article reflective of customary law.  This article, however, expressly does not apply to naval warfare.^[160]  The current and long-standing U.S. position is that under the customary international law of naval warfare, it is permissible for a belligerent warship (both surface and subsurface) to fly false colors (including neutral and enemy colors) and display neutral or enemy markings or otherwise disguise its outward appearance (such as the use of deceptive lighting) in ways to deceive the enemy into believing the warship is of neutral or enemy nationality or is other than a warship.  However, a warship must display her true colors and status prior to engaging in hostilities.^[161]

B.    Military Information Support Operations (MISO).  Formerly known as psychological operations (PSYOP), MISO are lawful.^[162]  In the 1991 Gulf War, U.S. PSYOP units distributed over 29 million leaflets to Iraqi forces.  The themes of the leaflets were the “futility of resistance; inevitability of defeat; surrender; desertion and defection; abandonment of equipment; and blaming the war on Saddam Hussein.”  It was estimated that nearly 98% of all Iraqi prisoners acknowledged having seen a leaflet; 88% said they believed the message; and 70% said the leaflets affected their decision to surrender.^[163]

C.    Treachery and Perfidy.  The LOAC prohibits treachery and perfidy used to kill or wound.^[164]  Perfidy involves injuring the enemy by the enemy’s adherence to the LOAC (actions are in bad faith).  Perfidy degrades the protections and mutual restraints developed in the interest of all Parties, combatants, and civilians.  In practice, combatants find it difficult to respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their claim to protection under the LOAC to gain a military advantage.^[165]

1.    Perfidy Used to Capture.  “Acts of perfidy are acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence.”^[166]  It is prohibited to kill or wound the enemy by resort to perfidy.  However, the United States diverges from AP I Article 37 by interpreting customary international law as not prohibiting capture by resort to perfidy .^[167] 

2.    Perfidy and Misuse of Certain Signs.  In addition to perfidy, it is prohibited to misuse certain signs regardless of whether the purpose is to kill or wound.^[168]  Included are such signs as uniforms and emblems of a neutral state (though some exceptions exist), the distinctive emblems of the Geneva Conventions (such as the Red Cross, Red Crescent, Red Crystal), markings for POW or Civilian Internee camps, markings for hospital, safety, or neutralized zones, markings for cultural property, flags of truce, and distinctive and visible signs to identify civilian objects as such.^[169]  Since the intent of the misuse need not be to kill or wound, this prohibition is broader than the rule against perfidy.

3.    Prohibited acts include:

a.    Use of a flag of truce to gain time for retreats or reinforcements.^[170]

b.    Feigning surrender or the intent to negotiate under a flag of truce.^[171]

c.    Misuse of the Red Cross, Red Crescent, Red Crystal and cultural property symbols.  This provision is designed to reinforce/reaffirm the protections those symbols provide.^[172]  GC I requires that military wounded and sick, military medical personnel (including chaplains), hospitals, medical vehicles, and in some cases, medical aircraft be respected and protected from intentional attack.

d.    Declaring that no quarter will be given or killing/injuring enemy personnel who surrender.^[173]

e.    Compelling nationals of the enemy state to take part in hostilities against their own country.^[174]

D.   Espionage.^[175]  Espionage involves clandestine action (under false pretenses) to obtain information for transmission back to one’s own side.  Gathering intelligence while in uniform is not espionage.  Espionage is not a LOAC violation; however, the Geneva Conventions do not protect acts of espionage.  If captured, a spy may be tried under the laws of the capturing nation.^[176]  Reaching friendly lines immunizes the spy for past espionage activities; therefore, upon later capture as a lawful combatant, the alleged “spy” cannot be tried for past espionage.

E.    Assassination.  Hiring assassins, putting a price on the enemy’s head, and offering rewards for an enemy “dead or alive” are prohibited as treacherous conduct.^[177]  Offering rewards for information leading to capture of an individual, or attacking military command and control or personnel is not assassination, nor prohibited.^[178]

F.    Reprisals.  Reprisals are conduct which otherwise would be unlawful, resorted to by one belligerent against enemy personnel or property in response to acts of warfare committed by the other belligerent in violation of the LOAC, for the sole purpose of enforcing future compliance with the LOAC.^[179]  Individual U.S. military personnel, commanders and units do not have the authority to conduct a reprisal.  That authority is retained at the national level.^[180]

