LEGAL
OPERATIONS

HEADQUARTERS, DEPARTMENT OF THE ARMY
DISTRIBUTION RESTRICTION: Approved for public release; distribution is unlimited
Field Manual 27-100 FM 27-100
HEADQUARTERS
DEPARTMENT OF THE ARMY
Washington. DC.3 September 1991

LEGAL OPERATIONS

TABLE OF CONTENTS
Page

PREFACE …………………………………………. m …

CHAPTER 1.     THEJUDGE ADVOCATE GENERAL’S CORPS …………………….1

Introduction ………………………………………… 1

The Judge Advocate General’s Corps …………………………. 1

Mission …………………………………………… 1

Legal Services ……………………………………….. 1

CHAPTER 2.     ORGANIZATION OF THE JAGC ……………………………. 7

MembersofJAGC …………………………………….. 7

Who Provides Legal Services ……………………………… 7

Field Operating Agencies ………………………………… 8

Legal Services Command ………………………………… 9

Staff Judge Advocate (SJA) Sections …………………………. 9

Command Judge Advocate (CJA) Sections …………………….. 12

Judge Advocate General Service Organizations ………………….. 12

Legal NCOs and Specialists ……………………………… 12

CHAPTER 3.     JUDGEADVOCATE GENERAL SERVICE ORGANIZATIONS …………… 14

General ………………………………………….. 14

Types of JAGSOs ……………………………………. 14

Support ………………………………………….. 15

Regional Law Center ………………………………….. 15

DKlWBlJTION RFSIRICIION: Approved for public release; distribution is unlimited .

DESlXUCnON NOna Destroy by any method that will prevent disclosure of contents or reconstruction of document .

CHAPTER 4.     OaTECTlVES AND PRINCIPLES OF LEGAL OPERATIONS ……………. 17

Objectives and Principles ……………………………….. 17

AirLand Battle Tenets …………………………………. 18

Combat Service Support Imperatives ………………………… 18

CHAPTER 5.     LEGAL SERVICES IN A THEATER OF OPERATIONS ………………..20

General ………………………………………… 20

Legal Services in the Communications Zone ……………………. 20

Legal Services in the Combat Zone …………………………. 23

Additional Legal Services ……………………………….. 25

CHAPTER 6.     LEGAL OPERATIONS ACROSS THE OPERATIONAL CONTINUUM ……….26

General ………………………………………….. 26

Equipment Requirements ……………………………….. 26

CHAPTER 7.     LEGAL OPERATIONS IN LOW INTENSITY CONFLTCT ……………… 28

General ………………………………………….. 28

Operational Categories …………………………………. 28

Legal Operations in Support of LIC …………………………. 30

CHAPTER 8.     LEGAL OPERATIONS IN WAR ……………………………..35

General ………………………………………….. 35

Unified Command Legal Operations …………………………35

heater Army Legal Operations ……………………………. 36

Corps Legal Operations ………………………………… 37

Division Legal Operations ………………………………. 38

Separate Brigade Legal Operations …………………………. 38

Rear Operations …………………………………….. 39

CHAPTER 9.     LEGAL OPERATIONS IN SPECIAL OPERATIONS …………………. 40

General ………………………………………….. 40

Missions …………………………………………. 40

Duties of Judge Advocates ………………………………. 40

CHAPTER 10.     MOBILIZATION AND THE LAND DEFENSE OF CONUS …………….. 42

Mobilization ……………………………………….. 42

Land Defense of CONUS and Military support’ to Civil Defense ………… 42

Responsibilities ……………………………………… 42

Legal Operations in Support of Mobilization and LDC/MSCD …………. 43

CHAPTER 11.     LEGAL ASPECTS OF CML AFFAIRS OPERATIONS ………………..46

General ………………………………………….. 46

Legal Operations in Support of Civil Affairs ……………………. 46

GLOSSARY ……………………………………….. 49

INDEX …………………………………………… 55

PREFACE

The Judge Advocate General’s Corps’ (JAGC) primary mission in a theater of operations is to support the commander on the battlefield.
FM 27-100 is the Army’s legal operations manual. It describes the operations of JAGC units and personnel within a theater of operations. Legal operations must be flexible and responsive to the demands of unit commanders at all echelons and throughout the operational continuum, requiring legal leaders to anticipate, initiate, and provide needed legal services.
This manual contains doctrine and guidance on legal operations for commanders, staffs, and judge advocates. It describes the structure of the JAGC and its units. It defines the missions, roles, duties, and responsibilities of members of the Judge Advocate General’s Corps. The intended audience for this manual is commanders at all echelons and members of the Judge Advocate General’s Corps Regiment.
This manual reflects and supports FM 100-5, Operations, FM 100- 10, Combat Service Support, and FM 101-5, Staff Ornanization and Operations.
The proponent of this publication is The Judge Advocate General’s School, US Army. Send comments and recommendations on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to Commandant, The Judge Advocate General’s School, US Army, ATTN: JAGS-DDC, charlottesale, Virginia 22903-1781.
Unless otherwise stated, specific gender pronouns include men and women.
CHAPTER 1
The Judge Advocate General’s Corps

Section I Introduction
1-1. The theater strategic environment consists of a variety of conditions–political, economic, and military-and a range of threats–low to high. A wide range of operations can occur in response to these conditions and threats. These operations form the operational continuum and occur within three general states: peacetime competition, conflict, and war. FM 100-5, Operations, and FM 100-10, Combat Service Support, recognize the Army must be capable of operating effectively across the operational continuum and in any battlefield environment.
Legal operations must be equally flexible. Legal operations apply the AirLand Battle tenets of initiative, agility, depth, and synchronization and the combat service support imperatives of anticipation, integration, continuity, responsiveness, and improvisation to provide responsive legal services to the commander.
Section I1 The Judge Advocate Gends Corps
1-2.Reflecting the Army’s strategic roles in an increasingly complex world, the JAGC provides mission essential legal services in many different fields, including military justice, government contracting, claims, litigation, operational law, international law, legal assistance, environmental law, mobilization law, and more. All members of the Judge Advocate General’s Corps–judge advocates, legal warrant officers, legal noncommissioned officers, legal specialists, and court reporters–provide professional legal services to the Army.
Section 111 Mission
1-3. The Army’s mission is to:
a. Provide a visible, credible, and realistic capability to support the nation’s political initiatives.
b.
Deter war against the United States.

c.
Win and terminate a conflict on terms favorable to the United States if war should occur.

14. The JAGC’s primary mission in a heater of operations is to support the commander on the AirLand Battlefield by providing professional legal services as far forward as possible at all echelons of command throughout the operational continuum.
Section IV Legal Services
1-5. Legal personnel provide legal services in the form of professional advice, representation, support, research, training, and assistance designed to resolve legal issues to commanders, staffs, soldiers, and other authorized personnel. The commander determines legal requirements based on the mission and the law. Legal services are an element of the Personnel Service Support (PSS) mission area and support the Command and Control and Combat Service Support (CSS) Battlefield Operating Systems (BOS). Three types of legal services exist: organizational, judicial, and defense.
1-6.Organizational legal services sustain the organization. Organizational legal services support:
a.
Commanders. The commander is responsible for the unit’s good order, discipline, morale, and welfare. The commander must command and employ his forces in accordance with the law. Legal personnel provide all commanders the legal services necessary to properly execute these responsibilities under the law, customs, and traditions of military service.

b.
The organization. Legal operations increase unit readiness in peace and enhance combat effectiveness in war. In peace, legal operations ensure the organization is prepared to mobilize, deploy, and fight. During conflict, legal

operations help sustain the organization.
c. Soldiers. The key to an organization’s readiness is the individual soldieis readiness and morale. Legal personnel provide legal services– such as legal assistance and claims–to soldiers, their family members, and other authorized personnel to maintain a high degree of personal readiness and morale. Legal services, including judicial and defense legal services, also maintain discipline and morale by assuring the fair and impartial administration of military justice.
1-7.Judicial legal services secure fair and impartial military justice proceedings within the Army. Military trial and appellate judges provide judicial legal services.
a.
Military trial judges preside over general and special courts-martial. They perform all judicial duties required or authorized by law, including the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, and regulation. These duties are similar to those of federal district court judges presiding over criminal cases. Military trial judges also perform magistrate duties, such as issuing authorizations to search for and seize evidence based on probable cause. To ensure the fact and appearance of impartiality, military judges are assigned to and rated by senior members of the United States Army Trial Judiciary, which is independent of the units they serve. (The only exception is military judges assigned to Judge Advocate General Service Organization senior military judge or military judge teams. See Chapter 3, paragraphs 3.2 g and h.)

b.
Military appellate judges sit on the United States Army Court of Military Review .(ACMR). ACMR reviews cases referred to it and affirms only findings of guilty and sentences supported by the law and facts.

1-8. Defense legal services are provided to individual soldiers to secure fair and impartial military justice and adverse administrative proceedings within the Army. Trial and appellate defense counsel provide defense legal services.
a. Trial defense counsel are judge advocates certified by The Judge Advocate General under article 27(b), UCMJ, as competent to perform defense legal services. They represent soldiers before courts-martial, administrative boards, and other proceedings and act as consulting counsel as required by law or regulation or authorized by The Judge Advocate General (TJAG) or TJAG’s designee. To ensure the fact and appearance of their independence, all trial defense counsel are assigned to and rated by members of the United States Army Trial Defense Service, which is independent of the units trial defense counsel serve. (The only exception is trial defense counsel assigned to Judge Advocate General Service Organization court-martial defense teams.
-See
Chapter 3, paragraph 3.2 d.)

b.
Appellate defense counsel represent military accused before the ACMR, United States Court of Military Appeals, and the United States Supreme Court. They also are certified by The Judge Advocate General.

1-9.The JAGC provides legal services in seven functional areas.
a. Administrative Law. Military administrative law encompasses the statutes, regulations, and judicial decisions that govern the establishment, functioning, and command of military organizations. Judge advocates interpret statutes and regulations, provide the commander and staff advice and guidance, and represent the Army before administrative and judicial proceedings. Military administrative law includes, but is not limited to:
(1)
The law of military installations and the commandeis power to command and control the installation (legal basis of command).

(2)
Military assistance to civil authorities, which includes the use of military forces to assist civilian law enforcement authorities, to restore and maintain public order, and for emergencies and public safety; the loan of military resources; and the role of soldiers in civil disturbance and antidrug operations.

The report of survey system. (3)
Federal litigation, which includes judicial review of military judicial and administrative actions.

(4)
Environmental law, which includes domestic–federal, state, and local–and foreign environmental laws affecting the operations of an installation or organization.

(5)
Military personnel law, which includes laws and regulations concerning personnel recruitment, mobilization, appointments, promotions, adverse actions, separations, and retirements.

(6)
Line of duty investigations and determinations.

(7)
Labor and employment law, which includes laws, regulations, and procedures governing recruiting, hiring, evaluating, and disciplining Army civilian employees; certifying and negotiating with labor unions; labor- management relations including grievances, arbitrations, and unfair labor practice charges; and equal employment opportunity (EEO) discrimination complaints.

(8)
Government information practices, which include the Freedom of Information and the Privacy Acts.

(9)

(1
0) Nonappropriated fund instrumentalities and private organizations.

(11)
Standards of conduct, which include statutory and regulatory guidance governing prohibited activities and conflicts of interest involving active duty, civilian personnel, former employees, and retired active duty and civilian personnel of the Army.

b.
Claims. The Army claims program involves the investigation, processing, and administrative settlement of claims–both by and against the United States–worldwide under

statutes, treaties, international agreements, DOD directives, and Army regulations.
(1)
The bases for claims against the United States include:

a.
Damage or injury caused by the negligent or wrongful acts or omissions of military personnel acting within the scope of their employment.

b.
Damage or injury caused by noncombat activities; ie., activities that are essentially military in nature and have little parallel in civilian life.

d Unique or special claims provisions. c.
Loss, damage, or destruction of personal property of soldiers or DA civilian employees that occurs incident to military service; e.g., the loss, damage, or destruction of household goods during a permanent change of station move.

(2)
The bases for claims in favor of the United States include:

a.
The negligent or intentional infliction of damage to government property.

b.
The recovery of medical costs incurred by the United States to treat persons for whom the United States is authorized or required to provide medical care if the patient suffers an injury or a disease under circumstances creating a tort liability upon a third person or if the United States has a statutory right to recover regardless of tort liability.

c.
Contract Law. Contracting is the principal means by which the United States acquires goods and services from the private sector. Judge advocates are involved in all phases of the acquisition process. Contract law judge. advocates provide advice concerning the fiscal process and statutory and regulatory constraints involved in funding military

operations. They also provide counsel on the acquisition of goods and services for the Army. Contract law includes:
(1)
Development, award, and administration of appropriated and nonappropriated fund contracts.

(2)
The proper utilization and expenditure of funds, referred to as fiscal law.

(3)
The operation of the Commercial Activities Program.

(4) The coordination and monitoring of
remedies in an effective fraud abatement program.
(5)
The application of federal, state, and local tax laws to government contractors.

(6)
Contract related litigation, disputes, and protests.

(7)
Labor, environmental, and intellectual property law applicable to contractors.

(8)
Procurement integrity and contract fraud laws.

(9)
Advice for proposed interservice, interdepartmental, and international agreements for logistic support and for proposed agreements on joint utilization of facilities and real property controlled by the Army.

(10)
Advice on real estate and construction issues overseas.

d.
Criminal Law. Criminal law governs the administration of military justice. It includes the Constitution of the United States, the Uniform Code of Military Justice, the Manual for Courts- Martial, implementing regulations, and judicial decisions. Military justice involves the disposition of alleged violations of the UCMJ by judicial (courts-martial), nonjudicial (article 15, UCMJ), or administrative means. Discipline, good order, and morale depend on a fair and properly

administered military justice system. Enforcement of the UCMJ supports the authority of the commander and protects the rights of the individual soldier. In the military criminal law system:
(1)
The commander is responsible for the administration of military justice. Commanders must communicate directly with their command or staff judge advocate about matters related to the administration of military justice.

(2)
Staff and command judge advocates advise commanders on the disposition of suspected violations of the UCMJ, including those committed by enemy prisoners of war; prosecute trials by courts-martial; and supervise the preparation of records of trial.

(3)
The United States Army Trial Defense Service provides trial defense counsel to represent soldiers before courts-martial, adverse administrative boards, and other proceedings as law or regulation requires.

(4)
The United States Army Trial Judiciary provides military judges for general and special courts-martial.

(5)
Appeals of convicted military accused may be reviewed by United States Army Court of Military Review (ACMR), which is part of the United States Army Judiciary; the United States Court of Military Appeals; and the United States Supreme Court. In cases not reviewed by ACMR, a convicted accused may submit an application for relief or petition for new trial to The Judge Advocate General. The United States Army Legal Services Agency provides appellate government and defense counsel in all appellate proceedings.

e.
International Law. International agreements, international customary practices, and the general principles of law recognized by civilized nations comprise international law. Judge advocates advise commanders and staffs on:

(1)
The rights and obligations of the

organization under international law–particularly status of forces and host nation support agreements.
Taxes. Nonsupport and indebtedness. Adoptions and name changes. Wills and estates. Other international law matters. Negotiations with foreign governments. (2)

(3)
The exercise of criminal jurisdiction over United States forces and accompanying personnel by foreign governments.

(4)
Foreign Law. This includes advice on criminal law, civil law, environmental law, tax law, and labor law of a host nation or foreign country where United States forces are operating or have an interest.

(5)
Legal liaison with the host nation and other allied forces.

(6)

f.
Legal Assistance. Legal assistance is the provision of personal legal services to soldiers, their family members, and other authorized personnel. Legal assistance includes advice, representation, and the preparation of legal documents. Personal legal problems, if not attended to, may cause low morale, inefficiency, and disciplinary problems. Legal assistance judge advocates regularly participate in preparation for overseas movements (POM) and emergency deployment readiness exercises (EDRE) to identify and address soldiers’ personal legal problems that could affect adversely their ability to mobilize, deploy, and fight. Legal assistance services include, but are not limited to:

(1)
Domestic relations law, which includes divorce, legal separation, annulment, custody, support obligations, and paternity.

(2)

(3)

(4)

(5)

Targets and weapons. Operations plans and orders. 1) Veterans’ reemployment rights. Insurance. Consumer affairs. andl lord-tenant relations. (6)

(7)

(8)
Civil suits. Legal assistance attorneys usually cannot represent a client in court, but will explain the procedures and requirements of small claims and similar courts; will negotiate with adverse parties on the client’s behalf; and will refer the client to a civilian attorney, if required.

(9)
The Soldiers’ and Sailors’ Civil Relief Act.

(10)

(1

(12)
Other services with approval of the staff judge advocate.

g.
Operational Law. Operational law is the application of domestic, international, and foreign law to the planning for, training for, deployment of, and employment of United States military forces. Operational law legal services increase the effectiveness of United States military forces by assisting commanders to employ them lawfully. Just as important, judge advocates identify areas in which planners have been overly restrictive in the use of force in the mistaken belief that the law requires the restrictions. Judge advocates:

(1)
Advise the commander, staff, and subordinate commanders on the law of war; all relevant international law matters, including status of forces and other international agreements and treaties; and domestic law addressing the use of United States forces abroad, such as the War Powers Resolution. These matters include advice on:

a.

b.

c.
The investigation and disposition of alleged violations of the law of war (war crimes).

d.
Treatment of detainees, enemy prisoners of war, and refugees.

e.
The seizure and requisition of private property for military use.

f: The legal aspects of civil affairs operations. See Chapter 11.
(2)
Prepare legal annexes to operations orders.

(3)
Review and interpret rules of engagement.

(4)
Provide unit training on the law of war as required by treaty and regulation.

CHAPTER 2
Organization of the JAGC

Section I Members of JAGC
2-1. The JAGC is a special branch of the Army that exists in the Regular Army, the Army National Guard, and the United States Army Reserve. The JAGC consists of:
a. General officers serving as:

(1)
The Judge Advocate General of the Army (TJAG). TJAG heads the JAGC, is a personal staff officer, and has duties established by statute, regulation, delegation, designation, and assignment. TJAG:

a.
Is responsible for providing legal services to the Army.

b.
Is the legal advisor to the Chief of Staff, Army (CSA), members of the Army Staff, and members of the Army generally.

c.
Serves as military legal advisor to the Secretary of the Army (SA) and members of the Secretariat, in coordination with the General Counsel, Department of the Army (DA).

d Directs the members of the Judge Advocate General’s Corps in the performance of their duties.
(2)
The Assistant Judge Advocate General (TAJAG). TAJAG supervises the field operating agencies (FOA) of TJAG and the Intellectual Property Office, the Regulatory Office, the Standards of Conduct Office, and the Information Management Office, and is responsible for the organization, administration, and functioning of the Office of The Judge Advocate General (OTJAG).

(3)
The Assistant Judge Advocate General for Civil Law and Litigation (AJAG/CIV).

(4)
The Assistant Judge Advocate General for Military Law and Operations (AJAG/MIL).

Other members of the Army assigned or ARNG Special Assistant to TJAG, DA. Chief Judge, ACMR (IMA). (5)
The Commander, United States Army Legal Services Agency (USALSA) .

(6)

(7)
Assistant Judge Advocate General for Operations jIMAj.

(8)

b.
Commissioned officers appointed to the JAGC.

c.

detailed to the JAGC by the Secretary of the Army.
Section I1 Who Provides Legal services
2-2. TJAG is responsible for providing legal services to the Army. Legal services are provided by:
The Legal Services Command. a.
The Office of The Judge Advocate General (OTJAG).

b.
Field operating agencies (FOA) of The Judge Advocate General.

c.

d.
Staff or command judge advocate sections of Army units or installations.

e.
Judge Advocate General Service Organizations (JAGSO).

f.
Legal noncommissioned officers and specialists assigned to personnel and administration centers (PAC) of brigades, groups, regiments, battalions, and squadrons.

2-3. OTJAG is an element of the Army Staff. It provides legal services to the CSA, members of the Army Staff, agencies of the Army, and members of the Anny generally; establishes policies for the delivery of legal services; and directs assignment of members of the JAGC. For additional information see AR 27-1.
Section III Field Operating Agencies
2-4. TJAG’s FOAs are the United States Army Legal Services Agency (USALSA), United States Army Claims Service (USARCS), and The Judge ~dvocate General’s School, Army (TJAGSA). For a detailed description of their organization and functions, see AR 10-72.
a. USALSA. A primary mission of this organization is to promote the effective use and delivery of legal services by military judges and defense counsel by guaranteeing their independence.
(1)
The Commander, USALSA, is the Chief, United States Army Judiciary, and, as such, supervises:

a.
The United States Army Court of Military Review (ACMR) and serves as its Chief Judge. The ACMR performs appellate review of courts-martial pursuant to article 66, Uniform Code of Military Justice (UCMJ), when the approved sentence includes death, a punitive discharge, or confinement for one year or more, and considers certain petitions for new trial pursuant to article 73, UCMJ.

The military magistrate program. b.
The United States Army Trial Judiciary, an element of the United States Army Judiciary, which provides full-time military trial judges to preside over general and special courts- martial.

c.

(2)
USALSA activities also include, but are not limited to:

a.
The United States Army Trial Defense Service (TDS), which provides defense legal services for Army personnel as authorized by law and regulation.

b.
~efenseAppellate Division (DAD), which provides defense legal services to military accused before the ACMR, the United States Court of Military Appeals (CMA), and the United States Supreme Court.

c.
Government Appellate Division (GAD), which represents the United States before the ACMR, the CMA, and, when requested by the United States Attorney General, the United States Supreme Court.

To maintain the independence of judicial and defense legal services, The Assistant Judge Advocate General for Civil Law and Litigation exercises technical supervision and operational control over DAD and TDS. The Assistant Judge Advocate General for Military Law and Operations exercises technical supervision and operational control over GAD.
b.
USARCS. USARCS administers the Army’s claims program. It supervises the investigation, processing, and settlement of claims against and on behalf of the United States, provides and supervises claims training, and formulates and implements claims policy.

c.
TJAGSA TJAGSA offers resident and nonresident courses of study for the professional legal training of the Army; conducts research in military legal matters and prepares military legal publications; conducts combat development activities; directs the recruitment, assignment, and training of Reserve component judge advocates; and manages the Army Law Library Service. The Commandant, TJAGSA, confers the degree of master of laws (LL.M.) in military law upon graduates of the Judge Advocate Officer Graduate Course; develops and conducts resident military legal and related instruction for personnel of the JAGC, selected foreign officers, and other officers and employees of the United States Government; and develops and provides nonresident and related instruction.

Section IV Legal Services Command
2-5. The Legal Services Command (LSC). The
LSC is a Table of Organization and Equipment
[TOE) organization. It is collocated with USALSA. Its mission is to provide defense and judicial legal services to combat, combat support,
and combat service support units to ensure mission accomplishment. The LSC is comprised
of:
Headquarters personnel. a.

b.
Military trial judges, who are attached to HHCs of corps and units echelons above corps (EAC) and provide judicial legal services on an area basis. These personnel also are assigned to the United States Army Trial Judiciary.

c.
Defense personnel, who are attached to HHCs of separate brigades, divisions, corps, and units at EAC and provide defense legal services to designated units or as otherwise directed. These personnel also are assigned to the United States Army Trial Defense Service.

d.
Legal noncommissioned officers and specialists.

Section V St& Judge Advocate (SJA) Sections
2-6. Staff Judge Advocate (SJA) Sections.
a. SJA sections are organic to units or installations commanded by a general court- martial convening authority. The SJA section provides all required legal services to the commander, subordinate commanders, staff, individual soldiers, and other authorized personnel. The Army may assign an SJA to a general officer in command even though the power to convene general courts-martial has been withheld or delegated to a subordinate commander. The SJA section of a combat, combat support, or combat service support unit normally is composed of an SJA, a deputy staff judge advocate (DSJA), chiefs of functional areas of the law, judge advocates, a legal administrator,
a chief legal noncommissioned officer (NCO), legal NCOs and specialists, and court reporters.
b. The SJA is the section’s senior judge advocate. The SJA is a member of the commander’s personal staff. Accordingly, the SJA communicates directly with the commander and is the commander’s personal legal advisor for all matters that affect the morale, good order, and discipline of the command. In addition, the SJA is a member of the commander’s special staff. The SJA, therefore, also provides legal services to the commander’s staff and serves under the chief of staff. The SJA coordinates with other staff members to provide responsive legal services throughout the organization. The SJA is the field representative of TJAG. The SJA:
(1)Provides legal advice to the commander, staff, subordinate commanders, soldiers, and other authorized persons on all matters involving military law (Department of Defense directives, Department of the Army regulations, and command regulations), domestic law (United States statutes, federal regulations, and state and local law), foreign law, status of forces agreements, and international law.
Provides trial counsel and coordinates (2)
Supervises the administration of military justice and other legal matters in the command.

(3)
Communicates directly with the commander on military justice matters.

(4)
Advises the convening authority on the appropriate disposition of charges before they are referred to trial by a general or special court- martial authorized to impose a bad-conduct discharge; reviews records of trial by general courts-martial, special courts-martial adjudging a bad-conduct discharge, and military commissions; and recommends to the convening authority appropriate action on courts-martial.

(5)

with appropriate authority for the services of defense counsel from the United States Army Trial Defense Service and military judges from the United States Army Trial Judiciary for general courts-martial and special courts-martial.

Furnishes legal assistance and advice to military personnel, their family members, and other authorized persons on personal legal problems and supervises the command’s legal assistance, tax assistance, and preventive law programs. Supervises military justice training and other legal training within the command. Reviews reports of investigating officers and boards for legal sufficiency and makes appropriate recommendations to the commander. Reviews appeals from punishments imposed under article 15, UCMJ, and makes recommendations to the reviewing commander. Prepares and processes correspondence concerning the imposition of nonjudicial punishment under article 15, UCMJ. Reviews records of trial by special and summary courts-martial for legal sufficiency, initiates appropriate corrective action when necessary, and serves as custodian of special and summary courts-martial trial records. Coordinates with appropriate authority for services of defense counsel at investigations conducted under article 32, UCMJ, and to accused or suspects held in custody. (6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)
Supervises and administers all matters concerning claims.

(14)
Prepares legal opinions and furnishes legal advice on foreign and international law matters and the applicability of United States laws in foreign countries.

(15) Supervises the conduct of tribunals under article V of the 1949 Geneva Conventions.
(16)
Furnishes legal advice to individuals, as requested, against whom commanders have asserted pecuniary liability in connection with reports of loss of government funds or the loss or destruction of or damage to government property.

(17)
Provides advice and assistance on all matters relating to acquisition.

(18)
Provides advice on legal aspects of military aid to civil authorities, disaster relief, civil defense, and antidrug operations.

(19)
Furnishes legal advice on military personnel matters, including mobilization, military status, pay, allowances, promotion, reduction, separation, authorized activities, appeals to administrative boards, and complaints under article 138, UCMJ.

(20)
Provides legal advice to the Armed Services Disciplinary Control Board.

(21)
Provides legal advice concerning the command of installations, activities of nonappropriated fund instrumentalities, and standards of conduct issues.

(22)
Maintains liaison with and provides assistance to United States attorneys and federal district courts in connection with litigation in which the Army is involved and criminal prosecutions in which the Army has an interest, including the Federal Felony Prosecution and the Federal Magistrate Court Programs for the disposition of offenses committed on military installations.

(23)
Maintains liaison with justice and prison officials in foreign countries, as required.

(24)
Provides legal advice, assistance, and counsel for management negotiation of union labor agreements, unfair labor practice hearings, and grievance arbitration.

(25)
Provides advice, representation, and

administrative support for labor and employment law matters including adverse action appeals to the Merit Systems Protection Board, equal employment opportunity discrimination complaints before the Army Civilian Appellate Review Agency and the Equal Employment Opportunity Commission, grievance arbitrations, and unfair labor practice complaints and negotiability disputes before the Federal Labor Relations Authority.
Acts for the SJA in the SJA’s absence. (26)
Provides advice and assistance on legal aspects of the Army Environmental Quality Program and on all applicable state, federal, and foreign environmental laws and regulations.

(27)
Assists in implementing and supervises mutual support training programs for JAGC Reserve component officers and JAGC Reserve units during annual training and inactive duty training.

(28)
Reviews contingency and operations plans and orders for legal suficiency and provides legal advice on law of war training.

(29)
Coordinates with the DCSPEWGl on assignment, promotion, transfer, and replacement of judge advocate officers, legal noncommissioned officers and specialists, and court reporters.

c.
The DSJA is the SJA section’s second most senior judge advocate and:

(1)

(2)
Administers legal services throughout the unit’s area of operations.

(3)
Supervises and trains subordinate legal personnel.

d.
The Chief, Administrative and Contract Law, supervises, assists, and trains legal personnel providing administrative and contract law services and is the primary provider of administrative and contract law legal services.

e.
The Chief, Claims, supervises, assists, and trains claims judge advocates and attorneys and support personnel providing claims services and is the primary provider of claims services.

f.
The Chief, Criminal Law, supervises, assists, and trains judge advocates and support personnel providing criminal law services. The Chief advises commanders on the disposition of offenses and preparation of charges, perfoms duties as trial counsel, and completes government appellate posttrial requirements.

g.
The Chief, International and Operational Law, supervises, assists, and trains legal personnel providing international and operational law legal services and is the primary provider of international and operational law legal services.

h.
The Chief, Legal Assistance, supervises, assists, and trains legal personnel providing legal assistance services and is the primary provider of legal assistance services. The chief also administers the command’s preventive law program, and oversees the command’s tax assistance program.

i.
Judge advocates are graduates of an American Bar Association accredited law school and are members of the bar in good standing of the highest court of a state of the United States, the District of Columbia, or a federal court. Judge advocates provide professional legal services as directed.

j.
The legal administrator, among other things:

(1)
Manages the overall military and civilian administrative functions of the SJA section.

(2)
Serves as the information management officer, directing all SJA section infomation management functions.

(3)
Serves as the chief paralegal administrator for all legal and administrative

support services of the SJA section.
The chief legal NCO, among other things: (4)
Develops and prepares reports pertaining to manpower staffing.

(5)
Develops fiscal requirements, executes program budget guidance, and authenticates funding obligations.

(6)
Implements Army Law Library Service policies.

(7)
Authenticates legal and administrative documents.

k.

(1)
Supervises and trains SJA section enlisted personnel.

(2)
Receives and secures records of special proceedings, highly sensitive materials, or otherwise specially handled documents or physical evidence.

(3)
Provides logistical support for each section.

(4)
Coordinates the assignment of installation legal specialists/NCOs and court reporters, and assists in supervising subordinate unit enlisted legal support personnel.

(5)
Inspects legal support activities of subordinate units and recommends ways to eliminate deficiencies or improve legal support operations.

(6)
Organizes, supervises, and conducts skil! !eve1 training of subordinate mh !ega! personnel.

1. Legal noncommissioned officers and specialists perform duties associated with criminal law and military justice activities, adverse administrative actions and board proceedings, claims investigations, legal assistance, legal and administrative research, maintenance of law libraries, and general legal administration.
m. Court reporters record courts-martial and administrative proceedings and prepare records of those proceedings as required by law or regulation.
Section VI Command Judge Advocate (CJA] Sections
2-7. Command Judge Advocate (CJA) sections.
a.
A CJA heads a legal section serving a commander who is not a general court-martial convening authority. The CJA is the commander’s personal legal advisor for all matters that affect the morale, good order, and discipline of the command and is a member of the commander’s special staff. The CJA’s relationship to the commander, subordinate commanders, and staff is similar to that of an SJA.

b.
Functions. The CJA provides legal services to the commander and staff on matters directly related to the unit’s mission. The SJA section of the host installation or the next senior command normally provides legal services such as legal assistance or claims. CJAs provide legal services in accordance with the policies of the commander and the SJA of the host installation or the next senior command.

Section VII Judge Advocate General Service Organkations
2-8. Judge Advocate General Service Organizations (JAGSO) are cellular TOE teams that provide legal services to nondivisional troops not otherwise provided organic legal support. Chapter Three describes them further.
Section VIII Legal NCOs and Specialists
2-9. Legal NCOs and specialists assigned to personnel administrative centers of brigades, groups, regiments, battalions, and squadrons provide legal and administrative support to the commander, subordinate commanders, and staff. They are the initial providers of legal services on the battlefield to battalion and company commanders. They provide preliminary assistance on legal matters and, as required, coordinate legal actions with the brigade legal NCO and SJA section. They:
Perform other legal duties as assigned. a.
Prepare court-martial charge sheets and confinement, convening, and promulgating orders.

b.
Record and prepare summarized records of trial for special courts-martial.

c.
Prepare records of trial for summary courts-martial.

d.
Prepare records of nonjudicial punishment.

e.
Record and prepare summarized proceedings of article 32(b), UCMJ, investigations.

f.
Prepare notifications of administrative separations.

g.
Prepare, process, and monitor administrative separation actions.

h.

CHAPTER 3
Judge Advocate General Senrice Organizations

Section I
General

3-1. General.
a.
Judge Advocate General Service Organizations (JAGSO) are legal service support teams that provide legal services to nondivisional troops not otherwise provided organic legal support. In addition, JAGSOs provide CONUS sustaining base support for mobilization and mobilization sustainment.

b.
Mission. JAGSOs provide combat, combat support, and combat service support commanders and soldiers professional and responsive legal services in all functional areas to ensure mission accomplishment.

c.
JAGS0 teams are an integral part of the Total Army. In keeping with AirLand Battle doctrine and the Total Army concept, JAGS0 teams maintain a high state of professional proficiency and military readiness. JAGS0 teams provide legal services to the Army worldwide across the operational continuum.

d.
Assignment. The Army assigns JAGS0 teams to theater armies, theater army area commands, corps, corps support commands, and other organizations as required.

e.
The gaining organization SJA is responsible for planning for the employment of JAGS0 team personnel and for preparing legal services annexes to operations plans so they reflect the proper use of all legal assets.

f.
JAGS0 teams, except military judge and court-martial defense teams, are under the technical supervision and administrative control of the SJA of the organization to which the JAGS0 team is assigned. All JAGS0 teams, except defense and military judge teams, function under and are responsible to the SJA and commander of the unit to which they are assigned. JAGS0 teams augment the SJA section or may work as a remote detachment. Defense

and military judge teams are under the technical supervision and control of the Chief, Trial Defense Service, and Chief, Trial Judiciary, respectively, to maintain their independence and impartiality.
g. TJAG is responsible for the technical supervision, training, and assignment of JAGS0 personnel.

Section II Types of JAGSOs
3-2. Eight types of JAGS0 teams exist, each with specific capabilities. The legal support organization’s (LSO) structure and functions resemble those of a division or corps SJA section. The remaining JAGS0 teams have limited capabilities. They may augment an LSO or perform as part of an existing SJA section or as a separate team assisting a specific headquarters.
a. The legal support organization (LSO):

Performs all trial counsel duties in The court-martial trial team: The intemational/operational law team: (1)
Provides legal services in all seven functional areas of the law.

(2)
Provides operational control and technical supervision over attached JAGS0 teams, when required, except for court-martial defense and military judge teams.

b.

(1)
Provides international and operational law legal services.

(2)
Investigates and reports on violations of the law of war.

c.

(1)
Under the direction of the SJA, advises the commander on matters related to the administration of military justice, including disposition of alleged violations of the UCMJ.

(2)

courts-martial.
The senior military judge team. Senior The military judge team. Military judges: The administrative/contract law team: Provides legal assistance services. The legal assistance/claims team: The court-martial defense team: (3)
Completes postaial processing of records of trial.

(4)
Serves as recorder before administrative boards.

(5)
Records courts-martial and administrative proceedings and prepares records of those proceedings.

d.

(1)
Performs all defense counsel duties in courts-martial.

(2)
Represents soldiers before administrative boards and other proceedings as required or authorized by law or regulation.

(3)
Acts as consulting counsel as required or authorized by law or regulation.

e.

(1)
Receives, investigates, and adjudicates claims for and against the United States.

(2)

f.

(1)
Performs all administrative law functions.

(2)
Provides advice and assistance on all aspects of the acquisition process.

g.

(1)
Preside at general and special courts- martial.

(2)
Perform magistrate and other judicial duties.

h.

military judges:
(1) Perform the same functions as military judges.
12) Provide technical supervision to military judges.
Section IU support
3-3. Required support.
a.
Upon mobilization, JAGS0 teams are dependent upon the unit to which assigned for all logistical support and administrative functions including, but not limited to, personnel, finance, communications, transportation, maintenance, and supply support.

b.
JAGS0 teams not on active duty are dependent upon the unit to which assigned (Army Reserve Command or Major United States Army Reserve Command) for all support and administrative functions including, but not limited to, maintenance, unit reporting requirements, common soldier skill training, and transportation.

Section IV Regional Law Center
34. The LSO may be organized as a regional law center (RLC).
a. Mission. The RLC provides legal services in support of mobilization and the land defense of the continental United States (CONUS). In particular, the RLC:
(1)
Provides legal services and assistance to United States Army legal offices, including the United States Army Reserve and National Guard and federal and state agencies affiliated with mobilization and the defense of CONUS.

(2)
Assists Continental United States Army (CONUSA) SJAs in premobilization planning and

coordinating use of legal assets within CONUSAs.

Assignment. Upon mobilization, one RLC will be assigned to each Continental United States Army/Joint Regional Defense Command. Advises on all legal aspects of the land defense of CONUS and military support to civil defense. Provides advice and assistance on acquisition matters and monitors streamlined acquisition procedures for possible fraud or abuse. Develops or revises Department of the Army civilian work rules, as required. Prosecutes condemnation proceedings involving private property necessary for the national defense. Assists in the reacquisition of federal property for installation expansion. Coordinates with state area regional commands and installations to provide responsive legal services to family members and other authorized personnel. Coordinates with mobilization stations to provide required legal services to expanded troop populations. (3)

(4)

(5)

(6)

(7)

(8)

(9)

b.
Judicial and Defense Legal Services. The RLC requires a senior military judge team and a court-martial defense team to perform military justice functions.

c.

-See Chapter 10.

CHAPTER 4
Objectives and Principles of Legal Operations

4-1. The United States Army may fight in a variety of places and situations, ranging from developed countries where it may oppose highly mechanized forces, to remote parts of the world where it may confront light, irregular units. Legal operations apply the AirLand Battle tenets of agility, initiative, depth, and synchronization and the combat service support sustainment imperatives of anticipation, integration, continuity, responsiveness, and improvisation to provide legal services when and where commanders need them. Legal sections and units must be rugged and flexible to properly support operations during any conflict on any battlefield.
This chapter covers the objectives and principles that establish the fundamental bases for legal operations. Objectives describe the purposes of legal operations. Principles guide the provision of responsive legal services across the operational continuum in any battlefield environment.
Section I Objectives and Principles
4-2. Objectives.
a.
Legal operations support the commander. Legal operations assist the commander in maintaining good order and discipline of the unit and the morale and welfare of the troops. Staff and command judge advocates are the commanders’ personal legal advisors on these matters. SJAs or CJAs communicate directly with the commander under article 6, UCMJ, on military justice matters. Legal operations support the commander in legally–and therefore effectively–exercising command and control over the unit.

b.
Legal operations support the organization. Legal operations increase unit readiness in peace and are a force enhancer during conflict. In peace, legal operations ensure the organization’s preparedness to mobilize, deploy, and fight. Before deployment, JAGC personnel train with

the troops; assist soldiers in resolving their personal legal problems; review contingency contracting plans and procedures; ensure that contingency and operations plans and orders comply with domestic and international law; review relevant treaties for issues affecting deployment and military operations overseas; review rules of engagement (ROE);provide required training on the law of war and ROES; and determine when waivers of peacetime legal restrictions should be requested and initiate appropriate requests for waivers. During conflict, JAGC personnel provide advice on lawful targets, weapons, stratagems and reprisals; the investigation and disposition of violations of the law of war; the treatment of enemy prisoners of war and civilian refugees; the treatment of foreign diplomats; civil affairs and nation assistance operations; the administration of military government in occupied territory; and claims, legal assistance, contingency contract, criminal, and administrative law matters that affect the mission.
c. Legal operations support the soldier. Legal operations maintain the soldier’s readiness, morale, and welfare by providing legal assistance and compensation through the claims process for the loss of, damage to, or destruction of personal property due to military service. Legal services, including judicial and defense legal services, protect the soldier’s rights as guaranteed by law.
The objectives of legal operations overlap. For example, assisting the soldier with personal legal problems helps the commander foster troop morale. The fair and efficient administration of military justice increases unit readiness by maintaining good order and discipline. The ultimate objectives of legal services are to support the commander and ready and support the unit to perform the command mission.
4-3. Principles. The principles that guide legal operations are the AirLand Battle tenets and the combat senrice support sustainment imperatives.
Section II AirLand Battle Tenets
4-4. Initiative. Initiative implies an offensive spirit in the conduct of all operations. SJAs and CJAs must act aggressively to provide legal services as required throughout the battlefield. To be effective, the SJA or CJA must know the mission, the commandeis intent and plan, troop placement and dispersion, the flow of the battle, and the enemy situation. Legal operations cannot be a step behind the rest of the force. JAGC personnel must be where the commander needs them, when he or she needs them. SJAs and CJAs must anticipate when operations will conflict with legal constraints and request appropriate waivers, recommend alternatives, or advise against illegal courses of action. When the commander is without political advisors, the SJA or CJA should be prepared to advise their commanders when courses of action are technically legal, but contrary to the political goals of the military campaign.

45.
Agility. Agility is the ability to think and act quickly and correctly. It is a prerequisite to seizing and holding the initiative. JAGC personnel must react quickly to changes on the battlefield to provide responsive legal services. They continuously must read the battle, decide quickly, and act without hesitation. Commanders, under great stress, face difficult and complex legal issues on targeting, treatment of enemy prisoners of war and civilians, allegations of war crimes, combat requisitions of private property, and unit discipline. JAGC personnel must respond rapidly, mentally and physically, to changing requirements. They must be able to move and communicate on the battlefield withom interruption tc perform their mission.

46.
Depth. Depth is the extension of legal operations in time and place. The JAGC must provide required legal services at all echelons of command as far forward as possible, regardless of the combat environment. SJAs and CJAs must have the time and resources to plan, arrange, and execute legal operations. For an SJA or CJA

section to have the depth required for the
AirLand Battlefield, all judge advocates must be
able to provide mission-essential legal services in
all functional areas of the law.
4-7. Synchronization. Synchronization is the
arrangement of legal activities in time, space, and
purpose to produce the most effective use of
legal resources. It means legal operations must
complement and support the overall mission. If
legal operations do not provide required legal
services when and where the commander needs
them, the risk is a less effective force. SJAs and
CJAs must coordinate their operations with other
units .and activities participating in the operation.
Coordination must be consistent with the
commandeis intent, plan, and mission. In the
end, the product of effective synchronization is
maximum economy of legal assets with every
legal resource used where and when it will make
the greatest contribution to success.

Section III
Combat Service Support Imperatives.

4-8.Anticipation. Anticipation means foreseeing
future operations and demands as accurately as
possible and developing legal operations flexible
enough to accommodate any likely operational or
tactical contingency. Legal operations must be
able to shift resources to meet changing
requirements. SJAs and CJAs must make
alternate plans for redistributing legal resources
as required.

49. Integration. Commanders must integrate legal operations plans with and conform them to tactical and operational plans. SJAs and CJAs must ensure that legal operations support the commandeis overall operation at every stage of its execution. JAs must provide legal services at the required place and time, usually as far forward as the tactical situation permits.
4-10. Continuity. Long interruptions of legal operations will diminish the effectiveness of the force. During operations, forces must receive timely legal services to sustain the unit’s good order, discipline, and morale. Interruptions of legal services to commanders and planners also risk violations of domestic and international law and damage to the mission and national interest. Combat operations will vary in intensity and even cease for a time. Legal operations are continuous; the demand for legal services merely shifts emphasis. For example, during conflict, commanders and planners will seek operational law advice. Operational inactivity usually coincides with reconstitution efforts as soldiers seek legal assistance and commanders process military justice actions.

4-11. Responsiveness. In crisis, or when fleeting opportunities arise, the commander cannot hesitate. Legal operations must have the agility to respond quickly to the commander’s requirements. Legal personnel must plan and train to respond on short notice to these demands.
4-12. Improvisation. No one can anticipate all contingencies. The unexpected requires improvisation. During emergencies, commanders and their SJAs and CJAs must suspend normal operating procedures, exploit opportunities, and accept risk. Less dramatic situations also may require improvised solutions, but high levels of risk are less acceptable.
CHAPTER 5
Legal Services in a Theater of Operations

Section I
General

5-1. Unified Commands.
a.
Unified commands (UC) are established by the Secretary of Defense with the advice of the Joint Chiefs of Staff (JCS) under the Department of Defense Reorganization Act of 1986. The designation of a unified combatant commander assures an effective integration of land, naval, and air forces; prevents the unnecessary duplication of effort and resources; and provides for efficient combined operations.

b.
The service identity of the unified combatant commander generally will be based upon the ultimate purpose for the establishment of the force–control of land, sea, or airspace. United States Central Command (USCENTCOM), United States Southern Command (USSOUTHCOM), and United States European Command (EUCOM) are examples of unified combatant commands that have land-oriented missions and frequently have an Army commander in chief (CINC).

c.
In a theater of operations within the area of responsibility of a CINC, the forces provided by the services are commanded by component commanders. In theater operations involving significant forces from two or more services–or in the case of coalition warfare, which includes alliance armed forces–the CINC for the theater generally will designate the combineujoint force commander.

5-2. Theater of Operations. A theater of operations is the area of land, sea, and air required to support and perform military operations against the enemy. United States forces deployed to the theater may range from a relatively small task force to a full array of large land, sea, and air forces. The theater is organized into a communications zone (COMMZ) and a combat zone (CZ).
a. The COMMZ is the rear part of a theater of operations (behind, but not necessarily contiguous -to, the CZ), which contains the lines of communications, establishments for supply and evacuation, and other agencies required for the immediate support and maintenance of the field forces.
b. The CZ is the territory forward of the corps rear boundary. It is the area required by tactical forces for the conduct of operations. The depth of the CZ depends on the forces involved, the nature of planned operations, the lines of communications, the terrain, and enemy capabilities. Normally, the CZ is divided into corps and division areas.
5-3. Legal Services. In a theater of operations legal services are provided by:
a.
Legal personnel in staff and command judge advocate sections at every echelon of command from separate brigade to theater army and unified command.

b.
Legal noncommissioned officers and specialists located at PACs of brigades, groups, regiments, battalions, and squadrons to provide legal and administrative support to the commander, subordinate commanders, and staff.

c.
The Legal Services Command, which provides judicial and defense legal services. Defense counsel are attached to divisions and echelons above division and military judges to corps and echelons above corps.

d.
Judge Advocate General Services Organizations (JAGSO), which normally augment theater armies, theater army area commands (TAACOM), corps, and corps support commands (COSCOM) and provide legal services to nondivisional troops not otherwise provided organic legal support.

Section I1 Legal Services in the Coxrununications Zone
54. Theater Army.
a. The theater army (TA) is normally the

Army service component command in a unified command. Third United States Army, Seventh United States Army, and Eighth United States Army are examples of theater armies. The TA has both operational and support responsibilities. The theater commander in chief assigns exact tasks, which may be exclusively operational missions, solely logistical tasks, or a combination of both.
b. Assigned forces. The TA commander is responsible to the unified commander in a theater for recommending how the commander should allocate and employ assigned United States Army forces. The TA commandeis support responsibilities include the requirements to organize, equip, train, and maintain Army forces in the theater. The TA has two types of support organizations with which to accomplish the mission:
(1)
Theater army area commands (TAACOM), which are area-oriented organizations with geographic responsibilities.

(2)
Mission-oriented organizations with functional responsibilities, such as a personnel command, an engineer command, or a medical command.

c.
Organization. The organization of a TA is not standard. It varies among theaters according to the size of the United States Army component and with MET-T (mission, enemy, terrain, troops, and time-available). Other levels of command also can perform TA functions. For example, a corps staff could perform the TA function if the commander in chief committed only a single corps to a contingency area. On the other hand, a larger separate staff may be necessary to handle the administrative, communications, logistical, personnel, intelligence, operations, and legal tasks of a large force deployed overseas. Liaison between a TA and other headquarters employing their forces must occur whenever theater armies release operational control of their units.

5-5. Theater Army Headquarters. The Army structures, organizes, and staffs a theater army headquarters to meet the missions and requirements of the theater in which it operates. The number of personnel required depends on the mission and tasks assigned, size of the Army component, scope of operations, availability of resources, and requirements of the commander. Normal staff activities include combat planning and operations, intelligence gathering and reporting, coordination with multinational and multiservice forces, and the logistics and administrative support of United States Army forces.
5-6. Theater Army Commander. The TA commander has responsibility for the COMMZ. The TA commander locates his headquarters and most of his combat support and combat service support elements in the COMMZ.
5-7. Unified Command Legal Services.
The unified command SJA: a.
Staff Judge Advocate. The SJA in a unified command with a land orientation generally will be designated from the Army.

b.

(1)
Is the senior judge advocate for organizations under the command of the CINC.

(2)
Is responsible for advising the CINC and staff on all legal matters pertaining to the unified command’s operations, including domestic and foreign law, JCS and DOD directives, and executive orders.

(3)
Assists in drafting and reviewing rules of engagement.

(4)
Coordinates with the Legal Advisor for the Chairman, JCS, and the service judge advocate generals on matters of legal policy affecting the national interest and the command’s mission.

5-8. Theater Army Legal Services.
a. Staff Judge Advocate. The TA SJA:

(1)
Coordinates with the unified command staff judge advocate regarding legal policies within the theater of operations.

(2)
Is the senior judge advocate for organizations under the command of the TA commander.

(3)
Is responsible for providing legal services to the Army component in a theater of operations.

(4)
Provides technical guidance to SJAs of subordinate organizations.

(5)
Controls and supervises JAGS0 teams attached to the theater army headquarters–except military judge and court-martial defense teams– and all legal personnel assigned to the headquarters of functional commands attached or assigned to the TA.

(6)
Directs the assignment of all judge advocates within the theater, except military judges and trial defense counsel.

(7)
Coordinates with the senior military judge and senior defense counsel attached to the TA for the provision of judicial and defense legal services within the TA area of operations.

(8)
Coordinates with The Judge Advocate General through the unified command staff judge advocate on matters of legal policy within the TA’s area of operations affecting the national interest and the mission.

(9)
Recommends and coordinates the appointment of general court-martial convening authorities necessary to administer military justice throughout the theater effectively.

b.
Judicial and Defense Legal Services. The senior military judge and senior defense counsel assigned to the Legal Services Command and

attached to the theater army supervise the provision of judicial and defense legal services in the TA area of operations.
5-9. Theater Army Area Command (TAACOM) and Area Support Groups (ASG). The TAACOM has three missions. First, it provides all combat service support, except movement control, to units located in or passing through its assigned area. This support includes the provision of legal services to soldiers and units without organic legal assets. Second, the TAACOM supports the corps with specified logistics support and coordinates area-related functions, such as populace control, with host nation elements. Third, the TAACOM is responsible for rear operations in its assigned area. The TAACOM accomplishes its support missions of supply, maintenance, and personnel services through area support groups (ASG). The number of ASGs in a theater of operations depends on the size of the COMMZ and the number of troops supported. Normally, one ASG is assigned to a TAACOM for every 15,000 to 30,000 troops receiving support in the COMMZ. The area an ASG supports depends on the density of military units and materiel requiring support, political boundaries, and identifiable terrain features.
5-10. TAACOM Legal Services.
a.
Staff Judge Advocate. The TAACOM SJA is responsible for legal services in the TAACOM area of operations, including soldiers and organizations without organic or assigned legal assets. The TAACOM SJA controls and supervises all JAGS0 teams attached to the TAACOM headquarters–except military judge and court- martial defense teams–and all legal personnel assigned to the headquarters of functional commands assigned or attached to the TAACOM. The SJA coordinates with the senior military judge and senior defense counsel assigned to the LSC and attached to the TAACOM for the provision of judicial and defense legal services in the TAACOM area of operations.

b.
Judicial and Defense Legal Services. The senior military judge and senior defense counsel

assigned to the LSC and attached to the TAACOM supervise the provision of judicial and defense legal services in the TAACOM area of operations.
5-11. ASG StafT Judge Advocate. The ASG SJA is responsible for providing legal services to the ASG. The SJA may require additional support from JAGSOs attached to the TAACOM during major reconstitution efforts.
Section III

Legal Services in the Combat Zone
a.
Corps are the largest tactical units in the United States Army and are the instruments by which higher echelons of command conduct maneuver at the operational level. The Army tailors corps for the theater and the mission. Once tailored, corps contain all the combat, combat support, and combat service support required to sustain operations for a considerable period.

b.
Organization. Corps consist of a headquarters that plans, directs, controls, and coordinates the corps operations and the mix of combat, combat support, and combat service support units. The theater Army commander may assign to the corps divisions of any type required by the theater and the mission. Corps possess support commands and are assigned combat and combat support organizations based on their needs for a specific operation. Nondivisional units commonly available to corps to weight their main effort and to perform special combat functions include armored cavalry regiments, field artillery brigades, engineer brigades, air defense artillery brigades, aviation brigades, and separate infantry or armored brigades. Military police brigades, civil affairs brigades, chemical brigades, and psychological operations battalions are combat support organizations often found in corps. Special operations forces .also may support corps combat

operations as required, particularly when a corps is conducting an independent operation. Corps combat service support organizations are the personnel group, the finance group, the corps support command, and JAGSOs.
c. The Corps Support Command (COSCOM). The COSCOM is the corps’ principal logistics organization. It provides supply, field services, transportation, maintenance, and medical support to the corps’ divisions and nondivisional units. The COSCOM is not a fmed organization and contains a mix of subordinate units as required by the size and configuration of the corps.
5-13. Corps Legal Services.
a. Corps SJA. The corps SJA:
(1)
Is responsible for legal services in the corps area of operations.

(2)
Provides technical guidance to SJAs of subordinate organizations.

(3)
Controls and supervises all JAGS0 teams attached to the corps headquarters except military judge and court-martial defense teams.

(4)
Controls and supervises all legal personnel assigned to the headquarters of functional commands attached or assigned to the

corps.
(5)
Coordinates with the senior military judge and senior defense counsel assigned to the LSC and attached to the corps for the provision of judicial and defense legal services.

(6)
Provides all legal services to corps units not serviced by a subordinate st& or command judge advocate.

(7)
Plans for and provides administrative coordination of all legal activities in the corps area, including the support of division assets temporarily removed to the corps area.