G.   War Trophies/Souvenirs.  The LOAC authorizes the confiscation of enemy military property.  War trophies or souvenirs taken from enemy military property are legal under the LOAC.  War trophy personal retention by an individual soldier is restricted under U.S. domestic law.  Confiscated enemy military property is property of the United States.  The property becomes a war trophy, and capable of legal retention by an individual Soldier as a souvenir, only as authorized by higher authority.  Pillage, that is, the unauthorized taking of private or personal property for personal gain or use, is expressly prohibited.^[181]

1.    War Trophy Policy.  10 U.S.C. § 2579 requires that all enemy material captured or found abandoned shall be turned in to “appropriate” personnel.  The law, which directs the promulgation of an implementing directive and service regulations, contemplates that members of the armed forces may request enemy items as souvenirs.  The request would be reviewed by an officer who shall act on the request “consistent with military customs, traditions, and regulations.”  The law authorizes the retention of captured weapons as souvenirs if rendered unserviceable and approved jointly by DoD and the Bureau of Alcohol, Tobacco, and Firearms (BATF).  Implementing directives have not been promulgated.

2.    The key to a clear and workable war trophy policy is to publicize the policy before deployment, work the policy into all exercises and plans, and train with the policy.  When drafting a trophy policy, consider the “6 Cs”:

a.    COMMON SENSE—does the policy make sense?

b.    CLARITY—can it be understood at the lowest level?

c.    COMMAND INFORMATION—is the word out through all means available?  (Post on unit bulletin boards, post in mess facilities, put in post newspaper, put in PSA on radio, etc.).

d.    CONSISTENCY—are we applying the policy across all layers and levels of command?  (A policy promulgated for an entire Corps is better than diverse policies within subordinate divisions; a policy that is promulgated by the unified command and applies to all of its components is better still).

e.    CUSTOMS—prepare for customs inspections, “courtesy” inspections prior to redeployment, and amnesty procedures.

f.     CAUTION—Remember one of the primary purposes of a war trophy policy:  to limit soldiers from exposing themselves to danger (in both Panama and the 1991 Persian Gulf War, soldiers were killed or seriously injured by exploding ordnance encountered when they were looking for souvenirs).  Consider prohibitions on unauthorized “bunkering,” “souvenir hunting,” “climbing in or on enemy vehicles and equipment.”  A good maxim for areas where unexploded ordnance or booby-traps are problems: “If you didn’t drop it, don’t pick it up.”

XIII.  MILITARY OCCUPATION

A.   The Nature of Military Occupation.  Territory is considered occupied when it is actually placed under the authority of the hostile armed forces.  The occupation extends only to territory where such authority has been established and can effectively be exercised.^[182]  Thus, occupation is a question of fact based on the invader's ability to render the invaded government incapable of exercising public authority.  Simply put, occupation must be both actual and effective.^[183]  However, military occupation (also termed belligerent occupation) is not conquest; it does not involve a transfer of sovereignty to the occupying force.  Indeed, it is unlawful for a belligerent occupant to annex occupied territory or to create a new state therein while hostilities are still in progress.^[184]  It is also forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile occupying power.^[185]  Occupation is thus provisional in nature and is terminated if the occupying power is driven out or voluntarily ends the occupation.

B.    Administration of Occupied Territory.  Occupied territory is administered by military government, due to the inability of the legitimate government to exercise its functions, or the undesirability of allowing it to do so.  The occupying power therefore bears a legal duty to restore and maintain public order and safety, while respecting, “unless absolutely prevented,” the laws of the occupied nation.^[186]  The occupying power may allow the local authorities to exercise some or all of their normal governmental functions, subject to the paramount authority of the occupant.  The source of the occupant's authority is its imposition of government by force, and the legality of its actions is determined by the LOAC.^[187]

1.    In restoring public order and safety, the occupant is required to continue in force the normal civil and criminal laws of the occupied nation, unless they would jeopardize the security of the occupying force or create obstacles to application of the GC IV.^[188]  However, the military and civilian personnel of the occupying power remain immune from the jurisdiction of local law enforcement.