Organization. The corps area normally (8)
Coordinates and directs immediate replacements of key legal personnel and equipment lost in battle.

b.
Corps SJA section. The corps SJA section provides legal services to nondivisional troops within the corps area of operations.

c.
Location. During operations, SJA section personnel normally are located at the main and rear command posts (CP). One or more operational law judge advocates are located at the corps main CP to provide continuous mission- essential legal services–primarily operational law advice. The remaining SJA section person’nel will be in the rear CP.

d.
Corps Judicial and Defense Legal Services. The senior military judge and senior defense counsel assigned to the LSC and attached to the corps supervise the provision of judicial and defense legal services in the corps area of operations.

e.
COSCOM SJA. The COSCOM SJA is responsible for legal services that support the COSCOM mission and personnel, and controls and supervises all JAGS0 teams attached to the COSCOM headquarters except military judge and court-martial defense teams. Legal personnel assigned to corps support brigades provide legal services to their units and are supervised by the COSCOM SJA. The SJA coordinates with the senior military judge and senior defense counsel assigned to the LSC and attached to the COSCOM for the provision of judicial and defense legal services for the COSCOM. Absent military judges or defense counsel attached to the COSCOM, the COSCOM SJA will coordinate with the senior military judge and senior defense counsel at corps.

f.
COSCOM SJA Section. The COSCOM SJA section provides legal services to the COSCOM. During operations, SJA section personnel normally are located in the COSCOM main command post.

g.

contains subordinate commands with staff and command judge advocate sections. These include the COSCOM and support brigades. Staff and command judge advocate sections of brigade- sized organizations assigned or attached to the corps may be organized in a variety of configurations. The corps SJA may, at the direction of the corps commander, consolidate all legal assets in one or more SJA offices. For example, all corps legal activities may be consolidated in the corps SJA section or in both the corps and COSCOM SJA sections. Another alternative is the consolidation of most legal assets at one or two SJA sections to try courts- martial or dispose of claims more effectively, but to leave sufficient legal personnel at subordinate units to be readily available to advise those commands on time-sensitive legal problems. The key is flexibility. The most effective distribution of legal assets throughout the corps area of operations depends on the commandeis requirements, the number of general court- martial convening authorities, the geographic location of units, the total number of troops and legal personnel available, and anticipated tactical situations.
5-14. Division.
a. Divisions:

The division SJA is responsible for legal Are largely self-sustaining. (1)
Are fixed combined arms organizations capable of performing any tactical mission.

(2)

(3)
Are the basic units of maneuver at the tactical level.

(4)
Perform rnajor tactical operations for the corps.

b.
Infantry, light infantry, armored, mechanized infantry, airborne, and air assault divisions are all presently in the force structure. Each type of division has its own unique capabilities and limitations.

c.

services to the division. The division SJA coordinates with the corps SJA, as required.
d.
The division SJA section provides legal services to the division. During operations, SJA section personnel normally are located at the division main and rear CPs. The SJA and chief, international and operational law, are located at the main CP in the plans cell. The remaining SJA personnel are in the rear CP under the supervision of the DSJA.

e.
Judicial and Defense Legal Services. Normally, the senior military judge attached to the next higher echelon of command–usually the corps–will detail military judges to try courts- martial convened by division commanders. The division SJA coordinates with the senior defense counsel attached to the division for the provision of defense legal services. During operations military judges and defense counsel in the division area of operations will be in the division rear.

5-15. Separate Brigades.
a.
Separate Brigades. Except for their size, separate armored, infantry, light infantry, and mechanized infantry brigades share the same characteristics as similarly configured divisions. Separate maneuver brigades have organic cavalry, engineer, air defense, field artillery, military intelligence, military police, and combat service support units. The commander can use separate brigades to reinforce maneuver divisions, but they are capable of operating as independent units.

b.
Separate Brigade Staff Judge Advocate. The separate brigade SJA is responsible for providing legal services in the brigade area of operations and to brigade personnel. If the brigade commander is not a general court-martial convening authority, then the SJA of the organization that exercises general court-martial convening authority over the brigade will supervise the brigade SJA section. During operations, SJA section personnel normally are in

the main and rear CPs. The SJA is in the main CP with the remaining SJA personnel in the rear
CP.
c. The Legal Services Command provides judicial and defense legal services; the senior military judge and defense counsel attached to the next higher echelon of command–usually the corps–supervise these services.
Section lV

Additional Legal Services
5-16. As noted in paragraph 2.9, legal noncommissioned officers and specialists assigned to brigades, division artillery, division support commands, groups, regiments, battalions, squadrons and similar organizations without organic judge advocates often are initial providers of legal support to the organization commander and subordinate commanders. These legal personnel provide preliminary assistance on legal matters and, as required, coordinate legal actions with the appropriate SJA section. These legal services are integral to the commander’s ability to maintain good order and discipline and to provide for the morale and welfare of the command.
Legal Operations Across the Operational Continuum

Section I General
6-1. The Operational Continuum. The strategic environment within each theater consists of a variety of political, military, and economic conditions and a range of threats. United States forces must be able to perform equally wide- ranging operations. These operations form a continuum and occur within three general states: peacetime competition, conflict, and war.
a.
Peacetime competition. Peacetime competition is the state in which a nation employs political, economic, informational, and military measures to achieve national objectives. Nations pursue their own national interests, but with enough commonality of interests to avoid violence. Although primarily focused on deterring war, the United States employs the military instrument of national power in support of political, economic, and informational efforts to achieve its goals. When confrontations occur or tensions increase involving the clear threat or use of armed force, a potential point of transition to the state of conflict exists.

b.
Conflict. Conflict is an armed struggle or clash between organized parties within a nation or between nations to achieve limited political or military objectives. While regular forces may be involved, irregular forces frequently predominate. Conflict often is protracted, confined to a restricted geographic area, and constrained in weaponry and level of violence. In this state, military power in response to threats may be exercised in an indirect manner, while supportive of other elements of national power. Limited objectives may be achieved by the short, focused, and direct application of force. Military operations in conflict generally fall into the categories of counter-terrorism, the early stages of insurgency, counter-insurgency, and contingency operations.

c.
War. War is sustained use of armed force between nations or organized groups within a nation involving regular and irregular forces in a

series of connected battles and campaigns to achieve national objectives. War may be limited, with some self-imposed restraints on resources or objectives, or it may be general with the total resources of a nation or nations employed and the national survival of a belligerent at stake.
6-2. Legal operations.
a.
Legal operations must be capable of supporting the Army anywhere on the operational continuum and in any battlefield environment. Generally, legal personnel will provide total legal services as far forward as possible to all echelons of command. The scope of legal services, however, is flexible and dependent upon specific support requirements and theater limitations. The method of delivering legal services also must remain flexible to meet the demands of any situation.

b.
Regardless of the battlefield or the intensity of the conflict, legal personnel must remain organic and dedicated to the organization at all times.

Section I1 Equipment Requirements
6-3. Legal personnel require enhanced mobility, advanced communications, and automation equipment to provide responsive legal services across the operational continuum in accordance with the tenets of AirLand Battle.
64. Mobility. Legal personnel are dependent upon the units to which they are assigned or attached for transportation. Unit commanders must dedicate or otherwise provide sufficient vehicles to legal personnel. The number and type of vehicles will depend on the commandeis requirements for legal services. Mobility serves several distinct functions:
a. The SJA is responsible for the delivery of legal services throughout the area of operations. The SJA supervises and exercises administrative control over SJA section personnel. To administer legal services effectively, the SJA must know what, where, and when legal services are required and direct the appropriate employment of legal personnel. The SJA must be able to provide technical advice and guidance to subordinate judge advocates. Moreover, as the primary legal advisor to the commander, subordinate commanders, and staff, the SJA must have the mobility necessary to be when and where required.
b.
Judge advocates and legal NCOs and specialists provide legal services to lower echelons of command. Judge advocates require mobility to investigate allegations of war crimes, violations of the Uniform Code of Military Justice, and claims matters; provide legal assistance; or advise commanders on time- sensitive, mission-essential legal problems.

c.
Military judges provide judicial legal services on a geographic basis. They normally are attached to corps and echelons above corps. Usually, courts-martial will be conducted in the accused’s unit’s area of operations. Trying courts-martial as far forward as possible will minimize disruption of the unit, provide better availability of witnesses, and speed the administration of military justice. Military judges must have the mobility to preside over courts- martial and perform magistrate duties where and when needed.

d.
Defense counsel provide defense legal services to the unit to which they are attached or on a geographic basis. Defense counsel must have the mobility to interview and consult with widely scattered clients and witnesses, and represent their clients before courts-martial and adverse administrative proceedings. .

65. Communications. The AirLand Battlefield will be fluid, chaotic, and lethal. Mobility will be inhibited. The need for time-sensitive operational legal advice will be critical. Judge advocates must have access to communications that link them with the commander, subordinate commanders, the staff, and SJAs at higher and lower echelons.
6-6. Automation.
a.
The JAGC requires a dedicated automated system to provide responsive legal services to commanders at all levels. That system is the Legal Automation Army-Wide System (LAAWS) . The LAAWS integrates legal services into a standard system that provides automated legal services down to battalion level. The LAAWS provides for standardized software throughout the JAGC and includes modules for all functional areas of the law. The LAAWS supports automation functions such as word processing, files management, files transfer, and graphics. The LAAWS is hardware dependent on the family of Army Tactical Command and Control Systems (ATCCS) Common Hardware and Software (CHS). Operators will transfer stored data to and from host systems.

b.
The LAAWS processes, transmits, receives, and displays essential information in all functional areas of the law. SJA sections, military judges, and defense counsel use the LAAWS in support of combat, combat support, and combat service support units. The LAAWS is critical to the accuracy and responsiveness of legal services on the AirLand Battlefield.

Legal Operations in Low Intensity Conflict

Section I General
7-1. Introduction.
a.
Low intensity conflict (LIC) is a politico- military confrontation between contending states or groups below conventional war and above the routine, peaceful competition among states. It frequently involves protracted struggles of competing principles and ideologies. LIC ranges from subversion to the use of armed force. A nation wages it by a combination of means, employing political, economic, informational, and military instruments. Low intensity conflicts often are localized–generally in the Third World- -but feature regional and global security implications. As the number of forces, frequency of battles, and level of violence increases and is sustained over an extended period of time, and when an aggressor threatens the nation’s sovereignty, the conflict approaches the threshold of a state of war. Figure 7.1 depicts the operational continuum outlining where LIC falls within the spectrum.

b.
The United States Army likely will have to operate in LIC environments in the future. These operations are legally and politically sensitive. Legal support is critical to the success of these operations.

c.
LIC operations promote regional stability, maintain the cohesion and strength of United States alliances and cooperative agreements essential to maintaining access to important military facilities around the world, enhance the ability of United States security partners to deter and defend against aggression and instability, strengthen the struggling economies of Third World countries, and defend democratic values and institutions.

d.
The Army will conduct future LIC operations in one of two basic environments. One environment may contain an existing support structure of communications, air defense, logistical facilities, and ports. The other may be

a relatively undeveloped environment in which Army leaders will have to choose- between creating a support base or fighting with only external support. Security assistance personnel, special operations forces, and combat support (CS) and combat service support (CSS) elements usually will play major roles in LIC. The combat forces deployed most likely will be light forces. CSS elements actually may precede the combat force into an area of operations and may be the only forces deployed. Legal support must be flexible and responsive to these demands and will require leaders to anticipate and initiate the legal support needed.
Section I1 Operational Categories
7-2. Operational Categories of LIC. United States military operations in LIC fall into four broad categories: support for insurgency and counterinsurgency; combatting terrorism; peacekeeping operations; and peacetime contingency operations.
a. Support for insurgency and counterinsurgency. United States security interests may lie with an incumbent government or with an insurgency. An insurgency or counterinsurgency seeks to achieve different objectives. The objective in insurgency is to gain political control by mobilizing antigovernment elements from within the country. In counterinsurgency, the objective is counterrevolutionary mobilization to demonstrate the government’s legitimacy and stability and to maintain law and order. These operations include:
(1)
Security assistance.

(2)
Intelligence gathering operations.

(3)
Civil affairs and civil-military operations.

(4)
Psychological operations.

Figure 7.1
(5)
Population and resource control operations.

(6)
Combined training operations.

(7)
Humanitarian and civic assistance.

(8)
Logistical support operations.

(9)
Tactical operations.

(10)
Drug interdiction operations.

(1
1) Deception.

b.
Combatting Terrorism. The aim of combatting terrorism is to protect installations, units, and individuals from the threat of terrorism. Combatting terrorism includes both antiterrorism (defensive) and counterterrorism (offensive) actions throughout the spectrum of conflict. Combatting terrorism requires coordinated action before, during, and after terrorist actions.

c.
Peacekeeping Operations (PKO). PKOs are military operations that maintain peace already obtained through diplomatic efforts or that provide conditions of security that permit the search for stability and a political solution to either an international or internal conflict. A peacekeeping force supenrises and implements a negotiated truce to which belligerent parties have agreed. The force operates strictly within bounds of established rules of engagement. Normally, the parties to the truce will forbid the peacekeeping force from using force to accomplish its mission except for self-defense.

G.
Peacetime contingency operations PCCj. United States forces may be called upon to resolve situations that protect United States interests. The unifying feature of these actions is the rapid mobilization effort to focus on a particular problem. These operations often take place away from customary facilities and require deep penetration and temporary establishment of long lines of communication in a hostile environment. These operations include:

(1)
Intelligence missions.

(2)
Shows of force.

(3)
Noncombatant evacuation operations.

(4)
Support to United States civil authorities.

(5)
Raids.

(6)
Rescue missions, including evacuation of United States nationals.

(7)
Disaster relief.

(8)
Counternarcotic operations.

(9)
Other limited uses of force.

LIC operations simultaneously may involve two or more of these categories. Moreover, some operations fall into more than one of the categories described above. For example, security assistance operations may be equally effective for combatting terrorism or for waging a counterinsurgency. For a more detailed discussion of these categories see FM 100-20.
Section In Legal Operations in Support of LIC
7-3. United States law, foreign law, and international law tightly regulate military operations in LIC. Commanders at all echelons must have immediate access to operational law judge advocates or risk violating the law and frustrating the political goals of the operation. They must consult their legal advisors throughout the planning and execution process of all LIC operations. All personnel connected with military operations must understand that violations of legal constraints may adversely affect the overall accomplishment of United States policy objectives, even though the commander accomplishes the immediate military objective.
a. United States Law. All military operations must comply with United States law, whether in the form of a statute, treaty or other international agreement, executive order, regulation, or other directive from a branch or agency of the federal government. For example, the Uniform Code of Military Justice applies to questions of military justice; the Federal Acquisition Regulation, with the Defense and Service supplements and various statutes, govern the acquisition of supplies and services for United States forces; the Foreign Assistance Act and Arms Export Control Act govern the extent of security assistance given to a foreign country; Executive Order 12333,Department of Defense directives, and service regulations govern intelligence activities; and the Case Act and implementing directives govern the negotiation and conclusion of international agreements. Planners must consult their unit’s legal advisor and ensure that proposed courses of action comply with applicable law.

b. International Law. International law includes the law of war, international agreements, and customary international law. International agreements prescribe the rights, duties, powers, immunities, and privileges of nations. International agreements affect United States activities in LIC operations in matters such as:
The status of detained persons. Aircraft overflight and landing rights. (1)
The status of United States personnel in a foreign country.

(2)
Construction and operation of United States bases.

(3)

(4)
The processing of claims for damage to persons and property.

(5)

(6)
The relationship between opposing parties in internal conflicts.

Military planners must understand the importance of the principle of sovereignty in international relations and international law. In accordance with that principle, a host nation’s law will govern all aspects of operations canied out in a foreign country, except as modified by international agreement or customary international law. They further must understand that the only basis for the international use of force is collective or individual self-defense.
c. Host Nation Law. In LIC, the host nation’s national and local laws apply to United States forces in that country unless an international agreement provides otherwise. Host nation laws regulating employment of labor, currency exchange, procurement of goods and services, customs and taxes, criminal and civil liability, judicial procedures, control of the populace and resources, and emergency legislation may inhibit United States operations. The judge advocate -and the planner, therefore, must understand the law to assess its effect on the operation. If local law conflicts with the operation, other United States agencies may assist in negotiating agreements that will exempt United States forces or modify the application of host nation law to accommodate operational requirements.
7-4. Legal Support. LIC contingencies may require the deployment of a battalion or brigade- size task force (TE) with little or no notice. The TF usually will be comprised of division or corps elements. The appropriate commander and SJA will determine the legal support to be deployed. At a minimum, a judge advocate and the legal specialists assigned to any deploying battalions will deploy with the TF to provide mission- essential operational law legal services and, if necessary, civil affairs and contingency contracting support to the TF commander and staff. If the corps or division headquarters deploys, the SJA will deploy with the support required and permitted by the circumstances. If the entire division or corps deploys, usually the remainder of the SJA section and attached trial defense counsel also will deploy.
7-5. Preparing for deployment. The SJA and the commandeis staff will plan and coordinate legal support for the operation. The SJA will provide legal services to the commander, subordinate commanders, and staff on the broad range of legal issues associated with preparing for and deploying for combat. Specifically, the SJA will:
a.
Assist the commander in disposing of all criminal and adverse administrative actions pending or that arise during deployment.

b.
Participate in operations planning and review contingency and operations plans and orders for compliance with international and domestic law.

c.
Review the unit’s operations, contingency, and exercise plans, and identify the countries to which the unit may deploy. The SJA must determine what, if any, international agreements are in effect between the United States and potential host nations. The office of the staff judge advocate for the unified command with regional responsibility for the area of the LIC operation maintains a directory of relevant international agreements and should be contacted for assistance. The SJA then must gauge the effect of any pertinent agreements upon the deployment and subsequent military operations. If the operation will require new agreements, the SJA must raise the issue through command channels, and follow-up to ensure that the appropriate authority takes the necessary steps to initiate negotiations. Issues that should be addressed in international agreements with host nations include, but are not limited to:

(1)
Foreign criminal and civil jurisdiction. If no agreement exists addressing this issue, United States personnel will be subject to the exclusive criminal and civil jurisdiction of the host nation.

(2)
Host nation support. When a unit deploys overseas, the host nation may meet some of its logistical requirements. If so, the SJA should ensure that an appropriate arrangement– whether an international agreement, an

arrangement under the NATO Mutual Support Act, or a procurement conaact–specifies the materiel the host nation will provide and its cost. The command procurement personnel, with the assistance of the SJA, also should be prepared to procure supplies and services on the local economy.
(3)
Prepositioned material. If the unit plans to preposition material in the host nation, an international agreement should contain commitments from the host nation that:

a.
The United States may store property within its territory.

b.
United States forces shall have unimpaired access to the property.

c.
The United States may use or remove the property at any time for any purpose.

d The host nation’s will maintain the security of the property.
e. The property is for the exclusive use of the United States.
(4)
Claims. When United States forces deploy to a foreign country, claims may arise. An agreement should address the host nation’s and United States’ obligations to pay for damages caused by or to United States personnel or property such as:

a.
The host nation’s responsibility to receive, adjudicate, and pay claims of local inhabitants.

b.
Mutual waivers for injuries to government personnel and damage to military or public property.

c.
Host nation and United States cost sharing of claims adjudicated by the host nation.

(5)
Force security and use of deadly force. When United States forces deploy overseas to play a noncombat role, such as when they

participate in combined training exercises or a security assistance effort, the host nation is responsible for protecting United States personnel. The United States commander, however, is ultimately responsible for the unit’s safety. Therefore, an international agreement should include provisions regarding force security, such as the right of United States forces to maintain security on a United States installation and to assist in external security. The agreement should recognize that United States soldiers have the right to use deadly force in individual and unit self-defense.
d.
Assist in the preparation of and review rules of engagement (ROE). ROEs must be consistent with the operations plan; higher headquarters’ ROEs; national policy; and domestic, international, and applicable foreign law. Some operations may require sets of ROEs. Different missions and theaters of operations will require tailored ROEs.

e.
Conduct law of war training as required by law.

f.
Prepare soldiers for deployment by the organization’s preparation for overseas movement (POM) program. Some soldiers still will deploy without putting their personal affairs in order and others will encounter legal problems after they deploy. Judge advocates must, at a minimum, be prepared to provide powers of attorney and wills, assist in simple tax ‘matters, provide advice on the Soldiers’ and Sailors’ Civil Relief Act, counsel on dependent nonsupport, and address other basic issues.

7-6.Legal Services in a Theater of Operations in LIC.
The supporting command’s SJA section a.
The scope of legal services directly available to deployed units usually will be limited to operational law legal services and mission- essential legal services in other functional areas.

b.

will provide additional legal services as required; the deployed judge advocate will coordinate these services. Usually most, if not all, remaining SJA personnel will be at or near the supporting command’s headquarters. Legal personnel will provide most required !ega! services there, including trials by court-martial.
c. Flexibility is the key to the scope and method of delivering legal services in LIC.
7-7.Security Assistance (SA) Operations.
a.
United States policy recognizes that in LIC indirect rather than direct applications of United States military power are the most appropriate and cost effective ways to achieve national goals. Paragraph 7.2 lists the most likely military operations in LIC. The principal military instrument in LIC, however, is security assistance. The Army’s primary role in LIC is to support and facilitate the security assistance program. The United States will introduce combat forces into LIC situations only as a last resort and when it cannot otherwise adequately protect its vital national interests.

b.
Security assistance is the transfer of military and economic assistance by selling, granting, or loaning material or services to friendly foreign governments. The United States uses it in combination with political and informational initiatives. Appendix A, FM 100- 20, describes security assistance in LIC in detail.

c.
Congress maintains an intense interest in the security assistance process and exercises considerable control over security assistance resources. Accordingly, the various requirements and restrictions applicable to United States security assistance programs are subject to specific congressional authorization, appropriation, and oversight. This, in turn, results in periodic changes to security assistance programs. Commanders must coordinate with their judge advocate when implementing or participating in security assistance programs to ensure compliance with current, sensitive

legislative and regulatory requirements and interpretations of the law. This coordination will reduce substantially both legal and political difficulties and the possibility of adverse congressional reaction to perceived abuses of current security assistance and arms transfer programs. Authorization and limitations of security assistance generally are codified in titles 10 and 22 of the United States Code, with other authorities in titles 31 and 50 and the annual appropriations acts.
CHAPTER 8
Legal Operations in War

Section I General
81.
War. Mid- and high-intensity battlefields will be chaotic, intense, and highly destructive. They probably will extend across a wider space of air, land, and sea than previously experienced and will require skillful coordination with joint United States or combined forces. The battlefield most likely will be nonlinear and extremely fluid. The intermingling of opposing forces is almost inevitable. Highly lethal weapons systems will complement rapid movement of forces throughout the battlefield. Enhanced target acquisition capabilities and the ability to destroy targets more accurately and consistently from greater distances will increase the range and scope of the battle. The possibility of nuclear, chemical, or biological warfare will be real. Providing legal services on this battlefield will be a challenge that judge advocates must meet.

82.
As in LIC, United States, foreign, and international law affect military operations in war. In war, military force is a state’s primary means to achieve victory. Yet, limitations on the use of force exist. Law and national policy regulate what, when, where, why, and how commanders may employ weapons, even in the most intense conflicts. Commanders and their staffs must know the extent of these limits, not only to follow them, but to ensure that additional perceived limits do not become artificial constraints.

83.
Preparing for deployment. The Army will fight in one of two basic environments. One may be an anticipated theater with an existing support structure of communications, air defense, logistics facilities, and ports. The other may be a relatively undeveloped theater in which Army leaders within a joint and combined context will have to choose between creating a support base in the theater or fighting with primarily external support. Personnel mobilization of some sort also is likely in war. All of these -factors affect how legal personnel plan for deployment. In general, however, the SJA and the commander’s

staff will plan and coordinate legal support for
the operation much as they do for LIC.
8-4. General. Legal personnel will provide legal
services as far forward as possible and at all
echelons of command. The full scope of legal services will be provided when and where required by the commander. At the height of conflict, the demand for legal services will not be limited to operational law legal issues. Some judge advocates will be in the tactical or main command posts to provide mission-essential, time-sensitive legal services. Most remaining legal personnel will be temporarily in the unit’s rear area of operations. When the battlefield stabilizes and as the conflict’s intensity lessens, commanders will bring legal personnel forward incrementally or as a whole.
Section I1 Unified Command Legal Operations
85. General. The SJA for the unified command CINC has overall responsibility for legal services in the theater of operations. The unified command SJA will supervise and coordinate with subordinate component command SJAs to maximize the use of legal assets and enhance the quality of legal services in the theater.
8-6. Policy. The CINC, with the advice of the SJA, will establish policy for legal operations throughout the theater. This policy should address, for example, peacetime and hostile rules of engagement for land, naval, and air force operations in the theater and the legal relationships of United States and allied forces to the host nation.
87. Legal Services.
a.
The unified command SJA section will be located with and supported by the CINC.

b.
The SJAs of the subordinate component commands are responsible for providing legal services within their assigned area of operation within the theater.

c. The CINC will direct the execution of operation plans (OPLANS) and operation orders (OPORDS) by the joint/combined forces in the theater. The unified command SJA will:
(1)
Supervise international and operational law activities, including legal review of OPLANS, OPORDS, foreign military assistance, and procurement actions; and draft, interpret, and implement agreements regarding status of forces and base and staging rights.

(2)
Review and advise the CINC on the law of war; employment of special weapons; legitimate military targets; treatment and disposition of EPWs, civilian internees, and other captive or detained persons; and investigation and prosecution of war crimes.

(3)
Advise the CINC and participate in negotiation, interpretation, and filing of international agreements and treaties.

(4)
Provide advice on civil affairs plans, policies, and operations, including the establishment and conduct of a military government, military commissions, and provost courts in occupied territories, and the development of associated rules of procedure.

(5)
Supervise the establishment and operation of the claims service in the theater of operation.

Section I11 Theater Army Legal Operations
8-8. General. In coordination with the unified command SJA, the theater army (TA) SJA is responsible for providing legal services throughout the theater of operations. To facilitate the TA SJA’s technical supervision of subordinate SJAs, the TA SJA, at the direction of the TA commander, will designate one or more SJAs of large organizations within the theater to advise and direct the activities of staff and command judge advocates of smaller organizations that otherwise would be directly subordinate to the theater command. The TA commander may consolidate the resources of the staff and command judge advocate sections of subordinate commands.
89. Policy. The theater army commander, after consulting with the TA SJA, will set policy for legal operations throughout the theater. The policy will address, for example, the investigation of alleged war crimes, processing of claims, and situs of trials by court-martial.
810. Legal services.
a.
TA SJA section personnel will be located with and supported by the theater commander.

b.
The SJAs of large support organizations, such as theater army area commands, area support groups, and personnel commands, will supervise the provision of most legal services within the theater area. SJA sections will satisfy most of the legal requirements generated in the COMMZ, such as military justice, legal assistance, and administrative and contract law issues.

c.
The theater army commander will face urgent and critical situations throughout all planning and execution phases of the operation. The TA SJA:

Claims. Provides operational law advice as required. (1)

(2)
Establishes, in coordination with and with the approval of the unified commandeis SJA, theater policy for reporting and investigating war crimes; receives and disposes of reports of war crimes; and, when required, directs investigations of reported war crimes using judge advocates in the theater.

d.
The TA SJA provides legal services to the theater acquisition activity and staff members charged with contracting responsibilities.

e.

(1)
When authorized by the unified commander’s SJA, the TA SJA controls the

command claims service, establishes foreign claims commissions, establishes policy for all claims matters within the theater, acts as appellate authority for claims matters, and advises the TA commander on claims matters. Note, however, that only DOD can designate single-service claims responsibility for an area and that a command claims service can only be established upon designation by The Judge Advocate General.
(2) Any existing United States-host nation agreement concerning the status of United States forces should be examined for provisions concerning the processing and payment of claims against the United States by foreign inhabitants and for waiver provisions. Many of these agreements require that claims be submitted to, processed by, and paid by the host nation. If no such provision exists, United States military forces may settle claims under the Foreign Claims Act for property damage, personal injury, or death of foreign inhabitants caused by our forces. The Act does not require that our forces be acting within the scope of their official military duties at the time they caused the injury giving rise to the claim. It does, however, prohibit payment for claims resulting directly or indirectly from the activities of our forces in combat or from enemy action.
Section N Corps Legal Operations
811. General. The corps is an active tactical headquarters, as well as an extensive base of combat support and combat service support. Accordingly, its legal services requirements range from the immediate needs of the corps commander and staff for legal advice on operational law, military justice, and a variety of policy questions, to the delivery of the full spectrum of legal services to the large number of units and personnel in the corps area. The corps area will contain numerous separate court-martial jurisdictions and staff and command judge advocate sections. The corps SJA is responsible for coordinating these activities to provide legal services most efficiently and effectively throughout the corps area.
812. Legal services.
a.
Miiitary justice. Commanders shouid dispose of violations of the Uniform Code of Military Justice as soon as possible to maintain discipline and to assure witness availability. Normally, division and separate brigade commanders and their subordinate commanders will convene courts-martial to try their troops. The corps or higher commander, however, may withhold jurisdiction and exercise convening authority if the situation so dictates. General and special courts-martial, including those of divisional troops, probably will be conducted in the corps area, but circumstances will dictate place and time.

b.
Operational and international law. The corps is not only a tactical headquarters; it may constitute the highest level headquarters in the area of operations. Mission-essential operational law legal advice must be available immediately to the commander and staff.

c.
Claims. The corps will receive the bulk of its claims from corps support units and other organizations, including divisions, that cannot dispose of the claims themselves. Foreign claims commissions may be appointed in the corps area to address claims arising from noncombat activities of the Army that allegedly cause death or injury to foreign nationals and their property.

d.
Administrative law. The greater the conflict’s intensity, the greater the likelihood that most administrative law matters–such as military personnel actions, policy questions, and security issues–will be addressed at corps or above.

e.
Contract law. Local procurement of goods and services, particularly in areas not supportable by existing supply or service units, can be critical to the mission’s success or failure. This is especially important where a contingency

corps or a corps slice is operating. Judge advocates will be involved extensively in the contracting process.
f. Legal assistance. Judge advocates will provide legal assistance as required as far forward as the operational situation allows. In the corps area, legal assistance will be a major component of reconstitution efforts.
Seetion v Division Legal Operations
813.
General. The division is the largest Army fixed organization that fights as a tactical unit. It is largely self-sustaining. The division’s legal requirements cover all functional areas of the law. The division SJA can provide the full range of legal services if military judges and defense counsel are available to support military justice actions such as courts-martial. One principle is inviolate: The division commander must have legal advice available at all times. The commander directs–upon the advice of the SJA– the place, time, and degree of the delivery of legal services.

814.
Legal services.

a. During the initial development phase of war, the division will be engaged in heavy combat. The division’s tactical units will be moving rapidly. The command and control and division rear support elements frequently will change location. During this phase, the division commander probably will need only a small legal section located with the principal staff element to provide critical, mission-essential legal advice. One or two operational law judge advocates will be in the main or tacticai command post. The SJA will be available to the commander at all times. Remaining legal personnel, including judicial or defense personnel in the division area, will be at the division rear command post or in the division support area. If the SJA is unavailable, the deputy staff judge advocate or the next most senior member of the SJA section will exercise technical supervision over legal personnel in the immediate area.
b.
As the theater stabilizes, the conflict lessens, and reconstitution begins–or the division prepares for another phase of conflict–the division commander must address legal problems held up by combat. During stabilization and lodgement, JAGC personnel will provide the full range of legal services such as the investigation of war crimes; disposition of all or most violations of the UCMJ, including trials by courts- martial; investigation and payment of claims; legal assistance to soldiers; legal advice to civil affairs operations; disposition of captured property; and procurement of locally available goods and services.

c.
Battalion and brigade legal NCOs and specialists, located in the organization’s S1 section, will play a critical role. They are the front line providers of legal services to those organizations. They will gather and preserve information related to legal matters that must wait until the fighting subsides. They will coordinate with, and receive technical advice and guidance from, the division SJA section.

Section VI Separate Brigade Legal Operations
815. General.
a. Legal personnel, including judge advocates, are organic to separate brigades and equivalent units authorized to convene general courts-martial. These units fit into two categories:
(1)
Combat brigades that operate as separate tactical units under the operational control of corps or higher. Commanders of these units are general court-martial convening authorities, unless higher authority has withheld this authority. The senior judge advocate is the unit’s staff judge advocate.

(2)
Combat support brigades and combat senrice support units located within theater and corps support areas. Commanders of these units

usually are not general court-martial convening authorities. The senior judge advocate is the organization’s command judge advocate.
816. Legal Services.
a.
Brigade staff judge advocate sections deliver legal services in all functional areas when supplemented by defense counsel and a military judge. The next higher organization may provide additional legal resources as required.

b.
Brigade command judge advocate sections provide legal services on matters that affect the mission. The SJA section of the next senior command provides additional legal services.

817. Operations.
a.
Support brigades. A large number of combat support and combat service support units will be within the theater and corps areas. Unjts in these areas will require extensive legal services. Much of the operational activity of units headquartered in support areas will occur forward of these support areas. The appropriate SJA will coordinate the provision of legal services. See paragraph 8.5.

b.
Separate tactical brigade operations may occur anywhere in the theater. Their legal operations will resemble a division’s legal operations.

Section VII Rear Operations
818. Rear Operations. Just as we plan to fight in the enemy’s rear area, so the enemy plans to fight in ours. Operations against threat forces in our rear area will be important. Normally, SJA section personnel will be with CSS units in a base cluster for self-defense and mutual support purposes. Legal personnel must be trained in active and passive measures to counter threat efforts. Refer to EM 19-14 for more detail.
CHAPTER 9
Legal Operations in Special Operations

section I General
9-1. Special operations forces perform missions across the operational continuum. Specially trained, equipped, and organized Department of Defense (DOD) forces conduct special operations (SO) against strategic or tactical targets in pursuit of military, political, economic, or psychological objectives. These forces may conduct special operations in peace or during hostilities. They may support conventional operations, or be employed independently when the use of conventional forces is either inappropriate or infeasible.
9-2. Special operations activities include:
Search and rescue. Humanitarian assistance. Counterterrorism. Psychological operations. Civil affairs. Foreign internal defense. Unconventional warfare. Strategic reconnaissance. Direct action. a.

b.

c.

d.

e.

f.

g.

h.

i.

j.
Other activities as specified by the President or the Secretary of Defense.

section I1 Missions
9-3. Legal Support.
a. Special operations missions are legally and politically sensitive, particularly in a peacetime or LIC environment. The commander must consider not only traditional law of war requirements on the operation, but also the requirements of domestic United States law–such as security assistance and intelligence statutes– and international law–such as mutual defense treaties and host nation support agreements. , Proper resolution of legal issues raised by the mission is critical to success.
All judge advocates must know the business of their clients. This is especially critical in SO. Judge advocates assigned to SOF not only must know the applicable law, but also must have a working knowledge of the force structure, missions, doctrine, and tactics of the SOF. This knowledge comes from prior service in SO units, SO training, and working closely with the unit commanders and staff. b.
Army special operations forces (SOF) receive operational law support from the SJA, United States Army Special Forces Command and the SJA, United States Army Civil Affairs and Psychological Operations Command. Additionally, a judge advocate is required by, and assigned to, each special forces group; psychological operations group; special operations aviation regiment; ranger regiment; and civil affairs command, brigade, and battalion. These judge advocates provide responsive legal advice to the commander as required.

c.

Section 111 Duties of Judge Advocates
94. Duties of the SO Judge Advocate.
a.
A JA assigned to a s6 unit has many of the same responsibilities as JAs in other units. For example, he or she must provide legal assistance, assist the commander in administering military justice, and participate in administrative separation proceedings. He or she must establish a support agreement between the SO unit and the installation SJA’s office so the command’s legal actions are processed on time.

b.
Advising the commander and his staff. The SO JA’s principal function is to provide legal

services to the commander and staff. The SO JA must perform the predeployrnent responsibilities outlined in paragraph 7.5. The SO judge advocate must attend planning sessions for all operations, including exercises; review all operations, contingency, and exercise plans and orders for compliance with domestic, foreign, and international law and applicable policy and regulations; and be available to provide legal services during military operations.
c. All SO soldiers must receive law of war training commensurate with their duties and responsibilities. SO judge advocates will provide training that not only addresses conventional law of war issues but also addresses issues unique to SO.
9-5. Judge advocates assigned to special
operations forces may deploy, with their units. The units may conduct these missions deep in
enemy territory where access to other legal resources is nonexistent. Special operations judge advocates always must be readily available
to the commander.
CHAPTER 10
Mobilization and the Land Defense of CONUS

Section I Mobilization
10-1. Mobilization is the act of assembling and organizing national resources to support national objectives in time of war or other national emergency. Mobilization may include:
a.
Expansion of the military forces.

b.
Apportionment of national manpower and skills to meet the needs of the military and an expanding war economy.

c.
Expansion of military infrastructure and increased use of national infrastructure.

d.
Expansion of industrial and agricultural production and increased use of foreign sources.

e.
Expansion of the supply of raw materials and increased use of foreign resources.

10-2. Military mobilization converts an increased share of national resources to military power. This includes activating all or part of the Reserve component, as well as assembling and organizing personnel, supplies, and materiel. Accordingly, the military can use military mobilization as a strategic tool to meet the needs of war; a political and psychological weapon to signal nationalinterest and resolve in world events; or an instrument of deterrence.
10-3. Five phases of military mobilization exist:

The alert phase begins when a unit receives notice or warning through command channels of a pending order to active duty and ends when the unit enters active federal service. The preparatory phase occurs during peacetime and includes mobilization planning and training. a.

b.

c.
The mobilization at home station begins with a unit’s entry on to active federal service (activation) and ends with the unit’s departure

for its mobilization station.
d.
The movement phase covers the departure from the home station to arrival at the mobilization station.

e.
The operational readiness phase begins upon a unit’s arrival at the mobilization station. The unit attains readiness in the shortest time possible. The phase is complete when the Army declares the unit ready for deployment.

Section Il Land Defense of CONUS and Military Support to Civil Defense
10-4. The land defense of CONUS (LDC) is the conduct of operations to protect military facilities and key assets within the continental United States to ensure the continued ability of the nation to mobilize, deploy, and sustain military forces. LDC includes the Key Asset Protection Program (KAPP), a Department of Defense @OD) program designed to identify key assets and plan for their protection. Responsibility for protecting key assets, however, rests primarily with the civilian sector and with local, state, and federal law enforcement agencies. Military Support to Civil Defense (MSCD) is comprised of those military activities and measures taken by DOD components to assist civilian government agencies or the population in planning preparedness measures for civil defense, in the implementation of civil defense plans, or in the emergency response to civil defense requirements.
Section III Responsibilities
10-5. Authorities.
a.
The National Command Authority (NCA) directs, through the Chairman of the Joint Chiefs of Staff, LDC execution and the assignment of forces to conduct LDC.

b.
The Commander in Chief, Forces Command (CINCFOR), is the DOD executive

agent for LDC. Accordingly, CINCFOR is responsible to the NCA, through the Chairman, Joint Chiefs of Staff, for planning and executing LDC. Additionally, CINCFOR is responsible for the mobilization of United States Army elements within CONUS and their subsequent deployment.
c.
The Federal Emergency Management Agency (FEMA) coordinates federal, state, and local resources on issues of national security emergency preparedness, including mobilization preparedness, civil defense, and continuity of government.

d.
The Department of Justice (DOJ) provides CINCFOR with intelligence information on sabotage, espionage, terrorism, and subversion during execution of LDC. DOJ coordinates Federal Bureau of Investigation (FBI) activities related to LDC with CINCFOR.

e.
Joint regional defense commands (JRDCs) evolve from the Continental United States Armies (CONUSAS) upon execution of LDC. JRDC/CONUSAs are directly subordinate to CINCFOR. JRDC/CONUSAs are responsible for all LDC planning and implementation within their designated multistate geographic areas, including the further assignment of allocated combat forces. JRDC/CONUSAs are also responsible, through their subordinate mobilization stations, for mobilization and deployment activities of United States Army forces in the area.

f.
Joint state area commands (JSACs) are federalized National Guard state area commands (STARCs). JSAC/STARCs are directly subordinate to their geographically related JRDC/CONUSA. JSAC/STARCs are responsible for all LDC planning and implementation within their respective states. JSAC/STARCs coordinate with local and state authorities. JSAC/STARCs assume operational control of combat forces assigned from the JRDCs for LDC purposes.

g.
Army major commands (MACOM) support CINCFOR and JRDC/CONUSAs in the planning

and execution of LDC. MACOM legal assets will assist with LDC legal missions.
h.
Departments of the Navy and Air Force prepare LDC supporting plans.

i.
The JRDCs operationally conwoi FORSCOM mobilization stations (mobstations). The primary responsibilities of both FORSCOM mobstations and mobstations belonging to other MACOMs include preparation and execution of mobilization, training base expansion, and deployment operations. Mobstations are also responsible for support to CONUS sustainment operations, including the land defense of CONUS.

Section IV Legal Operations in Support of Mobilization and LDC/MSCD
10-6. Legal services during mobilization and LDC. Commanders and their SJAs will position legal personnel throughout their area of responsibility to provide responsive legal services when and where needed. Mobilization and the LDC will strain legal resources. SJAs at all levels must retain the maximum flexibility possible to perform their mission. This means controlling legal resources, knowing the mission and the commander’s intent, and applying the tenets and imperatives outlined in Chapter 4.
1@7. Legal support will be provided by:
a.
Legal personnel on mobilization Tables of Distribution and Allowances.

b.
Judge Advocate General Service Organizations. Each JRDC/CONUSA will receive, upon mobilization, a regional law center (RLC) and a military judge and defense counsel team.

-See
Chapter 3. The JRDC/CONUSA SJA may detail RLC personnel to subordinate units as needed.

c.
Legal personnel assigned to JRDC/CONUSAs and JSAC/STARCs.

d.
Legal personnel assigned to late deploying TOE forces assigned a mobilization or an LDC security mission.

e.
Individual mobilization augmentees (IMAs), individual ready reservists (IRRs), and retired reservists subject to mobilization. Coordination for the activation of these personnel should be effected through the Army Reserve Personnel Center (ARPERCEN) .

10-8. Mobilization and LDCmSCD will generate unique legal issues and problems. Some of the most important include:
a.
Training bases will expand as units mobilize and deploy. Expansion will require extensive legal resources to support real estate acquisition and expanded contracting operations.

b.
Emergency and wartime legislation and presidential executive orders either will be promulgated or triggered. This may affect much of the commander’s authority and responsibilities including the power to seize private property for military purposes; contract for emergency facilities, goods, and services; and prevent disclosure of sensitive military information by the media. It also will affect the relative authority and power of federal, state, and local agencies with which the commander deals. For example, LDC may give rise to the issue of who is in charge of operations surrounding a key asset when military assistance is requested and provided.

c.
Soldiers and their families will require responsive–sometimes immediate–legal assistance for their personal affairs. Moreover, the current Soldiers’ and Sailors’ Civil Relief Act–enacted decades ago to address World War I1 housing, employment, tax, and consumer relief problems–may not protect many of today’s activated reservists adequately.

d.
Legal personnel provide claims and legal assistance services to evacuees from OCONUS. The majority of family members will receive support at family assistance centers under the

command of the JSAC commander. Legal services also will be available at some mobilization stations.
10-9. Judge advocate support to LDC forces. LDC forces will be widely dispersed and thinly spread. To counter these problems, legal personnel should provide legal support to LDC forces as follows:
a. Operational law. Legal assets organic to deployed LDC forces or within the joint state area command (JSAC), will be insufficient to assign judge advocates to each individual key asset site.
(1)
Predeployment. Judge advocates organic to the LDC force will provide advice to LDC force commanders on the law affecting LDC operations and, as needed, train soldiers on rules of engagement and the use of deadly force. When LDC forces are allocated to the JRDC, the JRDC SJA will direct organic judge advocates or the JSAC SJA to review the initial defense plans for each site in the JRDC. Review must include rules of engagement; relationships with other state, local, and federal representatives; and intelligence collection activities.

(2)
Postdeployment. Once LDC forces are allocated to specific key assets, a judge advocate from the JSAC should be tasked as the operational law point of contact (POC) and maintain telephonic and radio contact with commanders at the key asset. The JSAC operational law POC will be the primary operational law advisor to all LDC forces within the JSAC area of operations.

b.
Legal Assistance. Soldiers in CONUS will receive legal assistance from the host installation or organic JAs until the soldiers are placed under the operational control of a JSAC. The nearest family assistance center then will provide legal assistance.

c.
Criminal law. Before deployment, LDC forces will process criminal law matters through their chains of command. If the unit commander

is not a general court-martial convening authority (GCMCA), but recommends trial by general court-martial, then the command will forward the case to the installation or geographic GCMCk
-See
ARs 5-8 and 5-9. After deployment, orders transferring operational controi to the JSAC also will transfer military justice responsibility to the JSAC general court-martial convening authority. Criminal law matters will be transmitted from the LDC element under the operational control of a JSAC directly to the JSAC SJA.

d.
Claims. Area claims offices process peacetime claims within CONUS. These offices, generally collocated with existing active component GCMCAs, will continue to function during LDC operations and handle claims generated in connection with LDC operations. The JSAC SJA section and family assistance centers also will have a limited ability to handle claims.

e.
Administrative law. Before deployment, LDC forces will receive administrative law advice from organic JAs. After deployment, the organic JAs will continue to advise on matters concerning unit administration, internal organization, and unit training. Commanders, however, should refer all other matters to the JSAC SJA.

f.
Contract law. Because contingencies can occur in areas not supportable by existing supply or service units, contracting must be used. Contingency contracting can be an effective force multiplier of combat service support for LDC forces. Judge advocates will provide advice on the acquisition of goods and services for these forces.

CHAPTER 11
Legal Aspects of Civil Affairs Operations

Seetion I General
11-1. Introduction. Civil affairs (CA) operations are politically and legally sensitive because they
involve the interrelationship between the United States military forces and civilians in the area of operations. Domestic, international, and foreign law regulate and influence CA operations.
Commanders and CA personnel must have ready
access to legal personnel for mission-essential legal services. Violations of the law or local moral standards by United States military personnel risk alienating the local populace and jeopardizing the public support required for United States military and political objectives.
11-2. Mission. CA operations address the relationship between military forces, civil authorities, and the population of a friendly or occupied country. CA operations concern the effect civilians have on military operations and the economic, social, and political effect military operations have on civilians. A major CA mission is to mobilize civilian support for United States military operations and political objectives in war and peace. CA operations:
a.
Support the commander in the conduct of military operations.

b.
Support the commander in meeting legal obligations and moral standards regarding the local’ populace.

c.
Further the national and international policies of the United States.

11-3. CA operations are coordinated military activities that influence, develop, or control indigenous infrastructures in operational areas. CA operations involve conventional and special operations (e.g., foreign internal defense and unconventional warfare) or may be pursued in support of United States country teams. They may include United States, allied, and indigenous security forces; civil authorities; nongovernment agencies; and the local populace. CA operations include:
a.
Mobilizing civilian support for United States military and political objectives.

b.
Preventing civilian interference with the mission.

c.
Facilitating host nation support and establishing liaison with civilian authorities.

d.
Supplementing intelligence efforts at the operational and tactical level.

e.
Providing civil administration or military government in foreign tenitory.

f.
Controlling the local noncombatant population; detaining enemy collaborators; and exercising military control over private, public, and enemy property.

11-4. Scope. Civil affairs operations extend across the operational continuum and throughout the area of operations.
11-5. The GS/Civil-Military Operations (CMO) Officer:
a.
Is the principal staff assistant to the commander in civil affairs matters, including all matters concerning political, economic, and social aspects of military operations.

b.
Acts as liaison between the military forces, civil authorities, and people in the area of operations.

c.
Coordinates actions in which the force employs psychological operations techniques to support civil affairs objectives.

Section I1 Legal Operations in Support of Civil Affairs
11-6. Legal personnel for civil affairs.
a. The staff judge advocate is the commander’s primary legal advisor and supervises legal operations in support of civil affairs. The G5 coordinates with the SJA on all legal matters related to civil affairs. The SJA will provide technical supervision,, assistance, and guidance to judge advocates in supporting civil affairs organizations.

b.
Judge advocates assigned to civil affairs units are the primary legal advisors to that organization. The senior judge advocate of the unit is the unit’s command judge advocate (CJA) and, therefore, is a member of the cornmandeis personal and special staff. CA judge advocates provide mission-essential legal services to the unit, including operational law legal service, as required by the commander. The CA CJA will coordinate with the staff judge advocate of the command to which the civil affairs organization is assigned or attached for technical guidance and supervision.

c.
Judge Advocate General Service Organizations (JAGSO) may be detailed to corps, TAACOMs, and theater armies to assist with civil affairs legal matters.

11-7.Legal services in support of civil affairs.
a. Legal services are critical to properly advising and assisting the commander in fulfilling his legal obligations and complying with moral standards regarding local civilians.
(1)
Legal obligations derive from domestic, international, and, when applicable, foreign law. The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War sets forth most of a commandeis legal obligations.

(2)
Moral standards include local customs and traditions, cultural and religious considerations appropriate to the area of operations, and established principles of humanity.

b.
The SJA of the supported command and the CA CJA will effect coordination to provide the following legal services to their commanders during all phases of CA operations:

Population control measures. Planning phase. (1)

a.
Assisting in the preparation of, and reviewing, civil affairs plans for consistency with the law and national command authority guidance.

b.
Preparing the legal section of the civil affairs area study and assessment.

c.
Providing predeployment CA training as required.

(2)
Combat operational phase. Providing advice on:

a.

b.
Targeting to minimize unnecessary collateral damage or injury to the civilian population.

c.
Treatment of dislocated civilians, civilian internees, and detainees.

d.
Requests for political asylum and refuge.

e.
Acquisition of private and public property for military purposes.

f: Psychological operations and their effects on the civilian populace.
Providing advice on disaster relief. Stability and consolidation phase. (3)

a.
Providing advice on and disposing of claims submitted by local civilians.

b.
Providing advice on the jurisdiction of local courts over United States military personnel and activities.

c.
Providing advice on humanitarian and civic assistance issues.

d.

e, Assisting in the creation and supervision of military tribunals and other activities for the proper administration of civil law and order.
f:
Assisting civil administration activities, including:

I.
The establishment and operation of local judicial and administrative agencies.

2.
The closing and reopening of local courts, boards, agencies, and commissions.

3.
Defining the jurisdiction, organization, and procedures of local government institutions.

Glossary

ACMR  CONUS
Army Court of Military Review  continental United States
MARS  CONUSA
Army Federal Acquisition Regulation  Continental United States Army
Supplement
COSCOM
AJAG  corps support command
Assistant Judge Advocate General
8
AIAG/CN  command post
Assistant Judge Advocate General for Civil
Law and Litigation  CS
combat support
AJAG/MIL
Assistant Judge Advocate General for  CSA
Military Law and Operations  Chief of Staff, United States Army
AR  CSS
Army Regulation  combat service support
ARNG  cz
Army National Guard  combat zone
ASG  DA
area support group  Department of the Army
ATCCS  DAD
Army Tactical Command and Control  Defense Appellate Division
Systems
DCSPER
BOS  Deputy Chief of Staff, Personnel
battlefield operating system
DOD
CHS  Department of Defense
common hardware and software
DOJ
CINC  Department of Justice
commander in chief
DSJA
CDNCFOR  deputy staff judge advocate
Commander in Chief, Forces Command CJA  I  emergency deployment readiness exercise
command judge advocate
EPW
a0  enemy prisoner of war
civil-military operations
EUCOM
COMMZ  United States European Command
communications zone

FAR
Federal Acquisition Regulation
FEMA
Federal Emergency Management Agency
FOA field operating agency
FORSCOM Forces Command
GAD

Government Appellate Division
GCMCA general court-martial convening authority
HHC headquarters and headquarters company
HQDA Headquarters, Department of the Army
IMA
individual mobilization augmentee
JA judge advocate
JAGC Judge Advocate General’s Corps
JAGS0 Judge Advocate General Service Organization
JCS Joint Chiefs of Staff
JRDC
joint regional defense command
JSAC joint state area command
KAPP

Key Asset Protection Program
LAAWS
Legal Automation Army-Wide System
LDC land defense of CONUS
LIC
low intensity conflict
LLM.
Master of Laws
LSC Legal Services Command
LSO legal support organization
MACOM major Army command
MCM
Manual for Courts-Martial
MET-T mission, enemy, terrain, troops, and time- available
m
military judge team
mCD
Military Support to Civil Defense
NCA National Command Authority
NCO noncommissioned officer
OCONUS outside continental limits of the United States
OPLAN operational plan

OPORD
operations order

OTJAG
Office of The Judge Advocate General

PAC
personnel administrative center

PC0
peacetime contingency operations

PKO
peacekeeping operations

POC
point of contact

POM
preparation for overseas movement

PSS
personnel service support

PSYOPS
psychological operations

RLC

regional law center

SJA
staff judge advocate

SO
special operations

SOF
special operations forces

STARC
state area command

TAACOM
theater army area command

TUG
The Assistant Judge Advocate General

TDS
United States Army Trial Defense Service

TP

task force

TJAG
The Judge Advocate General

TJAGSA
The Judge Advocate General’s School,
United States Army

UCMJ
Uniform Code of Military Justice

USAISA
United States Army Legal Services Agency

USAR
United States Army Reserve

USARCS
United States Army Claims Service

USCENTCOM
United States Army Central Command

USCMA
United States Court of Military Appeals

USSOUTHCOM
United States Army Southern Command

References

REQUIRED PUBLICATIONS

Required publications are sources that users must read or use to understand or comply with this publication.
Field Manuals

27-1

Legal Guide for Commanders

27-10

The Law of Land Warfare

27-14

Legal Guide for Soldiers

33-1

Psychological Operations

41-10

Civil AKairs Operations

80-1

Army Special Operations Forces

W14

Rear Battle

100-1

The Army

1W5

Operations

100-10

Combat Service Support

100-15

Corps Operations

100-20

Low Intensity Conflict

100-103

Command and Control for Commanders and Staff

101-5

Staff Organizations and Operations
101-5-1

Operational Terms and Symbols
DA Pamphlets

27-21

Administrative and Civil Law Handbook

27-25
Prisoner of War: Rights and Obligations
Under the Geneva Convention

27-26

Rules for Professional Conduct for Lawyers

27-153

Contract Law

27-162

Claims
TRADOCPamphlet
525-52

U.S. Army Operational Concept for Providing Legal Services in Theaters of Operation
Army Regulations
10-72

Field Operating Agencies, Office of The
Judge Advocate General
27-1

Judge Advocate Legal Service
27-3

Legal .Assistance
27-10

Military Justice
27-20

Claims
27-40

Litigation

27-50

Status of Forces Policies, Procedures, and
Information
RELATED PUBLICATIONS

Related publications are sources of additional information. They are not required to understand this publication.
Field Manuals

25-2

Unit Management Training

25-100

Training the Force

5440

Area Support Group

63-1

Combat Service Support Operations–
Separate Brigade

63-2

Combat Service Support Operations–
Division (How to Support)