2.    Articles 46-63 of the GC IV establish important fundamental protections and benefits for the civilian population in occupied territory.  Family honor, life, property, and religious convictions must be respected.  Individual or mass forcible deportations of protected persons from the occupied territory to the territory of the occupying power or to a third state are prohibited.^[189]  The occupying power has the duty of ensuring that the population is provided with adequate food, medical supplies and treatment facilities, hygiene, and public health measures.^[190]  In addition, children are subject to special protection and care, particularly with respect to their education, food, medical care, and protection against the effects of war.^[191]

3.    The occupying power is forbidden from destroying or seizing enemy property unless such action is “imperatively demanded by the necessities of war,”^[192] or "rendered absolutely necessary by military operations."^[193]  Pillage, that is, the unauthorized taking of private or personal property for personal gain or use, is expressly prohibited.^[194]  However, the occupying power may requisition goods and services from the local populace to sustain the needs of the occupying force “in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in operations of the war against their country.”  The occupying power is obliged to pay cash for such requisitions or provide a receipt and make payment as soon as possible.^[195]

4.    The occupying power may not compel protected persons to serve in its armed forces, nor may it compel them to work unless they are over eighteen years old, and then only on work that: (1) is necessary for the needs of the occupying force; (2) is necessary for public utility services; or (3) for the feeding, sheltering, clothing, transportation or health of the populace of the occupied country.  The occupied country's labor laws regarding such matters as wages, hours, and compensation for occupational accidents and diseases remain applicable to the protected persons assigned to work by the occupant.^[196]

5.    The occupying power is specifically prohibited from forcing the inhabitants to take part in military operations against their own country, and this precludes requiring their services in work directly promoting the military efforts of the occupying force, such as construction of fortifications, entrenchments, and military airfields. ^[197] However, the inhabitants may be employed voluntarily in such activities.

C.    Security of the Occupying Force:  Penal Law and Procedure

1.    The occupant is authorized to demand and enforce the populace's obedience as necessary for the security of the occupying forces, the maintenance of law and order, and the proper administration of the country.  The inhabitants are obliged to behave peaceably and take no part in hostilities.

2.    If the occupant considers it necessary, as a matter of imperative security needs, it may assign protected persons to specific residences or internment camps.^[198]  Security detainees should not be subjected to “prolonged arbitrary detention.”^[199]  The occupying power may also enact penal law provisions, but these may not come into force until they have been published and otherwise brought to the knowledge of the inhabitants in their own language.  Penal provisions shall not have retroactive effect.^[200]

3.    The occupying power’s tribunals may not impose sentences for violation of penal laws until after a regular trial.  The accused person must be informed in writing in their language of the charges and is entitled to the assistance of counsel at trial, to present evidence and call witnesses, and to be assisted by an interpreter.  The occupying power shall notify the protecting power of all penal proceedings it institutes in occupied territory.  Sentences shall be proportionate to the offense committed.  The accused, if convicted, shall have a right to appeal under the provisions of the tribunal's procedures or, if no appeal is provided for, the accused is entitled to petition against the conviction and sentence to the competent authority of the occupying power.^[201]

4.    Under the provisions of the GC IV, the occupying power may impose the death penalty on a protected person only if found guilty of espionage or serious acts of sabotage directed against the occupying power, or of intentional offenses causing the death of one or more persons, provided that such offenses were punishable by death under the law of the occupied territory in force before the occupation began.^[202]  However, the United States has reserved the right to impose the death penalty for such offenses resulting in homicide irrespective of whether such offenses were previously capital offenses under the law of the occupied state.  In any case, the death penalty may not be imposed by the occupying power on any protected person who was under the age of eighteen years at the time of the offense.^[203]

5.    The occupying power must promptly notify the protecting power of any sentence of death or imprisonment for two years or more, and no death sentence may be carried out until at least six months after such notification.^[204]

6.    The occupying power is prohibited from imposing mass (collective) punishments on the populace for individual offenses.  That is, “[n]o general penalty, pecuniary or otherwise, shall be inflicted upon the populations on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”^[205]

7.    In areas occupied by U.S. forces, military jurisdiction over individuals, other than members of the U.S. armed forces, may be exercised by courts of a military government.  Although sometimes designated by other names, these military tribunals are actually military commissions.  They preside in and for the occupied territory and thus exercise their jurisdiction on a territorial basis.