63-2-2

Combat Service Support Operations– Armored, Mechanized, and Motorized Divisions

63-3

Combat Service Support Operations–Corps (How to Support)

63-3J

Combat Service Support Operations–
Theater Army Area Command

71-3

The Armored and Mechanized Infantry
Brigade

1w2-1

Soviet Army Operations
DA Pamphlets

27-1

Treaties Governing Land Warfare

27-1-1

Protocols to the Geneva Conventions of 12
August 1949

27-7

Military Justice Handbook, Guide for
Summary Court-Martial Procedure

27-24

Selected International Agreements (Vol 11)

27-173

Trial Procedure

360-525

Family Assistance Handbook for
Mobilization
Army Regulations

5-3

Installation Management and Organization

27-13
Courts of Military Review–Rules of Practice
and Procedure

27-53

Review of Legality of Weapons Under
International Law

27-55

Authority of Armed Forces Personnel to
Perform Notarial Acts

27-70

Department of Defense Foreign Tax Relief
Program

310-25

Dictionary of United States Army Terms

350-1

Army Training

525-12

Noncombatant Evacuations

6C@8
Military Personnel Operations
600-200

Enlisted Personnel Management System
OTHER PUBLICATIONS
JCS Pub 1, Dictionary of Military and
Associated Terms
JCS Pub 3, Joint Operations

INDEX

ACMR (U.S. Army Court of Military Review).
See also judicial legal services.
Chief Judge, 7-8
counsel before, 8
description, 2, 8
judicial legal services, as part of, 2
reviews by, 2, 4

adrninistrative/contract law team. See JAGSO, types of. administrative law. See also functional areas of
military law and legal services.
chief, duties in SJA section, 11
civilian personnel law, 3, 10, 11, 16
conflicts of interest, 11
environmental law, 1, 3, 11
federal litigation, 1,2, 3, 10
Freedom of Information/Privacy Acts, 3
government information practices, 3
JAGS0 team, 15
labor and employment law, 3, 10, 11,

16
law of military installations, 2, 10, 16
line of duty investigations, 3
military personnel law, 2, 3, 10, 13, 32,

37, 40
military support to civil authorities, 2,

10, 30
mobilization law, 1, 10, 15, 16, 42
nonappropriated fund activities, 3, 10
organizational legal service, as an, 1, 2,

17, 21, 36, 37, 45
report of survey system, 3, 10
standards of conduct, 3, 10

AirLand Battle doctrine
FM 100-5, as contained in, iii, 1
JAGC’s primary mission, and, 1
JAGSO’s and, 14
legal operations in, 1, 17-18, 43
legal resources needed in, 26-27
tenets of, 18

AJAG/CIV (Assistant Judge Advocate General
for Civil Law and Litigation)
as part of JAGC organization, 7
supervises DAD and TDS,’ 8

AJAG/MIL (Assistant Judge Advocate General for Military Law and Operations)
as part of JAGC organization, 7
supervises GAD, 8
AJAG/OPS (Assistant Judge Advocate General
for Operations)
as part of JAGC organization, 7
alliances and cooperative agreements.See also

joint operations and host nation.
economic assistance, 33, 36
and international law, 28, 30-32, 36-

37,40 allied operations. See joint operations. ALIS (Army Law Library Service)
administration of, 8, 12
AR lCb72, Pield ow rat in^ Anencies
TJAG FOA’s described in, 8
AR 27-1, Judge Advocate Led Services
description of OTJAG, 7-8
army mission

stated, 1
Army Reserve. See USAR (Army Reserve).
ARNG (Army Reserve National Guard)

JAGC as part of, 7
mobilization, 42-45
RLC’S support, 15-16> 43
reorganization during LDC,43-44

ARNG Special Assistant to TJAG
as part of JAGC organization, 7

ASG (area support group)
mission, 22
SJA, duties of, 23, 35

battalion. See organization/unit brigade. See organhtion/unit CENTCOM (U.S. Central Command). See UC
(unified commands). civil affairs operations-See also host nation and
civil authorities.
LIC operations, in, 28, 30-31
mission, 46
operational law and, 6
organizational legal support, 17, 46-48
special operations, 40

civil authorities. See also host nation and civil
afFairs operations.
combat requisition, 18, 42, 44, 47
LDC, and, 42-44
military support to, 2, 10, 30, 46-48

RLC’s and, 16
CIA (Command Judge Advocate). See also SJA
and OSJA.
commander and, 4, 12, 17, 37
described, 12
functions, 12, 37, 47-48
military operations and, 18-20, 37-39,
47
section, 7, 20, 37
claims. See also functional area of military law
and legal services.
against the United States, 3
chief, duties in SJA section, 11
host nation agreements, and, 36-38, 47
in favor of the United States, 2
JAGS0 team, 15
mobility required to provide, 27
organizational legal service, as an, 1-3,
17, 31, 32, 36-38, 44-45, 47
SJA and, 10, 36
USARCS described, 8
coalition operations. See joint operations.
COMA (U.S. Court of Military Appeals)
counsel before, 2, 8
judicial legal service, as a, 2
reviews by, 4
combat forces
assigned to corps, 23
CZ described, 20
legal services provided to, 1, 8-9, 14,
27
operations, 20-21, 28, 38-39, 43
commanders. See also organizational legal
services, command support
CJA and, 4, 12, 17
international law and, 4-5, 35
law of military installations and, 2-3
legal NCO/specialist and, 12-13, 20,
25, 27
military justice and, 2, 4
operational law and, 5-6, 35-36
resources needed to provide legal
services to, 26-27

responsibilities, 1
SJA and, 4, 9-12, 18-19, 36-37, 47-48
supported with legal services, iii, 1, 5,
14, 17, 18-20, 27, 35-39, 46-48
use of judge advocates by, 5-6, 18-19,
35-39, 40-41
COMMZ (communications zone). See theater of
operations.
conflict See also LIC environment, operational
continuum; peacetime competition; and
war.
described, 1,26, 29
legal services during, 28-34
special operations, and, 40-41
contract law. See also functional areas of
military law and legal services.
Chief, duties in SJA section, 11
description, 3-4
JAGS0 team, 15-16
organizational legal service, as an, 1, 3-
4, 17, 31-32, 36-38, 44-45
SJA and, 10, 36
CONUS (continental United States). See LDC.
CONUSA (Continental United States Army)
RLC support to during premobilization,
15, 43
reorganization during LDC, 43
corps
CZ, in, 20-21, 23
commander, 37
COSCOM SJA section, control of, 24
defense counsel attached to, 25
described, 23, 37
division legal assets removed to, 23-24
JAGC personnel as part of LSC, 8-9
JAGS0 assignment to, 14, 20
legal services provided by, 20, 23-24,
31-32, 35, 37-38
military judges attached to, 20, 24, 27
operational law officer in main CP, 24
organization, 23, 37
SJA of, 23-24, 37-38
TAACOh4’s and, 22

COSCOM (corps support command)
JAGS0 assignment to, 14, 20
location of legal personnel, 24
organization, 23-24
SJA of, 24, 35

count~urgency.See conflict court-martial.See criminal law. court-martial defense team. See JAGSO, types
of. court-martial trial team. See JAGSO, types of. criminal law. See also hctional areas of
military law and legal services.
chief, duties in SJA section, 11
defense legal service, as a, 2, 4, 8, 16,

27
description, 4
JAGS0 teams, 14-16
judicial legal service, as a, 2, 4, 8, 16,

27
mobility required to provide, 27
organizational legal service, as an, 1, 2,

4, 10-13, 17, 27, 32-33, 36-38, 40-

41, 44-45
SJA and, 9-11, 22, 32, 36-37
unit level functions, 12-13, 27, 37

CS (combat support)
COMMZ, in, 20, 39
corps, assigned to, 23, 39
legal services provided to, 8-9, 14, 27,

39
operations, 20, 21, 21, 28, 37, 38-39

CSA (Chief of SM, Amy)
OTJAG and the, 7
TJAG as legal advisor to, 7

CSS (combat service support)
BOS (battlefield operating system), 1
corps, assigned to, 23, 37, 39
FM 100-10, iii, 1
imperatives of, 1, 17-19

anticipation, 18

continuity, 18-19
improvisation, 19
integration, 18

responsiveness, 19
legal operations and, 18-22, 43
legal services provided to, 8-9, 14, 27,
39
operations, of, 28, 37-39, 45

c;T. [combat zone]. See theater of operations. DA (Department of the Army). See also Amy mission.
TJAG relationship with, 7

DAD (Defense Appellate Division). See defense legal services, appellate.
defense legal services. See also judicial legal services; organizational legal services; legal services; and functional areas of military law.
appellate defense counsel, 2, 4, 8
corps and, 8-9, 24
COSCOM and, 9, 24
described, 1-2
divisions and, 9, 25, 38
JAGS0 teams, provided by, 15, 43
LSC, as part of, 9, 20
mobility required to provide, 27
protect soldier’s rights, 17
separate brigades and, 9, 25, 39
TA and, 11, 22
TAACOM and, 9, 22-23
triaI defense counsel, 2, 4, 8-10, 15, 27,

39, 43
USALSA, as part of, 8

division
CZ, in, 20, 37-38
description, 24-25, 38
defense legal services in, 20, 25, 31, 38
legal services provided, 38
SJA of, 25, 31, 38
types of, 24-25

DOD (Department of Defense)
designates claims areas, 36-37
Reorganization Act of 1986, 20
Dar (Department of Justice)
supports LDC, 43

drug suppression operations. See LIC environment DSJA (Deputy SM Judge Advocate). See also
OSTA; SJA; and CTk
duties and responsibilities, 11, 38
mentioned, 9-12

EAC (echelons above corps)
JAGC personnel as part of LSC, 8-9
JAGS0 legal support of, 14
judicial legal services in, 20, 27

EAD (echelons above division)
defense legal services in, 20
EDRE (emergency deployment readiness
exercise)
organizational legal service, 5
EPW/(=I (enemy prisoner of war/civilian

internees)
criminal law concern, 4
operational law concern, 6, 18, 31, 36
organizational legal service, 17, 36, 47

EUCOM (U.S. European Command). See UC
(unified commands).
FEMA (Federal Emergency Management
Agency)
and resources during LDC, 43
FM 100-5,Operations
legal operations reflect and support, iii,
1
FM 100-10, Combat Service Support
legal operations reflect and support, iii,
1
FM 100-20, Milimy Operations in Low
Intensity Conflict
cited, 30, 33-34
FM 101-5, Staff Omanization and’ Operations
legal operations reflect and support, iii
FOA (field operating agencies, TJAG). See also

TJAGSA; USAISA; and USARCS.
descriptions, 8
legal services provided by, 7
supervised by TAJAG, 7

FORSCOM (Forces Command)
commander during LDC, 42-43

functional areas of military law. See also administrative law; claims, contract law; criminal law, international law; legal assistance; operational law; and legal services.
AirLand Battle doctrine, essential to, 18
automation supports, 27
chiefs of, duties in SJA sections, 11
descriptions, 1-6, 11
JAGSOJs provide services in, 14-16

GAD (Government Appellate Division). See
government counsela appellate. general war. See war. government cod
appellate, 4, 8

trial, 4, 9, 11, 14-15
group. see organhtios/unit
host nation

law, 5, 10-11, 30-32, 35-37, 40-41, 46-
48
SUPPO~~,

4, 22, 32, 35-38, 46-48
insurgency. See LIC environment
international law. See also functional areas of

military law and legal services.
Chief, in SJA section, 11
JAGS0 team, 14
operational law and, 5-6, 30-31, 36-37
organizational legal service, as an, 1, 4-

5, 17-19, 31, 36-37, 40
SJA and, 10, 21, 36
internationaUoperational law team. See JAGSO,
types of.

JAGC (Judge Advocate Gends Corps)
chief legal NCO, 9 12
court reporters, 1, 9, 11-12
general officers, 7
judge advocates, 1-6, 9, 11, 26-27, 31,

47
legal administrators, 1, 9, 11-12
legal NCOs/specialists, 1, 7, 9, 11-13,

20, 25, 27, 31, 38
military judges, 2, 4, 8-9, 15

operational location of personnel, 24-
25, 33, 36, 38-39
organization of, 7-13
primary mission, iii, 1
JAGS0 (judge advocate general service
organization). See also functional areas of
military law and legal services.
AirLand Battle and, 14
assignment, 2, 14, 22-24, 43, 48
description, 12, 14-16, 43
mission, 14, 20, 43
provides legal services, 7, 20, 43
required support, 15
types of JAGSO’s, 14-15

administrativdcontract law team, 15
court-martial defense team, 2, 14-16
court-martial trial team, 14-15
internationavoperational law team, 14
legal assistancdclaims team, 15
ISO (legal support organization), 14-16
military judge team, 2, 14-16
RZX: (regional law center), 15-16, 43
senior military judge team, 2, 14-16
joint operations. See also UC (unified
commands).
multinational (coalition), 4, 20-21, 35-
36, 46
multiservice, 4, 20-21, 35-36, 43
JRDC (joint regional defense commands)
during LDC, 43
JSC (Joint Chiefs of Staff)
advice of, 20
judge advocates
assignment, 2, 8, 11, 38-39, 41, 44, 47
description, 1-2, 11
professional training, 8
provide legal services, 1-6, 31, 35, 38-
39
qualifications, 11
relationship with commander, 1-2, 5-6,
41, 47
roles in functional areas, 2-6
rules of engagement and, 6, 44
SJA section, part of, 9, 38-39

training units in law of war, 6, 10-11,
31, 41, 44
Judge Advocate General,The. See TJAG.
Judge Advocate Generals,The Assistant See
TAJAG; ATAG/QV; NAGAAIL; AJAG/QPS.
judicial legal services. See also defense legal
services; organizational legal services; legal
services; and functional areas of military
law.
appellate judges, 2
ASG’s and, 22-23
corps and, 9, 23-25, 27, 37
COSCOM’s and, 24
court-martial location, 27, 36-37
described, 1-2
divisions and, 25, 38
JAGS0 teams, provided by, 2, 16, 43
LSC, as part of, 8-9, 20
mobility required to provide, 27
protects soldieis rights, 2, 17
provided on geographic basis, 27
separate brigades and, 25, 39
TA’s and, 9, 22, 36-37
TAACOMs and, 9, 22-23
trial judges, 2, 4, 9, 9-10, 15, 27, 39,
43
USALSA, as part of, 8
USATJ, as part of, 2
WP (key asset protection program). See LDC.
LAAWS (legal automation army-wide system)
described, 27
law of war
international law, as, 31
operational law, part of, 5-6, 36
organizational legal service, as an, 17,
36, 40
training, 6, 11, 33, 41
LDC (land defense of CONUS). See also
mobilization.
described, 42-45
legal support of, 43-45
RLC support during, 15-16

legal assistance. See also functional areas of
military law and legal services.
chief, duties in SJA section, 11
description and types of, 5
JAGS0 team, 15
organizational legal service, as an, 1, 2,

17, 33, 36, 38, 40-41, 44-45
soldier, provided to, 2, 17-19, 33, 44
SJA and, 10

legal assistancdclaims team. See JAGSO, types of.
legal operations
AirLand Battle and, 1, 17
civil affairs operations, and, 46-48
CSS and, 1
described, iii, 1, 17, 26
LDC and mobilization, during, 43-45
LIC environment, in, 28-34
objectives of, iii, 1, 17, 36
principles of, 17
special operations, in, 40-41
war, in, 35-39

legal resources
automation equipment, 27
communications, 27
economic and effective use of, 18-19,

43
mobility required, 26-27

legal services. See also functional areas of military law; defense legal services; judicial legal services; and organizational legal services.
army role, in complex, iii, 1
consequences of long interruptions of,

18-19

during LDC and mobilization, 43-45
forms of, 1-2
OTJAG establishes policy for, 8
provided by RLC’s, 15-16
resources needed to provide, 26-27
scope, 26
theater of operations, in, iii, 1-2, 20,

22-25, 32-33, 35-39

types of, 1-6
units without organic legal support, to,
20, 22-25

LIC (low intensity conflict) environment Sm also operational continuum; con£lict’, peacetime competition; and war.
conflict, 1, 26, 29
described, 26, 28-34
legal services during, 28-34
peacetime competition, 1,26, 29
special operations, and, 40-41

limited war. See war.
LSC (Legal!%vices Command)
legal services, provides, 7-9, 20, 22-25
primary mission, 8-9

IS0 (legal support organization). See JAGSO, types of. MCM (Manual for Courts-Martial). See criminal
law. military judge team. See JAGSO, types of. military justice. See criminal law. mobilization
described, 42
legal support of, 43-45
stations, 15-16, 42, 44

MSCD (military support to civil defense). See
LDC. multinational forces. See joint operations. multiservice forces. See joint operations. nondivisional troops
corps, assignment to, 23
legal services provided to, 20, 22-23,

25
nonjudicial punishment Sm criminal law.
nuclear war. See war.
operational continuum. See also conflict’,

peacetime competition; war,and LIC (low
intensity conflict) environment
general states of the, 1,26, 29
legal operations and, iii, 1, 14, 26

operational law. See also functional areas of
military law and legal services.
chief, duties in SJA section, 11

description, 5-6
JAGS0 team, 14
LDC and mobilization, 44
officer in main command post, 24-25,

30-31, 35, 38

organizational legal service, as an, 1, 2,
5-6, 17-19, 21, 24, 30-33, 35-38,
40-41, 44

SJA and, 11, 36-37
operation plans and orders
advice on, 5, 11, 17, 24-25, 27, 32-33,
36, 40-41
prepare legal annexes to, 6, 14

organizational legal services. See also defense legal services; judicial legal services; legal services; and functional areas of military law.
command support, 1-2, 17
described, 1-2, 17
organization support, 1-2, 17, 31-32
soldier support, 2, 17

organktions or units
commandeis responsibilities, 1
deployment, 1, 17, 32-33, 35, 40-41, 44
law of war training, 6
legal personnel remain organic to, 26
LSC legal support provided to, 8-9
mobilization, 1, 44
MTOE personnel, 43
nondivisional troops supported, 20, 22-

23, 25
operational law and, 5-6, 24, 33
PAC (personnel administrative center),

7, 12-13, 20, 25, 31, 38
rights under international law, 4-5, 32
supported with legal services, 1-6, 12-

14, 17, 20, 24-25, 38, 47
type functional units in corps, 23

OSJA (mce of the SM Judge Advocate)
augmented by JAGS0 teams, 14-15
corps, in, 37-38
COSCOMJs,in, 24

description, 9
divisions, in, 25, 38
location of personnel, 24-25, 33, 35-

39, 43
MTOE personnel, 43
organization of corps/COSCOM, 24, 37-

38
personnel comprising, 9-12
provide legal services, 7, 20, 24, 33,

35-38, 40-41
resources needed, 26-27
separate brigades, in, 25, 39
unit legal specialists and, 12-13, 25, 38

OTJAG (Office of the Judge Advocate General)
TAJAG responsible for administration, 7
mission, 7-8
provides legal services, 7

peacekeeping operations. See peacetime competition.
peacetime competition. See ah operational continuum; conflict; war, and LIC environment
description, 26, 29
operational continuum, as element of,
26, 29
peacetime contingency operations. See
peacetime competition.
PERSCOM (personnel command)
SJA of, 36
POM (preparation for overseas movement)
as legal assistance service, 5, 33
PSS (personnel service support)

legal services as element of, 1, 33
regiment. See organization/unit
regular army

JAGC as element of, 7
RLC (regional law center). See JAGSO, types of.
ROE (rules of engagement)

advice on, 1, 17, 21, 33, 43
routine peacetime competition- See operational
continuum.

SA (Secretary of the Army)
TJAG as military legal advisor to, 7
details members of JAGC, 7
Secretary of Defense
establishes UC’s, 21
senior military judge team. See JAGSO, types of.
separate brigade
defense legal services, and, 25, 39
judicial legal services, and, 25, 39
organization of, 25, 38-39
SJA of, 25
types of, 38-39
SJA (staff judge advocate). See also OSJA;
DSJA; and CJA
assignment, 9
commander, relationship with, 4, 17-
18, 35-36, 43, 46-48
criminal law and, 4, 14-15
deployment of unit, 32-33, 35
duties and responsibilities, 9-12, 14,
18, 21-26, 31-33, 35-39, 43-45, 47
JAGS0 employment, 14, 22-24, 47
SO (special operations)
activities, 40
civil affairs and, 46
legal operations and, 40-41
LIC environment, in, 28
mission, 40
SOFA (status of forces agreements)
international law, as, 5, 31-32
SJA provides advice on, 9, 36, 47
organizational legal service, as an, 1, 4-
6, 35-36
soldiers
supported with legal services, 1-2, 4, 5,
14-17
SOUTHCOM (U.S. Southern Command). See UC
(unified commands).
squadron See organization/unit.
staEf judge advocate, deputy. See DSJA
strategic war.See war.
TA (theater army)
commander, 21, 36-37

defense counsel attached to, 22
described, 20-21
forces assigned to, 21
JAGS0 assignment to, 14, 20, 47
legal services provided by, 20, 22, 35-
37
military judges attached to, 22, 26-27
organization, 21-22
SJA of, 22, 36-37
TAACOM (theater army area command)
defense counsel attached to, 22-23
described, 21-22
JAGS0 assignment to, 14, 20, 48
legal services, and, 22-23, 35, 36-37
military judge attached to, 22-23, 27
mission, 22, 36-37
SJA of, 22-23, 36-37
TAJAG (The Assistant Judge Advocate General)
duties and responsibilities, 7
targets and weapons
advice on, 1, 5-6, 17-18, 35-36, 47
terrorism. See LIC environment
theater of operations
cz of, 20
COMMZ of, 20-22, 36
described, 20, 35, 46
legal services in, 1, 20-22, 33, 35-39
TA in, 20-22, 36-37
TAACOM in, 22, 36-37
theater strategic environment See also
operational continuum.
conditions, 1, 26
threats, 1,26
TJAG (The Judge Advocate General)
and accuseds, 4
duties and responsibilities, 2, 7, 14, 36-
37
national interest legal policy, 12
TJAGSA (The Judge Advocate General’s School,
The Army). See also FOA
description, 8
total army concept
JAGSO’s and, 14

mal counsel. See government counsel.
UC (unified commands]. See also theater of

operations.
description, 20
legal services provided by, 20-21, 32-

33, 35-36
organization, 20-21
SJA of, 21, 32-33, 35-37

UW (Uniform Code of Military Justice)
judicial duties authorized by, 2
governs military justice, 4, 30-31, 37-

38

USAISA (U.S. Army Legal Services Agency). See also FOA; defense legal services; judicial legal services; organizational legal services; and legal services.
activities, 8
collocated with LSC, 8
Commander, 7-8
described, 8
primary mission, 8
provides appellate counsel, 4

USAR (ArmyReserve)
JAGC as part of, 7
mobilization, 42-44
RLC’s support, 15, 43
training program, 11

USARCS (U.S. Army Claims Service). See also
FOA and claims.
described, 8

U.S.     Army Judiciary
judicial legal service, as a, 4, 8

U.S.     Army Trial Judiciary
Chief, and JAGSO’s, 14
judicial legal service, as a, 2,-4, 8, 9

USATDS (U.S. Amy Trial Defense Service)
Chief, and JAGSO’s, 14
criminal law and, 4
responsibilities, 2,8-10

U.S. Constitution
as applies to military legal services, 4

U.S. Supreme Court
counsel before, 2, 8
judicial legal service, as a, 2
reviews by, 4

war. See also operational continuum; conflict, peacetime competition; and LIC environmene
description, 26, 29, 35
legal services and, 35-39
operational continuum, as element of,

1, 26, 29
war crimes
advice on, 6, 10, 14, 18, 27, 36-38
War Powers Resolution
advice on, 5-6

FM 27-100

3 September 1991

By Order of the Secretary of the Army:
GORDON R SULLIVAN
General, United States Army
Chief of Staff

Official:
Patricia P. Hickerson

Colonel, United States Army The Adjutant General
DISTRIBUTION:
Active Amy, USAR,andARNG: To be distributed in accordance with DA Form 12-llE, requirements for FM 27-100, Legal Operations (Qtyrqr block no. 4869).
‘U.S. Government Printing Office: 1991-527-027/40028

 

LAW OF WAR HANDBOOK
(2004)

MAJ Keith E. Puls
Editor
Contributing Authors
Maj Derek Grimes, USAF
Lt Col Thomas Hamilton, USMC
MAJ Eric Jensen
LCDR William O’Brien, USN
MAJ Keith Puls
MAJ Randolph Swansiger
LTC Daria Wollschlaeger

All of the faculty who have sewed before us and contributed to the literature in the field of operational law.
Technical Support
CDR Brian J. Bill, USN Ms. Janice D. Prince, Secretary
JA 423
International and Operational Law Department
The Judge Advocate General’s Legal Center and School
Charlottesville, Virginia 22903

PREFACE
The Law of War Handbook should be a start point for Judge Advocates looking for information on the Law of War. It is the second volume of a three volume set and is to be used in conjunction with the Operational Law Handbook (JA422) and the Documentary Supplement (JA424). The Operational Law Handbook covers the myriad of non-Law of War issues a deployed Judge Advocate may face and the Documentary Supplement reproduces many of the primary source documents referred to in either of the other two volumes. The Law of War Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide “the school solution” to a particular problem, but to help Judge Advocates recognize, analyze, and resolve the problems they will encounter when dealing with the Law of War.
The Handbook was designed and written for the Judge Advocates practicing the Law of War. This body of law is known by several names including the Law of War, the Law of Armed Conflict and International Humanitarian Law. While these terms may largely be used interchangeably, for historical and contextual reasons, the Law of War will be used in this publication. Unless otherwise stated, masculine pronouns apply to both men and women.
The proponent for this publication is the International and Operational Law Department, The Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments, suggestions, and work product from the field to TJAGLCS, International and Operational Law Department, Attention: MAJ Keith Puls, 600 Massie Road, Charlottesville, Virginia 22903-1781. To gain more detailed information or to discuss an issue with the author of a particular chapter or appendix call MAJ Puls at DSN 521-3310; Commercial (434) 971-33 10; or email keith.puls@hqda.army.mil.
The 2004 Law of War Handbook is on the Internet at www.jagcnet.army.mil. After accessing this site, Enter JAGCNet, then go to the International and Operational Law sub-directory. The 2004 edition is also linked to the CLAMO General database under the keyword Law of War Handbook -2004 edition. The digital copies are particularly valuable research tools because they contain many hypertext links to the various treaties, statutes, DoD Directives/Instructions/Manuals,CJCS Instructions, Joint Publications, Army Regulations, and Field Manuals that are referenced in the text. If you find a blue link, click on it and Lotus Notes will retrieve the cited document from the Internet for you. The hypertext linking is an ongoing project and will only get better with time. A word of caution: some Internet links require that your computer contain Adobe Acrobat software.
To order copies of the 2004 Law of War Handbook, please call CLAMO at (434) 971 3339 or email CLAMO@hqda.army.mil.
TABLE OF CONTENTS
History of the Law of War ……………………………………………………………………………………. Chapter
Framework of the Law of War ………………………………………………………………………………. Chapter
Legal Basis for the Use of Force ………………………………………………………………………… Chapter
Geneva Convention I (Wounded and Sick in the Field) ……………………………………………. Chapter
Geneva Convention I11 (Prisoners of War) …………………………………………………………….. Chapter
Geneva Convention IV (Civilians) ………………………………………………………………………Chapter
Means and Methods of Warfare …………………………………………………………………………….. Chapter
War Crimes and Command Responsibility …………………………………………………………….. Chapter
Applying the Law of War in Operations Other Than War …………………………………………Chapter
Human Rights …………………………………………………………………………………………………… Chapter

EXPANDED TABLE OF CONTENTS
History of the Law of War ………………………………………………………………………………………….. 1

Framework of the Law of War …………………………………………………………………………………… 19

Legal Basis for the Use of Force ………………………………………………………………………………… 35

Geneva Convention I: Wounded and Sick in the Field …………………………………………………. 51

Geneva Convention 111: Prisoners of War …………………………………………………………………… 75

Appendix A. CENTCOM Reg 27-13 (Determination of EPW Status) ……………………. 116

Geneva Convention IV: Protection of Civilians in Armed Conflict …………………………….. 137

Means and Methods of Warfare ……………………………………………………………………………….. 163

War Crimes and Command Responsibility ………………………………………………………………… 199

Appendix A . US Position regarding ICC …………………………………………………………….. 227

Appendix B. Milosevic Indictment Excerpt …………………………………………………………. 233

The Law of War and Military Operations Other Than War …………………………………………. 239

Appendix A. CPL and Civilian Detainment ………………………………………………………. 260

Appendix B. CPL and the Treatment of Property …………………………………………………. 266

Appendix C . CPL and Displaced Persons ……………………………………………………………. 269

Human Rights ……………………………………………………………………………………………………….. 279

Appendix A. Universal Declaration of Human Rights ………………………………………….. 289

HISTORY OF’ THE LAW OF WAR
REFERENCES
1.
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956) [-hereinafter DAPAM 27- 11 (reprinted in Documentary Supplement).

2.
Dept. of Army, Pamphlet 27-1-1, Protocols To The Geneva Conventions of 12 August 1949 (1 September 1979). [hereinafter DA PAM 27-1-11 (reprinted in Documentary Supplement).

3.
Dept. of Army, Pamphlet 27-161-2, Intemational Law, Vol. I1 (23 October 1962). bereinafter DA PAM 27-161-21 (no longer in print).

4.
International Committee of the Red Cross, Commentary on the Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Jean S. Pictet ed., 1952) bereinafter Pictet]

5.
Leon Friedman, The Law of War–A Documentary History–Vol. I (1972).

6.
Lothar Kotzsch, The Concept of War In Contemporary History and International Law (1956).

7.
Julius Stone, Legal Controls of International Conflict (1954).

8.
John N. Moore, National Security Law (1990).

9.
L. Oppenheim, Intemational Law Vol. I1 Disputes, War and Neutrality (7″‘ ed. 1952).

10.
Gerhard von Glahn, Law Among Nations (1992).

11.Michael Walzer, Just and Unjust Wars (1977).
12. Percy Bordwell, The Law of War Between Belligerents: A History and Commentary (1908).
13.
Chris Jochnick and Roger Normand, The Legitimization of Violence: A Critical History of the Laws of War, 35 HARV.INT’L.L. J. 49 (Winter, 1994).

14.
Eric S. Krauss and Mike 0.Lacey, Utilitarian vs. Humanitarian: The Battle Over the Law of War,PARAMETERS,

Summer 2002.
15. Scott Morris, The Laws of War: Rules for Warriors by Warriors, ARMY LAWYER,
Dec. 1997.
16. Gregory P. Noone, The History and Evolution of the Law of War Prior to World War II,47 NAVALL. REV. 176 (2000).
I. INTRODUCTION.
A. OBJECTIVES:
1.
Identify common historical themes that continue to support the validity of laws regulating warfare.

2.
Identify the two “prongs” of legal regulation of warfare.

3.
Trace the historical “cause and effect” evolution of laws related to the conduct of war.

1
Chup/ei-1 Hi.,tory i?j LO Irk’
4. Begin to analyze the legitimacy of injecting law into warfare.
B. The “law of war” is the “customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral states.” (FM 27-10, para. 1). It “requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.” FM 27-10, para. 3. It is also referred to as the Law of Armed Conflict or Humanitarian Law, though some object to the latter reference as it is sometimes used to broaden the traditional content of the law of war.
C. As illustrated by the diagram on page 3, the law of war is a part of the broader body of law known as public international law. International law is defined as “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as some of their relations with persons, natural or juridical.” (Restatement of the Law, Third, Foreign Relations Law of the United States, 5 101.) Public international law is that portion of international law that deals mainly with intergovernmental relations.
D. The law of war has evolved to its present content over millennia based on the actions and beliefs of nations. It is deeply rooted in history and an understanding of this history is necessary to understand current law of war principles.
Chupter 1 History of LOW
International Law

r——
I
Private Law -Public Law -commercial law intergovernmental
Law of Armed Law of Peace Conflict
Conflict Rules of
Management Hostilities

(Jus ad Bellum) (Jusin Bello)
Hague Conventions (means & methods)
[ Geneva4 Conventions I (humanitarian)
E. WHAT IS WAR? “It is possible to argue almost endlessly about the legal definition of “war.” (Pictet, p. 32). .
1. International Legal Definition: The Four Elements Test.
a.
A contention;

b.
Between at least two nation states;

c.
Wherein armed force is employed;

d.
With an intent to overwhelm.

2.     War versus Armed Conflict. Historically, only conflict meeting the four elements test for “war” triggered law of war application. Accordingly, some nations asserted the law of war was not triggered by all instances of armed conflict. As a result, the applicability of the law of war depended upon the subjective national classification of a conflict.
a.     Post WW I1 response. Recognition of a state of war is no longer required to trigger the law of war. Instead, the law of war is applicable to any
international armed conflict:
(1)”Any difference arising between two States and leading to the intervention of armed forces is an armed conflict . . . [i]t makes no difference how long the conflict lasts, or how much slaughter takes place.” (Pictet, p. 32).
11. THE UNIFYING THEMES OF THE LAW OF WAR.
A. Law exists to either (1) prevent conduct or, (2) control conduct. These characteristics permeate the law of war, as exemplified by the two prongs. Jus ad Bellurn serves to prevent conduct, while Jus in Bello serves to regulate or control conduct.
1.     Validity. Although critics of regulating warfare cite historic examples of violations of evolving laws of war, history provides the greatest evidence of the validity of this body of law.
a.
History shows that in the vast majority of instances the law of war works. Despite the fact that the rules are often violated or ignored, it is clear that mankind is better off with them than without them.

b.
History demonstrates that mankind has always sought to limit the affect of conflict on the combatants and has come to regard war not as a state of anarchy justifying infliction of unlimited suffering, but as an unfortunate reality which must be governed by some rule of law.

(1)This point is exemplified by Article 22 of the Hague Convention: “the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity.”
(2)That regulating the conduct of warfare is ironically essential to the preservation of a civilized world was exemplified by General MacArthur, when in confirming the death sentence for Japanese General Yamashita, he wrote: “The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason of his being. When he violates this sacred trust, he not only profanes his entire cult but threatens the fabric of international society.”
B. The trend toward regulation grew over time in scope and recognition. When considering whether these rules have validity, the student and the teacher (judge advocates teaching soldiers) must consider the objectives of the law of War.
1.
The purpose of the law of war is to (1) integrate humanity into war and (2) serve as a tactical combat multiplier.

2.
The validity of the law of war is best explained in terms of both objectives. For instance, many site the German massacre at Malmedy as providing American forces with the inspiration to break the German advance during World War 11’s Battle of the Bulge. Accordingly, observance of the law of war denies the enemy a rallying cry against difficult odds.

111. JUS AD BELLUM AND JUS IN BELL0
A. The law of armed conflict is generally divided into two major categories, Jus ad Bellum and Jus in Bello.
B. Jus ad Bellum is the law dealing with conflict management, of the laws regarding how states initiate armed conflict; under what circumstances was the use of military power legally and morally justified.
C. Jus in Bello is the law governing the actions of states once conflict has started; what legal and moral restraints apply to the conduct of waging war.
D. Both categories of the law of armed conflict have developed over time, drawing most of their guiding principles from history.
E. The concepts of Jus ad Bellum and Jus in Bello developed both unevenly and concurrently. For example, during the majority of the Jus ad Bellum period, most societies only dealt with rules concerning the legitimacy of using force. Once the conditions were present that justified war, there were often no limits on the methods used to wage war. At a certain point both theories began to evolve together.
IV. ORIGINS OF JUS AD BELLUM
A. Jus ad Bellum: Legitimate War. Law became an early player in the historical development of warfare. The earliest references to rules regarding war referred to the conditions that justified resort to war legally and morally.
1.
Greeks: began concept of Jus ad Bellum, wherein a city state was justified in resorting to the use of force if a number of conditions existed (if the conditions existed the conflict was blessed by the gods and was just). In the absence of these conditions armed conflict was forbidden.

2.
Romans: formalized laws and procedures that made the use of force an act of last resort. Rome dispatched envoys to the nations against whom they had grievances, and attempted to resolve differences diplomatically. The Romans also are credited with developing the requirement for declaring war. Cicero wrote that war must be declared to be just.

3.
The ancient Egyptians and Sumerians (2nd millennium B.C.) generated rules defining the circumstances under which war might be initiated.

4.
The ancient Hittites required a formal exchange of letters and demands before initiating war. In addition, no war could begin during planting season.

5.
Deuteronomy 20. “Before attacking an enemy city make an offer of peace.”

Chapter 1 History of’LOW
V. THE HISTORICAL PERIODS.
A. THE JUST WAR PERIOD.
1.
This period ranged from 335 B.C. to about 1800 A.D. The primary tenant of the period was determination of a “just cause” as a condition precedent to the use of military force.

2.
Just Conduct Valued Over Regulation of Conduct. The law during this period focused upon the first prong of the law of war (Jus ad Bellum). If the reason for the use of force was considered to be just, whether the war was prosecuted fairly and with humanity was not a significant issue.

3.
Early Beginnings: Just War Closely Connected to Self-Defense.

a.
Aristotle (335 B.C.) wrote that war should only be employed to (1) prevent men becoming enslaved, (2) to establish leadership which is in the interests of the led, (3) or to enable men to become masters of men who naturally deserved to be enslaved.

b.
Cicero refined Aristotle’s model by stating that “the only excuse for going to war is that we may live in peace unharmed ….”

4.     The Era of Christian Influence: Divine Justification.
a.
Early church leaders forbade Christians from employing force even in self-defense. This position became less and less tenable with the expansion of the Christian world.

b.
Church scholars later reconciled the dictates of Christianity with the need to defend individuals and the state by adopting a Jus ad Bellum position under which recourse to war was just in certain circumstances (6th century A.D.).

5.     Middle Ages. Saint Thomas Aquinas (12th century A.D.) (within his Summa Theologica) refined this “just war” theory when he established the three conditions under which a just war could be initiated:
a.
with the authority of the sovereign;

b.
with a just cause (to avenge a wrong or fight in self-defense); and

c.
so long as the fray is entered into with pure intentions (for the advancement of good over evil). The key element of such an intention was to achieve peace. This was the requisite “pure motive.”

6.     Juristic Model. Saint Thomas Aquinas’ work signaled a transition of the Just War doctrine from a concept designed to explain why Christians could bear arms (apologetic) towards the beginning of a juristic model.
a.
The concept of “just war” was initially enunciated to solve the moral dilemma posed by the adversity between the Gospel and the reality of war. With the increase in the number of Christian nation-states, this concept fostered an increasing concern with regulating war for more practical reasons.

b.
The concept of just war was being passed from the hands of the theologians to the lawyers. Several great European jurists emerged to document customary laws related to warfare. Hugo Grotius (1583-1645) produced the most systematic and comprehensive work, On the Law of War and Peace. His work is regarded as the starting point for the development of the modern law of war.

c.
While many of the principles enunciated in this work were consistent with church doctrine, Grotius boldly asserted a non-religious basis for this law. According to Grotius, the law of war was not based on divine law, but on recognition of the true natural state of relations among nations. Thus, the law of war was based on natural, and not divine law.

7.     The End of the Just War Period. By the time the next period emerged, the Just War Doctrine had generated a widely recognized set of principles that represented the early customary law of war. The most fundamental of these principles are:
a.
A decision to wage war can be reached only by legitimate authority (those who rule, e.g. the sovereign).

b.
A decision to resort to war must be based upon a need to right an actual wrong, in self-defense, or to recover wrongfully seized property.

c.
The intention must be the advancement of good or the avoidance of evil.

d.
In war, other than in self-defense, there must be a reasonable prospect of

victory.
8

C’hopter.1 History of LOW
e.
Every effort must be made to resolve differences by peaceful means, before resorting to force.

f.
The innocent shall be immune from attack.

g.
The amount of force used shall not be disproportionate to the legitimate objective.

B.
THE WAR AS FACT PERIOD (1800-1918).

1.     Generally. This period saw the rise of the nation state as the principle element used in foreign relations. These nation states transformed war from a tool to achieve justice to something that was a legitimate tool to use in pursuing national policy objectives.
a.
Just War Notion Pushed Aside. Natural or moral law principles replaced by positivism that reflected the rights and privileges of the modem nation state. Law is based not on some philosophical speculation, b~rt on rules emerging from the practice of states and international conventions.

b.
Basic Tenets: Since each state is sovereign, and therefore entitled to wage war, there is no international legal mandate, based on morality or nature, to regulate resort to war (realpolitik replaces justice as reason to go to war). War is (based upon whatever reason) a legal and recognized right of statehood. In short, if use of military force would help a nation state achieve its policy objectives, then force may be used.

c.
Clausewitz. This period was dominated by the realpolitik of Clausewitz. He characterized war as a continuation of a national policy that is directed at some desired end. Thus, a state steps from diplomacy to war, not always based upon a need to correct an injustice, but as a logical and required progression to achieve some policy end.

d.
Things to Come. The War as Fact Period appeared as a dark era for the rule of law. Yet, a number of significant developments signaled the beginning of the next period.

2.     Established the Foundation for upcoming “Treaty Period.” Based on the
“positivist” view, the best way to reduce the uncertainty attendant with
conflict was to codify rules regulating this area.

a.
Intellectual focus began shift toward minimizing resort to war and/or mitigating the consequences of war.

b.
EXAMPLE: National leaders began to join the academics in the push to control the impact of war (Czar Nicholas and Theodore Roosevelt pushed for the two Hague Conferences that produced the Hague Conventions and Regulations).

C.
JUS CONTRA BELLUM PERIOD.

Clruptrr 1 Hisioty of LOW
1. Generally. World War I represented a significant challenge to the validity of the “war as fact” theory.
a.
In spite of the moral outrage directed towards the aggressors of that war, legal scholars unanimously rejected any assertion that initiation of the war constituted a breach of international law.

b.
World leaders struggled to give meaning to a war of unprecedented carnage and destruction. The “war to end all wars” sentiment manifested itself in a shift in intellectual direction leading to the conclusion that aggressive use of force must be outlawed.

2.     Jus ad Bellum Changes Shape. Immediately before this period began, the Hague Conferences (1 899- 1907) produced the Hague Conventions, which represented the last multilateral law that recognized war as a legitimate device of national policy. While Hague law concentrates on war avoidance and limitation of suffering during war, this period saw a shift toward an absolute renunciation of aggressive war.
a.
League of Nations. First time in history that nations agreed upon an obligation under the law notto resort to war to resolve disputes or to secure national policy goals (Preamble). The League was set up as a component to the Treaty of Versailles, largely because President Wilson felt that the procedural mechanisms put in place by the Covenant of the League of Nations would force delay upon nations bent on war. During these periods of delay peaceful means of conflict management could be brought to bear.

b.
Eighth Assembly of League of Nations: banned aggressive war (questionable legal effect of resolution). However, the League did not attempt to enforce this duty (except as to Japan’s invasion of Manchuria in 1931).

c.
Kellogg-Briand Pact (1928). Officially referred to as the Treaty for the Renunciation of War, it banned aggressive war. This is the point in time generally thought of as the “quantum leap.” For the first time, aggressive war is clearly and categorically banned. In contradistinction from the post WW I period, this treaty established an international legal basis for the post WW I1 prosecution of those responsible for waging aggressive war.

d.
Current Status of Pact. This treaty remains in force today. Virtually all commentators agree that the provisions of the treaty banning aggressive war have ripened into customary international law.

Chapter I History of LOW
3.     Use of force in self-defense remained unregulated. No law has ever purported to deny a sovereign the right to defend itself. Some commentators stated that the use of force in the defense is not war. Thus, war has been banned altogether.
D. POST WORLD WAR I1 PERIOD.
1.
Generally. The Procedural requirements of the Hague Conventions did not prevent World War I; just as the procedural requirements of the League of Nations and the Kellogg-Briand Pact did not prevent World War 11. World powers recognized the need for a world body with greater power to prevent war, and international law that provided more specific protections for the victims of war.

2.
Post-WWII War Crimes Trials (Nuremberg, Tokyo, and Manila Tribunals). The trials of those who violated international law during World War I1 demonstrated that another quantum leap had occurred since World War I.

a.
Reinforced tenants of Jus ad Bellum and Jus in Bello, and ushered in the era of “universality,” establishing the principle that all nations are bound by the law of war based on the theory that law of war conventions largely reflect customary international law.

b.
World focused on ex post facto problem during prosecution of war crimes. The universal nature of law of war prohibitions, and the recognition that they were at the core of international legal values Gus cogens), resulted in the legitimate application of those laws to those tried for violations.

E.
The United Nations Charter. Continues shift to outright ban on war. Extended ban to not only war, but through Article 2(4), also “the threat or use of force.”

1.
Early Charter Period. Immediately after the negotiation of the Charter in 1945, many nations and commentators assumed that the absolute language in the Charter’s provisions permitted the use of force only if a nation had already suffered an armed attack.

2.
Contemporary Period. Most nations now agree that a nation’s ability to defend itself is much more expansive than the provisions of the Charter seem to permit based upon a literal reading. This view is based on the conclusion that the inherent right of self-defense under customary international law was supplemented, and not displaced by the Charter. This remains a controversial issue.

F.     Jus ad Bellum continues to evolve. Current doctrines such as anticipatory self- defense and preemption are adapted to meet today’s circumstances.
VI. ORIIGINS OF JUS IN BELL0
A. Jus in Bello: Regulation of Conduct During War. The second body of law that began to develop dealt with rules that control conduct during the prosecution of a war to ensure that it is legal and moral.
1.     Ancient China (4th century B.C.). Sun Tzu’s The Art of War set out a number of rules that controlled what soldiers were permitted to do during war:
a.
captives must be treated well and cared for; and

b.
natives within captured cities must be spared and women and children respected.

2.
Ancient India (4th century B.C.). The Hindu civilization produced a body of rules codified in the Book of Manu that regulated in great detail land warfare.

3.
Ancient Babylon (7th century B.C.). The ancient Babylonians treated both captured soldiers and civilians with respect in accordance with well- established rules.

B. Jus in Bello received little attention until late in the Just War period. This led to the emergence of a Chivalric Code. The chivalric rules of fair play and good treatment only applied if the cause of war was “just” from the beginning.
12 Chapter I Histo1.y oj’LOW
1.
Victors were entitled to spoils of war, only if war was just.

2.
Forces prosecuting an unjust war were not entitled to demand Jus in Bello during the course of the conflict.

3.
Red Banner of Total War. Signaled a party’s intent to wage absolute war (Joan of Arc announced to British “no quarter will be given”).

C. During the War as Fact period, the focus began to change from Jus ad Bellum to Jus in Bello also. With war a recognized and legal reality in the relations between nations, the focus on mitigating the impact of war emerged.
1.
A Memory of Solferino (Henry Dunant’s graphic depiction of the bloodiest battles of Franco-Prussian War). His work served’as the impetus for the creation of the International Committee of the Red Cross and the negotiation of the First Geneva Convention in 1864.

2.
Francis Lieber. Instructions To Armies in the Field (1863). First modem restatement of the law of war issued in the form of ~eneral Order 100 to the Union Army during the American Civil War.

3.
International Revulsion of General Sherman’s “War is Hell” Total War. Sherman was very concerned with the morality of war. His observation that war is hell demonstrates the emergence and reintroduction of morality. However, as his March to the Sea demonstrated, Sherman only thought the right to resort to war should be regulated. Once war had begun, he felt it had no natural or legal limits. In other words he only recognized the first prong (Jus ad Bellum) of the law of war.

4.
At the end of this period, the major nations held the Hague Conferences (1 899-1907) that produced the Hague Conventions. While some Hague law focuses on war avoidance, the majority of the law dealt with limitation of suffering during war.

D. Geneva Conventions (1949).
1.     Generally
a.
“War” v. “Armed Conflict.” Article 2 common to all four Geneva Conventions ended this debate. Article 2 asserts that the law of war applies in any instance of international armed conflict.

b.
Four Conventions. A comprehensive effort to protect the victims of war.

c.
Birth of the Civilian’s Convention. A post war recognition of the need to specifically address this class of individuals.

2.
The four conventions are considered customary international law. This means even if a particular nation has not ratified the treaties, that nation is still bound by the principles within each of the four treaties because they are merely a reflection of customary law that all nations states are already bound

by.

3.
Concerned with national and not international forces? In practice, forces operating under U.N. control comply with the Conventions.

4.
Clear shift towards a true humanitarian motivation: “the Conventions are coming to be regarded less and less as contracts on a basis of reciprocity concluded in the national interest of each of the parties, and more and more as solemn affirmations of principles respected for their own sake . . .”

5.
The 1977Protocols.

a.
Generally. These two treaties were negotiated to supplement the four Geneva Conventions.

b.
Protocol I. Effort to supplement rules governing international armed conflicts.

c.
Protocol 11. Effort to extend protections of conventions to internal conflicts.

VII. WHY REGULATE WARFARE?
A. Motivates the enemy to observe the same rules.
B. Motivates the enemy to surrender.
C. Guards against acts that violate basic tenets of civilization.
1.
Protects against unnecessary suffering.

2.
Safeguards certain fundamental human rights.

D. Provides advance notice of the accepted limits of warfare.
E. Reduces confusion and makes identification of violations more efficient.
14 Chupter I History of 120W
F. Helps restore peace.
VIII. CONCLUSION.
“Wars happen. It is not necessary that war will continue to be viewed as an
instrument of national policy, but it is likely to be the case for a very long time. Those
who believe in the progress and perfectibility of human nature may continue to hope
that at some future point reason will prevail and all international disputes will be
resolved by nonviolent means . .. Unless and until that occurs, our best thinkers
must continue to pursue the moral issues related to war. Those who romanticize
war do not do mankind a service; those who ignore it abdicate responsibility for the
future of mankind, a responsibility we all share even if we do not choose to do so.”
Clrupter I Ifi.stoty of LOW
NOTES

Clmpler 1
History of LOW

NOTES

NOTES

Chapter 2

FRAMEWORK OF THE LAW OF WAR
REFERENCES

1.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, T.I.A.S. 3362. (GWS)

2.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members at Sea, August 12, 1949, T.I.A.S. 3363. (GWS Sea)

3.
Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, T.I.A.S. 3364. (GPW)

4.
Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, August 12, 1949 T.I.A.S. 3365. (GC)

5.
The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, reprinted in 16

I.L.M. 1391, DEP’T OF Amy, PAMPHLET
27-1-1 (GP I & 11). (Reprinted in LOW Documentary Supplement).
6.     Commentary on the Geneva Conventions, (Pictet ed. 1960).
7. DEP’TOF ARMY, PAMPHLET GOVERNING (7 Dec. 1956). 27-1, TREATIES LAND WARFARE,
8. DEP’TOF ARMY,PAMPHLET LAW, VOLUME 27-161-2, INTERNATIONAL I1 (23 Oct. 1962) (no longer in print).
9.     DEP’TOF ARMY, FIELD MANUAL27-10, THE LAW OF LAND WARFARE (18 July 1956).
10.NAVALWARFARE 1-14MCWP 5-2.1/COMDTPUB 5800.7 THE COMMANDER’S
PUBLICATION HANDBOOKON THE LAWOF NAVALOPERATIONS ( Oct. 1995).[ (FORMERLY NWP 9/FMFM 1-10 (REVISION
A),
1 1. AIR FORCE PAMPHLET     LAW OF ARMED CONFLICT
1 10-3 1, INTERNATIONAL -THE CONDUCT AND AIR OPERATIONS
(19 NOV. 1976).
12.
MORNS GREENSPAN, THE MODERN LAWOF LAND WARFARE (1959).

13.
DIETRICHSCHINDLER& JIRI TOMAN, THE LAW OF ARMEDCONFLICT(1988).

14.
HILAIRE INTERNATIONAL LAW (1990).

MCCOUBREY, HUMANITARIAN

15.
HOWARDS. LEVIE, OF INTERNATIONAL CONFLICT(1986).

THE CODE ARMED
I. OBJECTIVES.
A. Become familiar with the primary sources of the law of war.
B. Become familiar with the “language” of the law.
C. Understand how the law of war is “triggered.”
19
Chuptrr 2 Fr~mzeworkof LOW
D. Become familiar with the role of the 1977 Protocols to the Geneva Conventions of 1949.
E.     Be able to distinguish “humanitarian” law from human rights law.
11.     THE LANGUAGE OF THE LAW. THE FIRST STEP IN UNDERSTANDING THE LAW OF WAR IS TO UNDERSTAND THE “LANGUAGE” OF THE LAW. THIS REFERS TO UNDERSTANDING SEVERAL KEY TERMS AND CONCEPTS THAT ARE WOVEN THROUGH THIS BODY OF LAW.
A. Sources of Law.
1.     Cukitomary International Law. This can be best understood as the “unwritten” rules that bind all members of the community of nations.
a.
Customary law is defined as that law resulting from the general and consistent practice of states followed from a sense of legal obligation. Customary international law and treaty law are equal in stature, with the later in time controlling.

b.
It is possible for a nation not to be bound by a customary norm of international law if that nation persistently objected to the norm as it was developing and continues to declare that it is not bound by that customary international law.

c.
Many principles of the law of war fall into this category of international law. Customary international law can also provide background with which to understand later codification of laws of war into treaty. Restatement of the Law, Third, Foreign Relations Law of the United States, 5 102. Therefore while much of the law of war is now codified, customary international law of war is still relevant.

2.     Conventional International Law. This term refers to codified rules binding on nations based on express consent. The term “treaty” best captures this concept, although other terms are used to refer to these: Convention, Protocol, and Attached Regulations.
a.
Norms of customary international law can either be codified by subsequent treaties, or emerge out of new rules created in treaties.

b.
Many law of war principles are both reflected in treaties, and considered customary international law. The significance is that once a principle attains the status of customary international law, it is binding on all nations, not just treaty signatories.

B.
While there are numerous law of war treaties in force today, most of them fall within two broad categories.

1.     The Targeting Method. This prong of the law of war is focused on regulating the means and methods of warfare, i.e. tactics, weapons, and targeting decisions.
a.
This method is exemplified by the Hague law, consisting of the various Hague Conventions of 1899 as revised in 1907, plus the 1954 Hague Cultural Property Convention and the 1980 Conventional Weapons Convention.

b.
The rules relating to the methods and means of warfare are primarily derived from articles 22 through 41 of the Regulations Respecting the Laws and Customs of War on Land [hereinafter HR] annexed to Hague Convention IV. HR, art. 22-4 1. Article 22 states that the means of injuring the enemy are notunlimited.

c.
Treaties. The following treaties, limiting specific aspects of warfare, are another source of targeting guidance. Several of these treaties are discussed more fully in the Means and Methods Outline section on weapons.