XIV.  NEUTRALITY

A.   General. Neutrality on the part of a State not a party to an armed conflict consists in refraining from all participation in the conflict, and in preventing, tolerating, and regulating certain acts on its own part, by its nationals, and by the belligerents.  In response, belligerents have a duty to respect the territory and rights of neutral states.  Hague V is a primary source of law.  The degree to which traditional “neutrality” has been modified by the Charter of the United Nations is unclear; it is generally accepted that neutrality law still provides some guidance, particularly regarding collective self-defense actions and jus ad bellum analysis.  Historically, neutrality rights include the following:

1.    The territory of the neutral State is inviolable.^[206]  This prohibits any unauthorized entry into the territory of the neutral State, its territorial waters, or the airspace over such areas by troops or instrumentalities of war.  Thus, belligerents are also specifically prohibited from moving troops or convoys of war munitions or supplies across the territory of a neutral State.^[207]  In consequence, the efforts of the neutral to resist, even by force, attempts to violate its territory cannot be regarded as hostile acts by the offending belligerents.^[208]  However, if the neutral is “unwilling or unable” to prevent such violations of its neutrality by the forces of one belligerent, that belligerent's enemy may be justified in attacking those forces in neutral territory.

2.    Belligerents are also prohibited from establishing radio communications stations in neutral territory to communicate with their armed forces, or from using such facilities previously established before the outbreak of hostilities for that purpose.^[209]  However, a neutral State may permit the use of its own communications facilities to transmit messages on behalf of the belligerents, so long as such usage does not lend assistance to the forces of only one side of the conflict.  Indeed, the neutral must ensure that the measure it takes in its status as a neutral State is impartial, as applied to all belligerents.^[210]

3.    While a neutral State is under no obligation to allow passage of convoys or aircraft carrying the sick and wounded of belligerents through its territory or airspace, it may do so without forfeiting its neutral status.  However, the neutral must exercise necessary control or restrictive measures concerning the convoys or medical aircraft, must ensure that neither personnel nor material other than that necessary for the care of the sick and wounded is carried, and must accord the belligerents impartial treatment.^[211]  In particular, if the wounded and sick or prisoners of war are brought into neutral territory by their captor, they must be detained and interned by the neutral State so as to prevent them from taking part in further hostilities.^[212]

4.    The nationals of a neutral State are also considered as neutrals.^[213]  However, if such neutrals reside in occupied territory during an IAC, they are entitled to the same treatment accorded to the nationals inhabiting the territory prior to its occupation by an enemy State – they are “protected persons”; if they are in a belligerent State to an IAC, the law presumes that they will be treated under the law of nations pertaining to foreign visitors (i.e., they are not “protected persons”), as long as there are normal diplomatic relations between the belligerent and neutral States.^[214]  Neutrals are likewise obliged to refrain from participation in hostilities, and must observe the rules of the occupying/belligerent power.  Moreover, such neutral residents in a belligerent State/territory may be punished by the belligerent State for penal offenses to the same extent as inhabitants of the belligerent State or occupied territory.

5.    A national of a neutral State forfeits neutral status if they commit hostile acts against a belligerent or acts in favor of a belligerent, such as enlisting in its armed forces.  However, such a person is not to be more severely treated than would be a national of the enemy State for the same acts.^[215]

6.    The United States has supplemented the above-described rules of international law concerning neutrality by enacting federal criminal statutes that define offenses and prescribe penalties for violations against U.S. neutrality.  Some of these statutes are effective only during a war in which the United States is a declared neutral, while others are in full force and effect at all times.^[216]

B.    Impact of the United Nations Charter Regime on the Law of Neutrality.

1.    In the event of any threat to or breach of international peace and security, the United Nations Security Council may call for action under Articles 39 through 42 of the UN Charter.  In particular, the Security Council may make recommendations, call for employment of measures short of force, or order forcible action to maintain or restore international peace and security.

2.    For a UN member nation, these provisions of the Charter, if implemented, may qualify that member nation’s right to remain neutral in a particular conflict.  For example, if a member nation is called on by the Security Council, pursuant to Article 42 of the Charter, to join in collective military action against an aggressor State, that member nation loses its right to remain neutral.  However, the member nation would not actually lose its neutral status unless it complied with the Security Council mandate and took hostile action against the aggressor.^[217]

3.    If a conflict involves a member State on the UN Security Council that can veto member action under Chapter VII of the UN Charter (e.g., the Russia-Ukraine War), the UN Charter will have no effect on neutrality law.