(1) Gas. Geneva Protocol of 1925 prohibits use in war of asphyxiating, poisonous, or other gases. The US reserved the right to respond with chemical weapons to a chemical attack by the other side. The more recent Chemical Weapons Convention (CWC), however, prohibits production, stockpiling, and use of chemical weapons (even in retaliation). The U.S. ratified the CWC in April 1997.
(2)Cultural Property. The 1954 Hague Cultural Property Convention prohibits targeting cultural property, and sets forth conditions when cultural property may be attacked or used by a defender.
(3)Biological Weapons. The 1925 Geneva Protocol prohibits biological weapons. However, the 1972 Biological Weapons Convention prohibits their use in retaliation, as well as production, manufacture, and stockpiling.
(4)Conventional Weapons. The 1980 Conventional Weapons Treaty restricts or prohibits the use of certain weapons deemed to cause unnecessary suffering or to be indiscriminate: Protocol I -non-detectable fragments; Protocol I1 -mines, booby traps and other devices; Protocol 111 -incendiaries; and Protocol IV- laser weapons. The U.S. has ratified the treaty by ratifying Protocols I and 11. The Senate is currently reviewing Protocols I11 and IV for its advice and consent to ratification. The treaty is often referred to as the UNCCW -United Nations Convention on Certain Conventional Weapons. As of 1 January 2003,90 nations are now Party to the Treaty. Protocols I, 11, 111, and IV have entered into force.
2.     The Protect and Respect Method. This prong of the law of war is focused on establishing non-derogable protections for the “victims of war.”
a.     This method is exemplified by the 4 Geneva Conventions of 1949. Each of these four “treaties” is devoted to protecting a specific category of war victims:
(1)GWS: Wounded and Sick in the Field.
(2)GWS Sea: Wounded, Sick, and shipwrecked at Sea.
(3)GPW: Prisoners of War.
(4)
GC: Civilians.

b.
The Geneva Conventions entered into force on 21 October 1950. The President transmitted the Conventions to the United States Senate on 26 April 195 1. The United States Senate gave its advice and consent to the Geneva Conventions on 2 August 1955.

3.     The “Intersection.” In 1977, two treaties were created to “supplement” the 1949 Geneva Conventions. These treaties are called the 1977 Protocols (GPI & GPII).
a.     Motivated by International Committee of the Red Cross’ belief that the four Geneva Conventions and the Hague Regulations insufficiently covered certain areas of warfare in the conflicts following WWII, specifically aerial bombardments, protection of civilians, and wars of
22

Chupter 2 Acmewovk ofLOCT.’
national liberation. While the purpose of these “treaties” was to supplement the Geneva Conventions, they in fact represent a mix of both the Respect and Protect method, and the Targeting method.
b. Status.
(1) As of December 2003, 161 nations have become Parties to GPI and 156 nations have become Parties to GPII.
(2)Unlike The Hague and Geneva Conventions, the U.S. has never ratified either of these Protocols. Portions, however, do reflect state practice and legal obligations –the key ingredients to customary international law.
c. U.S. Position:
(1)New or expanded areas of definition and protection contained in Protocols include provisions for: medical aircraft, wounded and sick, prisoners of war, protections of the natural environment, works and installations containing dangerous forces, journalists, protections of civilians from indiscriminate attack, and legal review of weapons.
(2)
US views the following Protocol I articles as either customaw international law or acceptable practice though not legally binding:

(a)
5 (appointment of protecting powers);

(b)
10 (equal protection of wounded, sick, and shipwrecked);

(c)
11(guidelines for medical procedures);

(d)
12-34 (medical units, aircraft, ships, missing and dead persons);

(e)
35(1)(2) (limiting methods and means of warfare);
(037 (perfidy prohibitions);

(g)
38 (prohibition against improper use of protected emblems);

(h)45 (prisoner of war presumption for those who participate in the hostilities);

(i)
51 (protection of the civilian population, except para. 6 –reprisals);

Cj) 52 (general protection of civilian objects);
(k)
54 (protection of objects indispensable to the survival of the civilian population);

(1)
57-60 (precautions in attack, undefended localities, and demilitarized zones);

(m)
62 (civil defense protection);

(n)
63 (civil defense in occupied territories);

(0)
70 (relief actions);

(p)
73-89 (treatment of persons in the power of a party to the conflict; women and children; and duties regarding implementation of GPI).

(3)The US specifically objects to the following articles:
(a)
l(4) (applicability to certain types of armed conflicts);

(b)
35(3) (environmental limitations on means and methods of warfare);

(c)
39(2) (use of enemy flags and insignia while engaging in attacks); (d)44 (combatants and prisoners of war (portions));

(e)
47 (non-protection of mercenaries);

(f)
5 5 (protection of the natural environment); and

(g)
56 (protection of works and installations containing dangerous iorces).

See Michael J. Matheson, The United States Position on the
Relation of Customary International Law to the 1977 Protocols
Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int’l & Pol’y
419, 420 (1987).
4. Regulations. Implementing targeting guidance for US Armed Forces is found in both Joint and Service publications. Joint Pub 3-60, FM 27- 10 (Army), NWP 1-14MRMFM 1-10 (Navy and Marine Corps).
Chapter -7 Franwvor-k oj L0I.b’
C. Key Terms.
1.
Part, Section, Article . . . Treaties, like any other “legislation,” are broken into sub-parts. In most cases, the Article represents the specific substantive provision.

2.
“Common Article.”     This is a critical term used in the law of war. It refers to a finite number of articles that are identical in all four of the 1949 Geneva Conventions. Normally these related to the scope of application and parties obligations under the treaties. Some of the Common Articles are identically numbered, while others are worded virtually the same, but numbered differently in various conventions. For example, the article dealing with special agreements is article 6 of the first three conventions, but article 7 of the Fourth Convention.

3.
Treaty Commentaries. These are works by official recorders to the drafting conventions for these major law of war treaties (Jean Pictet for the 1949 Geneva Conventions). These “Commentaries” provide critical explanations to many treaty provisions, and are therefore similar to “legislative history” in the domestic context.

D. Army Publications. There are three primary Army sources that reflect the rules that flow from “the big three:”
1.
FM 27-10: The Law of Land Warfare. This is the “MCM for the law of war. It is organized functionally based on issues, and incorporates rules from multiple sources.

2.
DA Pam 27-1. This is a verbatim reprint of The Hague and Geneva Conventions.

3.
DA Pam 27- 1-1. This is a verbatim reprint of the 1977 Protocols to the Geneva Conventions.

4.
Because these publications are no longer available, they have been compiled, along with many other key source documents, in the Law of War Documentary Supplement.

111. HOW THE LAW OF WAR IS TRIGERRED.
A. The Barrier of Sovereignty. Whenever international law operates to regulate the conduct of a state, it must “pierce” the shield of sovereignty.
1.
Normally, the concept of sovereignty protects a state from “outside interference with internal affairs.” This is exemplified by the predominant role of domestic law in internal affairs.

2.
However, in some circumstances, international law “pierces the shield of sovereignty, and displaces domestic law from its exclusive control over issues. The law of war is therefore applicable only after the requirements for piercing the shield of sovereignty have been satisfied.

3.
The law of war is a body of international law intended to dictate the conduct of state actors (combatants) during periods of conflict.

a.
Once triggered, it therefore intrudes upon the sovereignty of the regulated state.

b.
The extent of this “intrusion” will be contingent upon the nature of the conflict.

B.
The Triggering Mechanism. The law of war includes a standard for when it becomes applicable. This standard is reflected in the Four Geneva Conventions.

1.     Common Article 2 –International Armed Conflict: “[Tlhe present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. ”
a.
This is a true defacto standard. The subjective intent of the belligerents is irrelevant. According to the Commentary, the law of war applies to: “any difference arising between two States and leading to the intervention of armed forces.”

b.
Article 2 effectively requires that the law be applied broadly and automatically from the inception of the conflict. The following two facts result in application of the entire body of the law of war:

(l)A dispute between states, and
(2)Armed conflict (see FM 27- 10, paras. 8 & 9).
(a) De facto hostilities are what are required. The drafters deliberately avoided the legalistic term war in favor of the broader principle of armed conflict. According to Pictet, this article was intended to be broadly defined in order to expand the reach of the Conventions to as many conflicts as possible.
c.     Exception to the “state” requirement: Conflict between a state and a rebel movement recognized as belligerency.
(1) Concept arose as the result of the need to apply the Laws of War to situations in which rebel forces had the de facto ability to wage war.
(2)Traditional Requirements:
(a)
Widespread hostilities -civil war
+)Rebels have control of territory and pop!lati.on

(c)
Rebels have de facto government.

(d)Rebel military operations are conducted under responsible authority and observe the Law of War.
(e) Recognition by the parent state or another nation.
(3)
Recognition of a belligerent triggers the application of the Law of War, including The Hague and Geneva Conventions. The practice of belligerent recognition is in decline in this century. Since 1945, full diplomatic recognition is generally extended either at the beginning of the struggle or after it is successful (EX: The 1997 recognition of Mr. Kabila in Zaire).

d.
Controversial expansion of Article 2 –GPI.

(1)Expands Geneva Conventions application to conflicts previously considered internal ones: “[Alrmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination.” Art 1(4), GPI.
(2)U.S. has not yet ratified this convention because of objections to article l(4) and other articles. The draft of Protocol I submitted by the International Committee of the Red Cross to the 1974 Diplomatic Conference did not include the expansive application provisions.
e.     Termination of Application (Article 5, GWS and GPW; Article 6, GC). (1)Final repatriation (GWS, GPW).
(2) General close of military operations (GC).
(3)Occupation (GC) –The GC applies for one year after the general close of military operations. In situations where the Occupying Power still exercises governmental functions, however, that Power is bound to apply for the duration of the occupation certain key provisions of the GC.
2.     The Conflict Classification Prong of Common Article 3 –Conflicts which are not of an international character -internal armed conflict: “Armed conflict not of an international character occurring in the territory of one of the High Contracting Parties ….”
a.
These types of conflicts make up the vast bulk of the ongoing conflicts.

b.
Providing for the interjection of international regulation into a purely internal conflict was considered a monumental achievement for international law in 1949. But, the internal nature of these conflicts explains the limited scope of international regulation.

(1)Domestic law still applies -guerrillas do not receive immunity for their war-like acts, as would such actions if committed during an international armed conflict.
(2)Lack of effect on legal status of the parties. This is an essential clause without which there would be no provisions applicable to internal armed conflicts within the Cwwentions. Despite the r!ew Imguage, states have been reluctant to apply Article 3 protections explicitly for fear of conferring a degree of international legitimacy on rebels.
c.     What is an “Internal Armed Conflict?” Although no objective set of criteria exist for determining the existence of a non-international armed conflict, Pictet lists several suggested criteria:
(1)Some conflict is more like isolated acts of violence, riots or banditry.
(2)Pictet establishes non-binding criteria for determining whether any particular situation rises to the level of armed conflict:
(a)
The group must have an organization,

(b)The members must be subject to some authority exercised within the organization,

(c)
The group must control some territory,

(d)The group must demonstrate respect for the laws of war though this is more often accepted as the group must not demonstrate an unwillingness to abide by the laws of war, and
(e)
The government must be forced to respond to the group with its own armed forces.

d.
Protocol IS, which was intended to supplement the substantive provisions of Common Article 3, formalized the criteria for the application of that convention to a non-international armed conflict.

(1)Under responsible command.
(2)Exercising control over a part of a nation so as to enable them to carry out sustained and concerted military operations and to implement the requirements of Protocol 11.
C. How do the Protocols fit in?
1.     As indicated, the 1977Protocols to the Geneva Conventions of 1949 are supplementary treaties. Protocol I is intended to supplement the law of war related to international armed conflict, while Protocol I1 is intended to supplement the law of war related to internal armed conflict. Therefore:
a.
When you think of the law related to international armed conflict, also think of Protocol I;

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

2.     Although the U.S. has never ratified either of these Protocols, their relevance continues to grow based on several factors:
a.     The U.S. has stated it considers many provisions of Protocol I, and almost all of Protocol IS (all except for the limited scope of application in article l), to be customary international law. See Michael J. Matheson, Session One: The United States Position on the Relation of Customary
29
Chtrpter 2 Ftunmwrk of LO I,Y
International Law to the 1977Protocols Additional to the 1949 Geneva Conventions, 2 AM.U. J. INT’LL. POL’Y419,429-431 (1987).
b.
The argument that the entire body of Protocol I has attained the status of customary international law continues to gain strength.

c.
These treaties bind virtually all of our coalition partners.

d.
U.S. policy is to comply with Protocol I and Protocol I1 whenever feasible.

D.
U.S. Policy is to apply the principles and spirit of the Law of War during all operations, whether international armed conflict, internal armed conflict or situations short of armed conflict.

I.
DoD Directive 5 100.77 requires all members of the armed forces to “comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all operations.”

2.     CJCSI 5810.01B also states that “The Armed Forces of the U.S. . . . will comply with the law of war during all armed conflicts, however . . . characterized, and unless otherwise directed by competent authorities, principles and spirit . .. during OOTW.”
E.     What is the Relationship of the LOW with Human Rights?
1.
Human Rights Law refers to a totally distinct body of international law, intended to protect individuals from the arbitrary or cruel treatment of their government at all times.

2.
While the substance of human rights protections may be synonymous with certain law of war protections, it is critical to remember these are two distinct bodies of international law. The law of war is triggered by conflict. No such trigger is required for human rights law.

a.     These two bodies of international law are easily confused, especially because of the use of the term “humanitarian law” to describe certain portions of the law of war.
NOTES

NOTES

NOTES

NOTES

THE UNITED NATIONS AND LEGAL BASES FOR THE
USE OF FORCE

REFERENCES
1.
U.N. Charter

2.
Treaty Providing for the Renunciation of War as an Instrument of National Policy (Kellogg- Briand Pact), done at Paris, August 27, 1928, 46 Stat. 2343, T.S. No. 796,2 Bevans 732, L.N.T.S. 57

3.
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter af the Intenlatianal Military Tribuiisl (Nilrzmbug Charier), dune a1 London, August 8, 1945,59 Stat. 1544, 82 U.N.T.S. 279

4.
U.N. General Assembly Resolution 337(V), Uniting for Peace, 5 U.H. GAOR Supp. (No. 20) 10 (1950)

5.
U.N. General Assembly Resolution 2625, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, 25 U.H. GAOR Supp. (No. 28) 121 (1970).

6.
U.N. General Assembly Resolution 33 14, Defmition of Aggression, 29 U.H. GAOR Supp. (No 31) 142 (1974).

I. HISTORICAL BACKGROUND ‘
A. Just War Theory: 335 B.C. to 1800 A.D.
1. A moral/philosophical approach that approved of a resort to force if the cause was “just”.
B. State Sovereignty (“War as Fact” Era): 1800-1918
1.     War as an instrument of national policy. As sovereigns, states are free to employ force as a normal element of their foreign relations.
C. International Law (Early attempts to regulate the resort to force.)
1.
Hague (1 899 and 1907): Required a declaration of war.

2.
League ofNations (1919): Attempt at a collective security system.

3.
The Kellogg-Briand Pact (1928).

‘ See Chapter 1 “History for the Law of War” for a more in-depth discussion of the historical trends briefly touched upon in this chapter.
3 5
Cl1cqtc.r 3 Legd et1se.sjor the Use qf Force
a.
Renounced recourse to war.

b.
“Art. I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”

c.
Lacked any enforcement mechanism.

4. Post World War I1 Tribunals
a.     Nuremburg Charter: “Article 6. . . .The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINSTPEACE:namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; . . .”
11. INTRODUCTION
A. Origin of the United Nations.
1.     The name “United Nations” was devised by united States President Franklin
D. Roosevelt and was first used in the “Declaration by United Nations” of 1 January 1942, during the Second World War, when representatives of 26 nations pledged their Governments to continue fighting together against the Axis Powers.
2.
The United Nations Charter was drawn up by the representatives of 50 counhies a~ Lhe Uniled NaLions Zonlerenct: on in~ernaiionai G~ga~lizaiion, which met at San Francisco from 25 April to 26 June 1945. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks in August-October 1944. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States.

3.
The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories. United

36
Chuptvr 3 f,e,yul Buses ji~rii~eUse of Forcr
Nations Day is celebrated on 24 October each year. Extracted from: Basic
Facts About the United Nations, Sales No. E.95.1.31, reprinted at
https://www.un.org/Overview/origin.html.
111. OVERVIEW OF THE UNITED NATIONS CHARTER
A. General Assembly.
1.
Generally treated in Chapter IV of the Charter.

2.
May discuss and make recommendations on any matter within the scope of the Charter.

a.     Boweiier, il’the Security Council is exercising its powers over the situation, the General Assembly may not make a recommendation unless the Security Council so requests (Article 12(1)).
3.     Majority vote unless an “important question,” which requires a two-thirds vote. Important questions include recommendations with respect to the maintenance of international peace and security (Article 18(2)).
B. Security Council. ,
1.
Generally treated in Chapter V of the Charter.

2.
Created “to ensure prompt and effective action by the United Nations.” (Article 24(1))

3.
Fifteen members.

a.
Five permanent members: United States, United Kingdom, France, China, and Russia (as successor to USSR).

b.
Ten nonpermanent members elected to two-year terms by the General Assembly.

c.
Decisions require nine votes, and if a non-procedural matter, requires the concurring votes of the permanent members. When North Korea invaded South Korea in 1950, the Soviet Union’s delegate to the Security Council was absent (due to a dispute over China’s representation in the U.N.). The Security Council authorized collective security measures under the

U.N. Charter, and established the United Nations Command in Korea. The Soviet delegate returned and objected, arguing that the resolutions on
37
Chapter 3 Legd Bcues,for the lke ofForce
these non-procedural matters lacked their concurring vote. That argument
was rejected, and subsequent practice has confirmed that abstention or
absence (i.e., anything short of an affirmative veto) constitutes
concurrence.
C. Secretariat.
1.
Generally treated in Chapter XV of the Charter.

2.
The Secretary-General is the chief administrative officer, appointed by the General Assembly upon the recommendation of the Security Council. Article

97.
D. International Coui-t of Justice.
1.
Treated generally in Chapter XIV of the Charter.

2.
The ICJ is the principal judicial organ of the United Nations Article 92.

3.
Fifteen judges are elected by separate vote of the General Assembly and Security Council. Judges serve for nine years, and may be re-elected.

4.
The Statute of the ICJ is an annex to the U.N. Charter.

5.
Jurisdiction in a contentious case depends on the consent of the parties:

a.
Consent may be express or implied in a treaty or other agreement between the parties Statute Article 36(1).

b.
States may also accept compulsory jurisdiction, either unconditionally or on the condition of reciprocity on the part of other parties. Statute Article 36(2).

(1)The United States accepted compulsory jurisdiction, with conditions, in 1946. The acceptance was terminated in 1986.
6. “The decision of the Court has no binding force except between the parities and in respect to that particular case.” Statute Article 59.
IV. USE OF FORCE
A. Charter provisions.
1. Article 2(3).
a.
“All Members shall settle their international disputes by peacehl means in such a manner that international peace and security, and justice, are not endangered.”

b.
This provision has not been relied upon independent of those instances in which Article 2(4) is applicable. In other words, leaving a dispute unsettled, without the use or threat of force, has not been claimed to be a violation of Article 2(3).

2. Article 2(4).
a.
“All Members shall rcfrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

b.
Has become the basic provision restricting the use of force among states.

c.
Note that the prohibition refers to the “threat or use of force,” not “war” or “aggression.”

d.
What constitutes a “use of force”? Economic pressure? Computer network attack? (Western view tends to look at the kinetic effect or impact of an action to determine whether it is a “use of force”, however this view is subject to a great deal of debate.

e.
The “below the threshold” argument. If an attack is not against the “territorial integrity or political independence” of another state, it is not a violation of Article 2(4). In other words if an attackers goal is not to seize territory or overthrow the government, then the attack does not violate Article 2(4). Currently not a widely held view.

(1) But can this theory be applied to a War on Terrorism?
3. Article 2(7).
a.     “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
39
Chpter 3 Legal B~~ses,for Forcc
the lke cf
b.
Recognition of state sovereignty, but still contemplates Chapter VII actions which may affect sovereign prerogatives.

B.
General Assembly Resolution 2625.

1.
Reaffirmed and expanded upon the general Charter principles.

2.
Declared the principles stated in Article 2 of the Charter to be “basic principles,” or customary, international law.

V. MAINTAINING INTERNATIONAL PEACE AND SECURITY
A. Security Council.
1.
Granted “primary responsibility for the maintenance of international peace and security” (Article 24(1)). “The responsibility conferred is ‘primary,’ not exclusive. . . . The Charter makes it abundantly clear, however, that the General Assembly is also to be concerned with international peace and security.” Certain Expenses of the United Nations, 1962 I.C.J. 151, 163.

2.
Article 25: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

3.
Security Council’s specific powers are contained in Chapters VI and VII.

B. Chapter VI: Pacific Settlement of Disputes.
1.
Chapter focuses on “disputes” (not otherwise defined), especially those which, if unresolved, are likely to threaten international peace and security.

2.
Article 33. Obligates Members to seek peaceful settlement to any dispute and authorizes the Security Council to call upon parties to settle.

3.
Article 34. Authorizes the Security Council to investigate any dispute or situation to determine whether or not it is likely to endanger international peace and security.

4.
Article 36. Authorizes the Security Council to make recommendations on procedures and methods for settlement of any dispute which has been referred to it by parties / Members.

5.
Article 37. Authorizes the Security Council to make specific recommendations for resolution of the dispute where parties 1 Members have failed to do so under the provisions of Article 36.

C. Chapter VII: Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.
1.
This Chapter gives the Security Council the power to employ non-military or military measures to restore or maintain international peace and security.

2.
Article 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 4 1 and 42, to maintain or restore international peace and security.”

a.     Threshold issue: The existence of a “threat to the peace, breach of the peace, or act of aggression.”
(1)General Assembly Resolution 3314 recommended to the Security Council a definition of “aggression”: ” …the use of armed force by a state against the sovereignty, territorial integrity, or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
(a) Art. 2: first use of armed force by a State in contravention of the Charter is primafacie evidence of an act of aggression.
(b)Art. 3: other acts constituting aggression include:
(i)  Bombardment;
(ii)  Blockade;
(iii)  Land, sea or air attack;
(iv)  Using armed forces of one state, which are located within the

territory of another (receiving) state under agreement, in contravention of the terms of that agreement; or
(v)     Allowing use of state territory, which is placed at the disposal of another state, to be used by that state for perpetration of an act of aggression against a third state.
41
Chupter 3 Legd Btrses for tlze Use of Force
3.
Article 4 1:Authorizes measures short of use of armed force 1military intervention and allows the Security Council to call upon all Members to apply such measures. Includes, but is not limited to, “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

4.
Article 42: Authorizes “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,” including “demonstrations, blockades, and other operations by air, sea or land forces, by Members of the United Nations.”

5.
Article 43: Provides for special agreements between Members and the U.N. to provide armed forces, assistance, and facilities necessary for the purpose of maintaining international peace and security.

D. Chapter VIII -Regional Arrangements.
1.
Article 52: Recognized the existence of regional organizations (e.g., Organization of American States, Arab League, Organization of African Unity), and encourages the resolution of local disputes through such arrangements.

2.
Article 53: The Security Council may utilize regional arrangements for enforcement actions; regional organizations may not undertake enforcement actions without Security Council authorization.

E.     General Assembly Resolution 337(V), “Uniting for Peace.”
“. . . if the Security Council, because of a lack of unanimity of the
p~riii~c~i

iileiiiber~, fails to exercisc its primai-y responsibility 5;the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.”
F.     Examples of Claimed Chapter VII Uses of Force
1.     Iraq (1990) (Desert Shield / Desert Storm) Iraq invasion of Kuwait.
a.
UNSCR 660: “The Security Council .. .determining that there is a breach of the peace by the Iraqi invasion of Kuwait.. . .” (Article 39 trigger).

b.
UNSCR 678: “Authorizes Member States cooperating with the government of Kuwait, unless Iraq on or before January 15, 1991 fully implements.. .the foregoing resolutions, to use all necessary means to uphold and implement [UNSCR] 660 and all subsequent resolutions and to restore international peace and security in the area.. .

2.
Haiti (1994):     UNSCR 940 authorized states to use all necessary means to facilitate the departure from Haiti of the military leadership.. .and to effect the prompt return of the legitimately elected President.

3.
Kosovo (1998):

a.
Recognized as threat to international peace and security. Art 39 trigger.

b.
Demanded Serbia comply with the October 1998 peace agreement.

c.
Did not authorize “all means necessary.”

d.
Did not authorize regional enforcement actions.

4. Afghanistan (2001)
a.     UNSCR 1368:
(1)
Condemned 9111 attack,

(2)
Calls on all states to work together to bring perpetrators to justice,

(3)
Calls upon all states to redouble efforts to suppress terrorist acts, and

(4)
Expresses the Security Council’s readiness to take all necessary steps to respond to the attack.

b.
UNSCR 1373: Decides that all states shall:

(1)
Prevent and suppress the financing of terrorist acts,

(2)
Take the necessary steps to prevent the commission of terrorist acts, and

(3)
Deny safe haven to terrorists.

c.
No use of the “all necessaiy means” language.

Chprer 3 Legd Bmes,for the Use of Force
5. Iraq (2003)
a.
UNSCR 678: “Authorizes Member States cooperating with the government of Kuwait, unless Iraq on or before January 15, 199 1 hlly implements.. .the foregoing resolutions, to use all necessary means to uphold and implement [UNSCR] 660 and all subsequent resolutions and to restore international peace and security in the area.. . (Still in effect from Desert Storm.).

b.
UNSCR 687: Established cease fire conditions. Among them a continuing obligation to eliminate and account for their WMD program. Never terminated the authority to use force established in 678.

c.
UNSCR 1441: Affirmed that Iraq has been and remains in material breach of UNSCR 687. Iraq given one final opportunity to fully comply, or else face “serious consequences.”

VI. SELF DEFENSE AND OTHER USES OF FORCE
A. Self Defense.
1.
Article 5 1 :”Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

2.
Prerequisites / Criteria:

a.
Necessity: peaceful means of resolution exhausted.

b.
Proportionality: force utilized must be limited in scope, intensity, and duration to that which is reasonably necessary to counter the attack or neutralize the threat.

c.
Timeliness: proximity to the hostile act.

3. With the general acceptance of the prohibition on the use or threat of force (Article 2(4)), self-defense has become the focus of contention.
a.
Those arguing for a broad or expansive right of self defense generally believe that it provides greater deterrence, international stability, and ultimately less uses of force.

b.
Those arguing for a limited right of self-defense are concerned that a broader interpretation erodes the basic prohibition against the unilateral use of force.

c.
There is a lingering issue regarding whether Article 5 1 completely codified the right of self-defense or if there is some remainder of the pre- exisiing “inllereni” righi ouiside ihe Charier?

d.
The definition of an “Armed attack” and whether the right of self-defense is triggered when there is something than an armed attack is unclear. For example, in Military and Paramilitary Activities In and Around Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14, the ICJ decided that Nicaragua’s provision of arms to the opposition in El Salvador was not an armed attack.

e.
“Until the Security Council has taken measures”: When the Security Council was stalemated during the Cold War, this was rarely an issue. Now that the Security Council is more active and effective, it is not clear what level of UN Security Council action would extinguish a State’s right to continue its self-defense. The US. view is that the Security Council must take “effective” action.