C.   Qualified Neutrality

1.    Before the United States entered World War II, it adopted a legal position of “‘qualified neutrality’ in which neutral States had the right to support belligerent States that had been the victim of flagrant and illegal wars of aggression.”[218] This position is controversial, but one could argue current State practice in support of Ukraine[219] – as an obvious victim of Russian aggression – followed out of a sense of legal obligation (e.g., consistent with the United Nations’ purpose, in Article 1 of the UN Charter, to maintain international security and suppress acts of aggression), indicates qualified neutrality is becoming accepted as customary international law.[220]  

XV.  COMPLIANCE WITH THE LAW OF ARMED CONFLICT

A.   The Role of Protecting Powers and the ICRC.

1.    The System of Protecting Powers.  During international armed conflicts, Common Articles 8-11 of the Geneva Conventions authorize “the cooperation and . . . scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”[221]  The diplomatic institution of Protecting Powers, which developed over the centuries independent of the LOAC, enables a neutral sovereign state, through its designated diplomatic representatives, to safeguard interests of a second state in the territory of a third state.  Such activities in wartime were first given formal recognition in the Geneva Prisoner of War Convention of 1929.^[222]

2.    Such protecting power activities may be of value when belligerent State Parties sever diplomatic relations.  The Protecting Power attends to the humanitarian interests of those citizens of the second state who are within the territory and under the control of the third state, such as prisoners of war and civilian detainees.

3.    Protecting Power activities reached their zenith during World War II, as the limited number of neutral states acting as protecting powers assumed a role as representatives not merely of particular belligerents, but rather as representatives of the humanitarian interests of the world community.  Since that time, the role of Protecting Powers has been fulfilled by the International Committee of the Red Cross, as authorized by GC I–III, Article 10, and GC IV, Article 11.

B.    The Contributions and Role of the International Committee of the Red Cross (ICRC).  Founded in 1863, the ICRC is an impartial, neutral, and independent humanitarian organization that has played a seminal role in the development and implementation of the LOAC relating to the protection of war victims.  During World War II, the ICRC supplemented the efforts of the protecting powers, and undertook prodigious efforts on behalf of POWs.  Those efforts included the establishment of a Central Prisoner of War Agency with 40 million index cards, 11,000 visits to POW camps, and the distribution of 450,000 tons of relief items.

1.    The role of the ICRC as an impartial humanitarian organization is formally recognized in GC III, Common Articles 9-11 and Article 125, and GC IV, Article 63.  Since World War II, the Protecting Power system has not been widely used, and the ICRC has stepped into the breach as a substitute for government Protecting Powers in international armed conflicts, subject to the consent of the Parties to the conflict.

2.    With respect to NIACs, Common Article 3 of the Geneva Conventions recognizes the prerogative of the ICRC or other impartial humanitarian organizations to offer its services to the parties to the conflict.

3.    Relations between U.S. Military and the ICRC

a.    Subject to essential security needs, mission requirements and other legitimate, practical limitations, the ICRC must be permitted to visit POWs and provide them certain types of relief.  ICRC access and notification is required by statute.^[223]  Typically, the United States will invite the ICRC to observe POW, civilian internee or detainee conditions as soon as circumstances permit.  The invitation to the ICRC for its assistance is made by the U.S. Government (Department of State, in coordination with the Department of Defense), and not by the Combatant Commander.  As a consequence, there is SECDEF guidance on reporting of all ICRC contacts, inspections, or meetings through operational channels.^[224]

b.    Given a JA’s professional qualifications and specialized training in the LOAC, he or she should be integrated into the command’s interaction with the ICRC.^[225]  The JA can quickly identify and resolve many LOAC issues before they become a problem for the commander.  For those LOAC matters requiring command decisions, the JA is best suited to provide advice to the commander and obtain timely responses.  These same skills are essential in dealing with ICRC observers.  The JA can best serve as the commander’s skilled advocate in discussions with the ICRC concerning the LOAC.

c.    It is important to note that the ICRC has a vital role as an impartial humanitarian organization.  While the ICRC’s views may not always align with U.S. policy, the organization is capable of providing assistance in a variety of ways.  In recent conflicts, the ICRC assisted in making arrangements for the transportation of the remains of dead enemy combatants and for repatriating POWs and civilian detainees.  Maintaining a close working relationship with ICRC representatives can assist the JA in identifying potential LOAC issues in the command’s AOR and the organization can serve as an additional resource to resolve various legal and humanitarian matters.

XVI.  Remedies for Violations of the Law of ARMED CONFLICT

1. War Crimes defined:

       1. It is important for commanders to understand that not all criminal misconduct or morally wrongful act committed during armed conflict or where armed conflict occurs is a “war crime.”  Generally, the wrongful act or omissions must: (1) occur during an ongoing armed conflict (but not necessarily where the principal fighting occurs); (2) the act or omission must be a “serious violation” of the LOAC; and (3) there must be a nexus between the charged act/omission and the armed conflict.[226]

       2.  Whether there is a “nexus” is a question of fact dependent on the circumstances of the alleged misconduct and the armed conflict.  One way to answer this question is to determine if the “existence of the armed conflict” played a “substantial part in the perpetrator’s ability to commit [the offense], his decision to commit it, the manner in which it was committed, or the purpose for which it was committed.”[227]

B.    U.S. Military and Civilian Criminal Jurisdiction.

1.    The historic practice of the military services is to charge members of the U.S. military who commit offenses regarded as a “war crime” under enumerated articles of the UCMJ.^[228]  This practice, however, is not explicitly promoted, explained, or required by any existing policy, doctrine, regulation, or statute.

2.    In the case of other persons subject to trial by general courts-martial for violating the laws of war,^[229] the charge shall usually be “Violation of the Laws of War” rather than a specific UCMJ article.

3.    The War Crimes Act of 1996^[230] provides federal courts with jurisdiction to prosecute any person inside or outside the U.S. for war crimes where a U.S. national or member of the armed forces is involved as an accused or as a victim.  The Act’s jurisdiction was amended to include an “offender [who] is present in the United States, regardless of the nationality of the victim or offender.”[231]

4.    The Act defines “war crimes” as: (1) grave breaches as defined in the Geneva Conventions of 1949 and any Protocol thereto to which the U.S. is a party; (2) violations of Articles 23, 25, 27, 28 of the Annex to the Hague Convention IV; (3) violations of Common Article 3 of the Geneva Conventions of 1949 and any Protocol thereto to which the U.S. is a party and deals with a non-international armed conflict; (4) violations of provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps & Other Devices (Protocol II as amended May, 1996) when the U.S. is a party and the violator willfully kills or causes serious injury to civilians.[232]

5.    U.S. policy on application of the LOAC is stated in DoD Directive 2311.01 (2 July 2020):  “It is DoD policy that … [m]embers of the DoD Components [including U.S. civilians and contractors assigned to or accompanying the armed forces] comply with the [LOAC] during all armed conflicts, however characterized. In all other military operations, members of the DoD Components will continue to act consistent with the [LOAC’s] fundamental principles and rules, which include those in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, distinction, proportionality, and honor.”^[233]

B.    Command Responsibility.

1.    Commanders are legally responsible for war crimes:

a.    They personally commit;

b.    They order;

c.    That are committed by their subordinates or those subject to their control and they know or should have known about and take no action to prevent, stop, or punish.^[234] “In order for the commander to be liable, however, the commander’s personal dereliction must have contributed to or failed to prevent the offense; the commander is required to take necessary and reasonable measures to ensure that their subordinates do not commit violations of LOAC.”^[235] The Doctrine of Command Responsibility has a rich American tradition (e.g. the Yamashita case) and has been recognized in the DoD Law of War Manual,^[236] Army Field Manual,^[237] Army Regulation,^[238] and statements of U.S. officials as acceptable for consideration. Further, the ICRC reported that this principle of command responsibility also operates as a matter of customary international law.^[239]

2.    JAs must keep their commanders informed of their responsibilities concerning the investigation and prosecution of war crimes.  The commander must also be aware of potential responsibility for war crimes committed by subordinates.  JAs must also review “all plans, policies, directives, and rules of engagement issued by the command and its subordinate commands.”^[240]  JAs should also help ensure that LOAC investigating and reporting requirements are integrated into all appropriate policies, directives, and operation and concept plans.

3.    Investigative Assets.  Several assets are available to assist commanders investigating suspected violations of the LOAC.  The primary responsibility for an investigation of a suspected, alleged, or possible war crime resides in the U.S. Army Criminal Investigation Command (CID) or, for other military services, CID Command’s equivalent offices.  For other (generally minor) offenses, investigations can be conducted with organic assets and legal support, using AR 15-6.^[241]  (Command regulations, drafted in accordance with DoD Directive 2311.01, should prescribe the manner and level of unit investigation.)  CID has investigative jurisdiction over suspected war crimes in several instances.  The first is when the suspected offense violates Title 18 of the United States Code.  The second is where the offense is one of the violations of the UCMJ listed in Appendix B to AR 195-2, Criminal Investigation Activities (generally felony-level offenses).  HQDA may also direct CID to investigate.^[242]

C.    Reports.   WHEN IN DOUBT, REPORT.  Report a “reportable incident” by the fastest means possible, through command channels, to the responsible combatant commander.  A “reportable incident” is a possible, suspected, or alleged violation of the LOAC for which there is credible information.^[243]  “Credible information” is information that a reasonable military commander would believe to be sufficiently accurate to warrant further review of the alleged violation.  Consider the totality of the circumstances (including reliability of the source and corroboration/contradiction).   Commanders must remember that this is not a duty to determine whether the allegations are true or likely true by some burden of proof (e.g., probable cause, preponderance of the evidence, or beyond a reasonable doubt).  It is simply and only a question of whether the source of the allegation is “credible.”

       1. The reporting requirement should be stated not only in a “27 series” regulation or legal appendix to an OPLAN or OPORD, but also in the unit TACSOP or FSOP.  Alleged violations of the LOAC, whether committed by or against U.S. or enemy personnel, are to be promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.

E.    Prevention of War Crimes.  Commanders must take steps to ensure that members of their commands do not violate the LOAC.^[244]  The two principal means are to recognize the factors which may lead to the commission of war crimes and to train subordinate commanders and troops to standard concerning compliance with the LOAC and proper responses to orders that violate the LOAC.

1.    Awareness of the factors that have historically led to the commission of war crimes allows the commander to take preventive action.  The following is a list of some of the factors that the commander and the judge advocate should monitor in subordinate units.

a.    High friendly losses.

b.    High turnover rate in the chain of command.

c.    Dehumanization of the enemy (derogatory names or epithets).

d.    Poorly trained or inexperienced troops.

e.    The lack of a clearly defined enemy.

f.     Unclear orders.

g.    High frustration level among the troops.

2.    Clear, unambiguous orders are a responsibility of good leadership. Soldiers who receive ambiguous orders or who receive orders that clearly violate the LOAC must understand how to react to such orders.  Accordingly, the judge advocate must ensure that soldiers receive instruction in this area – preferably by Commanders or other unit leaders with assistance by judge advocates and paralegals. Troops who receive unclear orders must insist on clarification.  Normally, the superior issuing the unclear directive will make it clear, when queried, that there was no intent to commit an act that could be a war crime.  If the superior insists that the illegal order be obeyed, however, the soldier has an affirmative legal obligation to disobey the order and report the incident to the next superior commander, military police, CID, nearest judge advocate, or local inspector general.

F.           International Criminal Tribunals.  Violations of the LOAC, as crimes defined by international law, may also be prosecuted under the auspices of international tribunals, such as the Nuremberg, Tokyo, and Manila tribunals established by the Allies to prosecute German and Japanese war criminals after World War II.  The formation of the United Nations has also resulted in the exercise of criminal jurisdiction over war crimes by the international community, with the Security Council’s creation of the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia.

Appendix A

TROOP INFORMATION

The following points should be (and usually are) cited and explained by judge advocates, paralegals, and commanders during LOAC and ROE training:

I.  REASONS TO COMPLY WITH THE LOAC—EVEN IF THE ENEMY DOES NOT

A.  Compliance is required by law and long-standing DoD policy.  LOAC arises in large part from treaties that are part of our national law.  Violation of the LOAC is a serious crime punishable by death in some cases.

B. Compliance ends the conflict more quickly.  During Operation DESERT STORM, favorable treatment of Iraqi Enemy Prisoners of War (EPWs) by coalition forces helped end the war quickly as reports of such treatment likely encouraged massive surrender by the enemy.  Mistreatment of EPWs encourages enemy soldiers to fight harder and resist capture.

C.    Compliance enhances public support of our military mission.  Violations of the LOAC reduce support at home and abroad, undermine the mission, and place fellow Soldiers at risk by turning the public against them.

D.   Compliance encourages reciprocal conduct by enemy soldiers.  Mistreatment of EPWs by our Soldiers may encourage enemy soldiers to retaliate and treat captured U.S. Soldiers in the same manner.

E.    Compliance not only accelerates termination of the conflict, but it also reduces the waste of our resources in combat and the costs of reconstruction after the conflict ends.

II.  SOLDIER’S GENERAL RESPONSIBILITIES IN WARTIME

A.   Carry out all lawful orders as promptly as circumstances require and consistent with the Commander’s intent.

B.    In rare cases when an order seems unlawful, do not carry it out right away, but do not ignore it either. Instead, immediately and respectfully seek clarification of that order.  “Sir/Ma’am, are you ordering me to ______?”  Orders from the lawful chain-of-command are presumed lawful.  If a reasonable person would recognize the wrongfulness of the act or order, even in light of a soldier’s general duty to obey, then the order is “manifestly illegal”, and soldiers have a duty to disobey it.

1.    Soldiers may be held criminally responsible for unlawful acts they personally commit in time of war.  There is no “statute of limitations” on prosecution of war crimes, so Soldiers may be prosecuted years later.

2.    One’s conscience, moral judgment, religious belief, or personal philosophy cannot justify or excuse disobeying an otherwise lawful order.

3.    If a Soldier is court-martialed for carrying out an obviously unlawful order, the “I just followed orders” defense usually fails. By training and common sense, Soldiers must recognize unlawful orders and act appropriately.

C.    Know:

1.    The Soldier’s Rules.

2.    Forbidden targets, tactics, and techniques.  (See related material above).

3.    Rules regarding captured soldiers.

4.    Rules for the protection of civilians and private property.  (See related material above).

5.    Obligations to prevent and report LOAC violations.

III.  THE SOLDIER’S RULES

A.   Fight only enemy combatants.

B.    Do not harm enemies who surrender — disarm them and turn them over to your superior.

C.    Do not kill or torture EPW, or other detainees.

D.   Collect and care for the wounded, whether friend or foe.

E.    Do not attack medical personnel, facilities, or equipment.

F.    Destroy no more than the mission requires.

G.   Treat all civilians humanely.

H.   Do not steal — respect private property and possessions.

I.     Do your best to prevent violations of the law of armed conflict

J.     Report all violations to your superior.

IV.  RULES REGARDING CAPTURED SOLDIERS

A.   Handling Surrender of Enemy Soldiers.

1.    Be cautious.  Follow unit procedures in allowing enemy soldiers to approach your position and surrender.

2.    Waiving the white flag may not mean surrender; it may simply mean that the enemy wants a brief cease-fire so they can safely meet with us.  The enemy may seek such a meeting to arrange surrender, but the meeting may also be sought for other reasons (e.g., to pass a message from their commander to our headquarters or to arrange removal of wounded from the battlefield).

3.    Enemy soldiers must be allowed to surrender if they clearly indicate a desire to—weapons dropped, hands up, etc.  Any order not to accept a clear surrender and continue killing the enemy is unlawful.

B.    Treatment of Captured Soldiers on the Battlefield.

1.    Follow established unit procedures for the handling of EPWs (recall the “5 Ss and T” process).

2.    Treat EPWs humanely.  The willful killing, torture, humiliation, degradation, or other inhumane treatment of an EPW is a very serious LOAC violation—a “grave breach.”  Other LOAC violations are referred to as “simple breaches.”

3.    Do not take EPW personal property except to keep it safe pending release or movement elsewhere.

4.    Protect and otherwise care for EPWs in your custody.  Because this is often difficult in combat, forces must move EPWs to the rear as soon as possible.

5.    Certain captured enemy personnel are not technically EPWs, but are rather referred to as “retained personnel.”  Such retained personnel include medical personnel and chaplains.  Ask a JA for advice.

C.    Your Rights and Responsibilities if Captured.

1.    In General.  Follow training on Code of Conduct, SERE, etc., which provides additional guidance.

2.    Rights as a Prisoner of War (POW).  POWs are entitled to certain mandatory protections and other care from their captors, including food, housing, medical care, mail delivery, and retention of most personal property with a person when captured.  Generally, the POW cannot waive such rights.

3.    Responsibilities as a POW.

a.    POWs must obey reasonable camp regulations.

b.    Information:  If asked, a captured Soldier must provide four items of information (name, rank, service number, and DOB).  Such information is needed by the capturing country to fulfill reporting obligations under international law.

c.    Work.  Junior enlisted POWs may be compelled to work provided the work does not support the enemy’s war effort.  NCOs may be tasked to supervise.  POWs are entitled to payment for their work.  Commissioned officer POWs may volunteer to work or supervise, but shall not be compelled to do so.

V.  OBLIGATIONS TO PREVENT AND REPORT LOAC VIOLATIONS

A.   Prevention.   Soldiers not only must avoid committing LOAC violations, they must also attempt to prevent violations of the LOAC by other U.S. Soldiers.

B.    Reporting Obligation.  Soldiers must promptly report any actual or suspected violations of the LOAC to their superiors.  If that is not feasible under the circumstances, Soldiers report to other appropriate military officers (e.g., IG, JA, or Chaplain).  DoDD 2311.01 (2 July 2020).