4. Anticipatory self-defense.
a.
Refers to the concept that self defense is permissible in anticipation of an armed attack.

b.
Classic statement of the requirements for anticipatory self defense made by Secretary of State Daniel Webster in correspondence relating to the Caroline incident: self defense in anticipation of an actual attack should be confined to cases in which “the necessity of that self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

c.
State prachce has not respected the restrictive Webster formulation of the

right. Two cases in point: the Israel1
45

,Li( 01
l/hl\ , I J 6,
attack on the Iraqi reactor in 1981 (Israel contended that the reactor would
give Iraq a nuclear weapons capability which would be used against
Israel); the U.S. bombing of Libya in 1986 (in which part of the
justification for the attack was the desire to prevent Libya from exporting
terrorism in the future).
d. CJCSI 3 121.01A, Standing Rules ofEngagement for US. Forces, implements anticipatory self-defense in the concept of “hostile intent,” by which U.S. forces may respond with force to the threat of force.
5. Examples of Claimed Article 5 1 Uses of Force
a.     Israel-Iraq (1 98 1)
(1)
Iraq building a nuclear reactor at Osirak.

(2)
Israel attacked and destroyed the site 6-9 months prior to completion.

(3)
Unanimous UNSC condemnation.

(4)
Does it matter that Israel and Iraq were technically still “at war” as a result of events 8 years earlier?

b.
Libya (1986)

(1)
December 1985: Abu Nidal terrorists conducted bombings at the Rome and Vienna Airports.

(2)
4 April 1986: Bombing at “La Belle Disco” in Berlin. (Club was kequenied by American mi1iial.y pei.so~me1.j

(3)
5 April 1986: Communications intercepted between the bombers and Libyan government officials in Tripoli.

(4)
14 April: Operation El Dorado Canyon. Air and Naval assets struck targets in and around Tripoli.

(5)
President Reagan announced, “These strikes were conducted in the exercise of our right of self-defense under Article 5 1 of the United Nations Charter. This necessary and appropriate action was a preemptive strike.. .designed to deter acts of terrorism by Libya.. .”

46
Clhupter 3 I,c& Buse.r.fbr. the Use of Force
c.     Iraq (1993)
(1)
14 April 1993: Kuwaiti authorities thwart a plot to assassinate former President Bush when he visits Kuwait.

(2)
26 June 1993: US launches 23 Tomahawk missiles at Iraqi intelligence Headquarters from ships in the Persian Gulf and Red Sea.

(3)
Secretary of State Albright: “We responded directly, as we were entitled to do under Article 5 1 of the U. N. Charter, which provides for the exercise of self-defense in such cases.. .Our response has been proportional and aimed at targets directly linked to the operation against President Bush.. .”

d.
Afghanistan and Sudan (1998)

(1)
US Embassies in Kenya and Tanzania were attacked.

(2)
Approximately 10 days later, U.S. Naval forces strike terrorist training camps in Afghanistan and a chemical production facility in the Sudan.

e.
Afghanistan (200 1): Operation Enduring Freedom.

(1)
Post 911 1 operations against the a1 Qaida terrorist network and the Taliban regime, which gave them safe haven.

6. Pre-emptive uses of Force
a.
The National Security Strategy of the United States of America (September 2002). “The gravest danger our Nation faces lies at the crossroads of radicalism and technology. Our enemies have openly declared that they are seeking weapons of mass destruction, and evidence indicates that they are doing so with determination. The United States will not allow these efforts to succeed. We will build defense against ballistic missiles and other means of delivery. We will cooperate with other nations to deny, contain and curtail our enemies’ efforts to acquire dangerous technologies. And, as a matter of common sense and self- defense, America will act against such emerging threats before they are fully formed.”

b.
“We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”

47
Clupter 3 Legcd Bmesfor the Use of Force
c.
“The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater the risk of inaction-and more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.”

B.
Humanitarian intervention. Although not universally recognized, some States contend that there exists a right to intervene within the territory of another State (without that State’s consent, and without Security Council sanction) in order to prevent certain large-scale atrocities or deprivations. The argument is that such intervention does not violate Article 2(4) because the purpose is not to affect the territorial integrity or political independence of the State. The intervening State bears the heavy burden of proving its “pure motive.”

C.
Protection of nationals. Protection of nationals has aspects of both self-defense and humanitarian intervention. The State in which the nationals reside has the primary responsibility for providing protection within its territory, and it would only be in cases in which that State was unable or unwilling to provide protection that another State would be justified in intervening. This issue is most likely to be addressed during a Non-Combatant Evacuation Operation

(NW.
NOTES

L’lrclp1″-3
Legal Bmesfor the (Ise qf’Fo’or.cc

NOTES

Chapter 3
I c,& Buses for the Use oj Force

GENEVA CONVENTION I: WOUNDED AND SICK IN THE

FIELD
REFERENCES
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces
of the Field, August 12, 1949, T.I.A.S. 3362. (GWS)
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked
hlembcrs of Ainlcd Forces ;t Sco, August 12, 1949, T.I.A.S. 3363. (CWS (Sea))
The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M. 1391,
DA Pam 27- 1-1. (GP I & 11)
Commentary on the Geneva Conventions (Pictet ed. 1960).
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956).
Dept. of Army, Pamphlet 27- 1 -1, Protocols to The Geneva Conventions of 12 August 1949 (1
September 1979).
Dept. of Army, Pamphlet 27-161-2, International Law, Volume I1 (23 October 1962).
Dept. of Army, Field Manual 27-10, The Law of Land Warfare (18 July 1956).
Dept. of Army, Field Manual 4-02, Force Health Protection in a Global Environment (13
February 2003).
Naval Warfare Publication 1-14IWMCWP 5-2.1/COMDTPUB P5800.1 (Annotated Supplement),
The Commander’s Handbook on the Law of Naval Operations (15 November 1997).

11.
Air Force Pamphlet 110-3 1, International Law -The conduct of Armed Conflict and Air Operation (19 November 1976).

12.
Morris Greenspan, THE MODERN LAWOF LANDWARFARE(1959).

13.
Dietrich Schindler & Jiri Toman, THE LAW OF ARMEDCONFLICT(1988).

14.
Hilaire McCoubrey, INTERNATIONAL LAW (1 990).

HUMANITARIAN

15.
Howard S. Levie, THE CODE OF INTERNATIONALARMEDCONFLICT

(1986).

16.
Alma Baccino-Astrada, MANUAL ON THE RIGHTSAND DUTIES PERSONNEL

OF MEDICAL IN ARMED CONFLI(~TS
(1982).
17. Dept. of Army, Field Manual 8-42, Combat Health Support in Stability Operations and Support Operations (27 October 1997).
VII. INTRODUCTION.
A. Background
1. Henry Dunant: A Memory of Solferino.
a. 1864 Geneva Convention.
(1)
10 Articles.

(a)
Military ambulances and hospitals are neutral. (b)Personnel and Chaplains are neutral.

(i)
Repatriation is the rule.

(c)
Wounded.

(i)
Must be cared for.

(ii)
Repatriation if:

(a)
Incapable of hrther service. (b)Agree not to take up arms again.

B.
Definition (1949 Convention).

1.
The term “Wounded and Sick” is not defined in the GWS. Concerned that any definition would be misinterpreted, the drafters decided that the meaning of the words was a matter of “common sense and good faith.” Pictet at 136.

2.
However, Article 8(a), Protocol I, contains the following widely accepted definition: “Persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.”

3.
GWS (Sea) applies same protections to those “shipwrecked” at sea -shipwrecked meaning “shipwreck from any cause and includes forced !andings at sea by or frorr, aircraft.” (Art. !3). P.rticle 8(5),Protoco! I provides a more detailed definition of “shipwrecked” which is similar to the “wounded and sick” definition above. Once put ashore, “shipwrecked” forces become “wounded and sick” forces under the GWS. (GWS (Sea), Art.

4).
C. Scope of Application. For the protected persons who have fallen into the hands of the enemy, the GWS applies until their final repatriation. GWS, Art. 5.
VIII. CATEGORIES OF WOUNDED AND SICK.
A. Protected Persons (Article 13) -same as Article 4, GPW
1.
Members of armed forces of a Party to the conflict, . . . militias [and]
volunteer corps forming part of such armed forces.

2.
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict . . . provided [they] fulfill the following conditions:

a.
that of being commanded by a person responsible for his subordinates; b, that of having a fixed distinctive sign recognizable at a distance;

c.
that of carrying arms openly;

d.
that 3f conducting their operations in accxdancc nit!; thc laws ad customs of war.

3.
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4.
Persons who accompany the armed forces without actually being members thereof . . . provided they have received authorization from the armed forces which they accompany. . . .

5.
Members of crews . . . of the merchant marine and . . . civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law.

6.
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces . . . provided they carry arms openly and respect the laws and customs of war.

B. Civilians.
1.
Not expressly covered by GWS -but have general protection as noncombatants -may not be targeted (unless they abrogate their status by their actions.)

2.
Express coverage is found, however, in the Geneva Conventions on Civilians (GC), Article 16: “The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.” See G.I.A.D. Draper, THEREDCROSS CONVENTIONS

OF 1949 74 (1958).

3.
Article 8(a), Protocol I (GP I) expressly included civilians within its
definition of “wounded and sick.”

53

Chrrp1c.i. 4 Wounded triztl Sick
4. Thus, as a practical matter, all wounded and sick, military and civilian, in the hands of the enemy must be respected and protected. FM 27-10, at para. 208; FM 4-02, para. 4-4.
M. THE HANDLING OF THE WOUNDED AND SICK.
A. Protection (Article 12).
1. General -“Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances.”
a. Respect -to spare, not to attack.
(1)During the Vietnam conflict there were several examples of violations of this prohibition, e.g., during the November 1965 battle in Ia Drang Valley pitting regular North Vietnamese (NVA) units against units of the lStCavalry Division there were several accounts of NVA personnel shooting wounded Americans lying on the battlefield. Moore, WE WERE SOLDIERS AND YOUNG(1993).
ONCE
(2)During the Falklands War, international humanitarian law was generally well followed but there was an incident where two lightly armed British helicopters accompanying a supply ship were shot down and Argentinean forces continued to fire on the helicopter crewmen as they struggled in the water. Three of the crewmen were killed, and the fourth was wounded. Soon after this incident an Argentinean flyer was shot down. British leadership ensured proper treatment despite some reprisal suggestions. Robert Higginbotham, Case Studies in the Low of Land Wnrfnre TI. The Campaign in the Falklands. Military Review 52-53 (Oct 1984).
b. Protect -to come to someone’s defense; to lend help and support.
(1)An excellent example of this concept occurred in the Falklands when a British soldier came upon a gravely wounded Argentinean whose brains were leaking into to his helmet. The British soldier scooped the extruded material back into the soldier’s skull and evacuated him. The Argentinean survived. Higginbotham at 50.
(2) Extent of Obligation -It is “unlawful for an enemy to attack, kill, ill treat or in any way harm a fallen and unarmed soldier, while at the same time . . . the enemy [has] an obligation to come to his aid and give him such care as his condition require[s].” Pictet at 135.
B. Care (Article 12).
1. Standard is one of humane treatment -“[Elach belligerent must treat his Fallen adversaries as he would the wounded of his own army.” Pictet at 137.
C. Abandoning Wounded and Sick to the Enemy (Article 12).
1.
If, during a retreat, a commander is forced to leave behind wounded and sick, he is required to leave behind medical personnel and material to assist in their care.

2.
“[Als far as military considerations permit” -provides a limited military necessity exception to this requirement. Thus a commander need not leave behind medical personnel if such action will leave his unit without adequate medical staff. Nor can the enemy refuse to provide medical care to abandoned enemy wounded on the grounds that the enemy failed to leave behind medical personnel. The detaining power ultimately has the absolute respect and protect obligation. Pictet at 142.

D. Order of Treatment (Article 12).
1. Determined solely by reasons of medical urgency. Designed to strengthen the principle of equal treatment articulated above.
a.
Treatment is accorded using triage principles which provide the greatest medical assets to those with significant injuries who may benefit from treatment, while those wounded who will die no matter what and those whose injuries are not serious are given lesser priority.

b.
The US applies this policy at the evacuation stage, as well as at the treatment stage. “Sick, injured, or wounded EPWs are treated and evacuated through normal medical channels, but are physically segregated from US or allied patients. The EPW patient is evacuated from the combat zone as soon as his medical condition permits.” Dep’t of Army Field Manual 8-10-6, Medical Evacuation in a Theater of Operations, appendix A- 1 (31 October 1% 1).

c.
During Operation JUST CAUSE, wounded Panamanian Defense Force personnel were evacuated on the same aircraft as US personnel and provided the same medical care as US forces. Lessons Learned:

55 Chapter 4
Woz~nrleiiimd Sick
Operation JUST CAUSE, Unclassified Executive Summary, p. 7 (24 May 1990) (on file at TJAGSA).
d.
In the Falklands the quality of medical care provided by the British to the wounded, without distinction between British and Argentinean, was remarkable. More than 300 major surgeries were performed, and 100 of these were on Argentinean soldiers. Higginbotham at 50.

e.
Unfortunately, as pointed out by Professor Levie citing the example of the Japanese during World War 11, “this humanitarian procedure [referring to treating enemy wounded like your own] is far from being universally followed.” Howard S. Levie, PRISONERS

OF WARTNINTERNATIONAL ARMEDCONFLICT,100 (1976).
2.
Medical personnel must make the decisions regarding medical priority on the basis of their medical ethics. Baccino-Astrada at 40. This standard is reiterated in Article 10, Protocol I for emphasis.

3.
Triage Categories (FM 8-42 at para. J-3):

a.
Immediate. Condition demands immediate resuscitative treatment. Generally the procedures are short in duration and economical in terms of medical resources. Example: control of a hemorrhage from an extremity. (Note: NATO divides this category into two groups: Urgent: quick short duration life saving care, which is first priority; and Immediate: which require longer duration care to save a life.)

b.
Delayed. Treatment can be delayed for 8-10 hours w/o undue harm. Examples: Soft tissue injuries requiring debridement; maxillofacial injuries without airway compromise; eye and central nervous system injuries.

c.
Minimal (or Ambulatory). Next to last priority for medical officer care; but head of the line at the battle dressing station. (Can be patched up and returned to the lines in minutes.) (Major difference with civilian triage.)

d.
Expectant. Injuries are so extensive that even if they were the sole
casualty, survival would be unlikely.

4. No adverse distinctions may be established in providing care.
a.
May not discriminate against wounded or sick because of “sex, race, nationality, religion, political opinions, or any other similar criteria.”

b.
Note the use of the term “adverse” permits favorable distinctions, e.g., taking physical attributes into account, such as in the case of children, pregnant women, the aged, etc..

5. The wounded and sick “shall not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.”
a.
The first prohibition stems from a recognition that wounded personnel, who had not yet received medical treatment, “were profitable subjects for interrogation.” Draper at 76. Professor Draper cites the German practice during World War I1 at their main aircrew interrogation center. They frequently delayed medical treatment until after interrogation. Such conduct is now expressly forbidden.

b.
The second prohibition was designed to counter the German practice of sealing off Russian PW camps once typhus or tuberculosis was discovered.

E.
Status of Wounded and Sick (Article 14).

1.
The wounded or sick soldier enjoys the status of a PW. Actually the soldier will be protected under both the GWS and the GPW until recovery is complete, at which time the soldier is exclusively governed by the GPW.

2.
While the conventions overlap, i.e., during the treatment and recovery phase, the GWS takes precedence. But, as Pictet states, this is an academic point as the protections in both are largely the same. Pictet at 147.

F.     Search for Casualties (Article 15).
1.     Search, Protection, and Care.
a.     “At all times, and particularly after an engagement.” Parties have an ongoing obligation to search for the wounded and sick as conditions permit. The commander determines when it is possible to do so. This mandate applies to &lcasualties, not just friendly casualties.
(1)The drafters recognized that there were times when military operations would make the obligation to search for the fallen impracticable. Pictet at 15 1.
(2)By way of example, US policy during Operation DESERT STORM was not to search for casualties in Iraqi tanks or armored personnel carriers because of concern about unexploded ordnance.
(3)Similar obligations apply to maritime operations (Article 18, GWS (Sea)). It was through this military necessity exception that HMS Conqueror did not assist the shipwrecked members of the Argentinean cruiser General Belgrano after its torpedo attack against it. The Conqueror was reasonably concerned about the threat of a destroyer attack if it lingered in the area. Admiral Sandy Woodward, ONE HUNDRED
DAYS162 (1992). Professor Draper explicitly states that “[Ilt is apparent that submarines will rarely be in a position to search for and collect the wounded or shipwrecked. Neither has such a craft the facilities for ensuring their adequate care. Further, the search for shipwrecked by even larger ships is operationally a very dangerous proceeding, exposing the search vessel to the grave risk of submarine attack by day or night and to air attack by day.” Draper at 87.
b.
The protection requirement refers to preventing pillage of the wounded by the “hyenas of the battlefield.”

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

d.
Note that the search obligation also extends to searching for the dead, again, as militaw conditions permit. During the Falklands War the Argentineans were scrupulous in handling of the dead. A Harrier pilot was killed over Goose Green and buried with military honors. Higginbotham at 5 1.

2.     Suspensions of Fire and Local Agreements.
a.
Suspensions of fire are agreements calling for cease-fires that are sanctioned by the Convention to permit the combatants to remove, transport, or exchange the wounded, sick and the dead (note that exchanges of wounded and sick between parties did occur to a limited extent during World War 11. Pictet at 155).

b.
Suspensions of fire were not always possible without negotiation and, sometimes, the involvement of staffs up the chain of command. Consequently, local agreements, an innovation in the 1949 convention to broaden the practice of suspensions of fire by authorizing similar

agreements at lower command levels, are sanctioned for use by local on- scene commanders to accomplish the same function.
c.
Article 15 also sanctions local agreements to remove or exchange wounded and sick from a besieged or encircled area, as well as the passage of medical and religious personnel and equipment into such areas. The GC contains similar provisions for civilian wounded and sick in such areas. It is this type of agreement that has been used to permit the passage medical supplies to the city of Sarajevo during the siege of 1992.

G.
Identification of Casualties (Articles 16-17).

1.
Parties are required, as soon as possible, to record the following information regarding the wounded, sick, and the dead: name, ID number, DOB, date and place of capture or death, and particulars concerning wounds, illness, or cause of death.

2.
Forward information to Prisoners of War Information Bureau (SeeArticle 122, GPW). Information Bureaus are established by Parties to the conflict to transmit and to receive information/articles regarding PWs totfrom the ICRC’s Central Tracing Agency. The US employs the National PW Information Center (NPWIC) in this role.

3.
In addition, Parties are required to forward the following information and materials regarding the dead:

a.
Death certificates.

b.
ID disc.

c.
Important documents, e.g., wills, money, etc., found on the body.

d.
Personal property found on the body.

4.     Handling of the Dead.
a.
Examination of bodies (a medical examination, if possible) to confirm death and to identify the body. Such examinations can play a dispositive role in refuting allegations of war crimes committed against individuals. Thus, they should be conducted with as much care as possible.

b.
No cremation (except for religious or hygienic reasons).

c.
Honorable burial. Individual burial is strongly preferred; however, there is a military necessity exception which permits burial in common graves, e.g., if circumstances, such as climate or military concerns, necessitate it. Pictet at 177.

d.
Mark and record grave locations.

H.
Voluntary Participation of Local Population in Relief Efforts (Article 18).

1.
Commanders may appeal to the charity of local inhabitants to collect and care for the wounded and sick. Such actions by the civilians must be voluntary. Similarly, commanders are not obliged to appeal to the civilians

2.
Spontaneous efforts on the part of civilians to collect and care for the wounded and sick is also permitted.

3.
Ban on the punishment of civilians for participation in relief efforts. This provision arose from the fact that the Germans prohibited German civilians from aiding wounded airmen.

4.
Continuing obligations of occupying power. Thus, the occupant cannot use the employment of civilians as a pretext for avoiding their own responsibilities for the wounded and sick. The contribution of civilians is only incidental. Pictet at 193.

5.
Civilians must also respect the wounded and sick. This is the same principle discussed above (article 12) vis-A-vis armed forces. This is the only article of the convention that applies directly to civilians. Pictet at 191.

X.     STATUS AND PROTECTION OF PERSONNEL AIDING WOUNDED
AN13 SICK.

A. Categories of Persons Protected Based Upon Rights Possessed.
1. The first category: (Article 24) Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease; staff exclusively engaged in the administration of medical units and establishments; chaplains; and personnel of national Red CrossICrescent Societies and other recognized relief organizations (Article 26).
a. Respect and protect (Article 24) -applies “in all circumstances.” In
Vietnam US soldiers claimed that the NVA and Vietcong targeted 60
Chupter 4 I.l’o~ii7rkdmd Szck
medical personnel because of their importance in maintaining morale. They’d shoot medics even if they were giving care. Consequently medics often avoided wearing armbands which acted as bulls-eyes. There were even reports that the Vietcong paid an incentive for killing medics. Eric
M. Bergerud, REDTHUNDER, LIGHTNING: OF A
TROPIC THE WORLD
COMBAT IN VIETNAM

DIVISION 20 1-03 (1 993).
b. Status upon capture (Article 28) -Retained Personnel, not PWs.
(l)A new provision in the 1949 convention. The 1864 and 1906 conventions required immediate repatriation. The 1929 convention also required repatriation, absent an agreement to retain medical personnel. During World War 11, the use of these agreements became extensive, and very few medical personnel were repatriated. Great Britain and Italy, for example, retained 2 doctors, 2 dentists, 2 chaplains, and 12 medical orderlies for every 1,000 PWs.
(2) The 1949 convention institutionalized this process. Some government experts proposed making medical personnel straight PWs, the idea being that wounded PWs prefer to be cared for by their countrymen, speaking the same language. The other camp, favoring repatriation, cited the traditional principle of inviolability-that medical personnel were non-combatants. What resulted was a compromise: medical personnel were to be repatriated, but if needed to treat PWs, they were to be retained and treated, at a minimum, as well as PWs. Pictet at 238-40.
(3)Note that medical personnel may only be retained to treat PWs. Under no circumstances may they be retained to treat enemy personnel. While the preference is for the retained persons to treat PWs of their own nationality, the language is sufficiently broad to permit retention to treat any PW. Pictet at 241.
c. Repatriation of Medical Personnel(Artic1es 30-3 1).
(1)Repatriation is the rule; retention the exception. Medical personnel are to be retained only so long as required by the health and spiritual needs of PWs and,then are to be returned when retention is not indispensable. Pic.tet at 260-61.
(2)Article 3 1 states that selection of personnel for return should be irrespective of race, religion or political opinion, preferably according to chronological order of capture-first-idfirst-out approach.
(3)Parties may enter special agreements regarding the percentage of personnel to be retained in proportion to the number of prisoners and the distribution of the said personnel in the camps. The US practice is that retained persons will be assigned to PW camps in the ratio of 2 doctors, 2 nurses, 1 chaplain, and 7 enlisted medical personnel per 1,000 PWs. Those not required will be repatriated. See, AR 190-810PNAVINST 346 1.6lAFJI 3 1-3O4MCO 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1 November 1997.
(4)
Since World War 11, this is one of the least honored provisions of the convention. US medical personnel in Korea and Vietnam were not only not repatriated, but were also denied retained person status. Memorandum of W. Hays Parks to Director, Health Care Operations reprinted in The Army Lawyer, April 1989, at 5.

d.
Treatment of Medical Personnel(Artic1e 28).

(1)May only be required to perform medical and religious duties.
(2)Receive at least all benefits conferred on PWs, e.g., pay, monthly allowances, correspondence privileges. AR 190-8.
(3)Are subject to camp discipline.
e.
Relief (Article 28). Belligerents may relieve doctors retained in enemy camps with personnel from thc home country. During WC:!~ Wzir I1 somc Yugoslavian and French doctors in German camps were relieved. Pictet at 257.

f.
Continuing obligation of detaining power (Article 28). The detaining power is bound to provide free of charge whatever medical attention the PWs require.

2.     The second category: Auxiliary medical support personnel of the Armed Forces (Articles 25 & 29).
a.     These are personnel who have received special training in other medical specialties, e.g., orderlies, nurses, stretcher bearers, in addition to
62
Clmptc’r -/
CTio~u7~ieti
md Sic/<
performing other military duties. (While only Article 25 specifically
refers to nurses, nurses are Article 24 personnel if they meet the “exclusively engaged” criteria of that article.).
b.
Respect and protect (Article 25) -when acting in medical capacity.

c.
Status upon capture (Article 29) -PWs; however, must be employed in medical capacity insofar as a need arises.

d.
Treatment (Article 29).

(1)When not performing medical duties, treat as PWs.
(2) When performing medical duties, they rernair, PWs, but receive treatment under Article 32, GPW, as retained personnel; however, they are not entitled to repatriation.
(3)Auxiliaries are not widely used, but see W. Hays Parks memorandum, supra, for discussion of certain US personnel, who defacto, become auxiliary personnel. Seealso FM 4-02 at para. 4-5b (discusses this same issue and points out that Article 24 personnel switching between medical and non-medical duties at best places such individuals in the auxiliary category.).
(4)The US Army does not have any personnel who officially fall into the category identified in Article 25. FM 4-02 at para. 4-5b. Air Force regulations do provide for these personnel. SeeBruce T. Smith, Air Force Medical Personnel and the Law of Armed Conflict, 37 A. F. L. Rev. 242 (1994).
3.     The third category: Personnel of aid societies of neutral countries (Articles 27 & 32).
a.     Nature of assistance: procedural requirements (Article 27).
(1)
Consent of neutral government.

(2)
Consent of party being aided.

(3)Notification to adverse party.
b.
Retention prohibited (Article 32) -must be returned “as soon as a route for their return is open and military considerations permit.”

c.
Treatment pending return (Article 32) -must be allowed to perform medical work.

Cl~tptc~r Wounded mti Sick
XI. MEDICAL UNITS AND ESTABLISHMENTS.
A. Protection.
1. Fixed Establishments and Mobile Medical Units (Article 19).
a. May not be attacked, provided they do not abrogate their status.
(1) In Afghanistan, the Soviets engaged in a campaign to destroy hospitals and dispensaries operated by non-governmental organizations (Medecins sans Frontieres, Medecins du Monde, Aide Medicale Internationale -all NGOs comprised of French doctors and nurses). In September of 1980, the Soviets sacked the hospital at Yakaolang, even destroying all medical supplies and equipment. In late 1981 the Soviets systematically bombed hospitals operated by French medical organizations. At least 8 hospitals of the three NGOs above were hit. One was rebuilt with a prominent red cross, but was still bombed again by Russian helicopters. Helsinki Watch, TEARS, BLOOD,AND CRTES, HUMANRIGHTSIN AFGHANISTAN 1979- 1984, at
SNCE THE INVASION 184-6.
(2)In Vietnam during the 1968 Tet offensive, communist forces attacked the 45th MASH at Tay Ninh, killing one doctor and two medics. Bergerud at 206.
b.
Commanders are encouraged to situate medical units and establishments away from military objectives. See also Article 12, GP I, which states that medical units will, in no circumstances, be used to shield military objectives from attack.

c.
If these units fall into the hands of an adverse party, medical personnel will be allowed to continue caring for wounded and sick.

2.     Discontinuance of Protection (Article 2 1).
a.
These units/establishments lose protection if committing “acts harmful to the enemy.” Pictet cites as examples such acts as using a hospital as a shelter for combatants, as an ammunition dump, or as an observation post. Pictet at 200-01.

b.
Protection ceases only after a warning has been given and it remains unheeded after a reasonable time to comply. A reasonable time varies on the circumstances, e.g., no time limit would be required if fire is being taken from the hospital. Pictet at 202.

c.
Article 13, GP I, extends this same standard to civilian hospitals.

3. Conditions not depriving medical units and establishments of protection (Article 22).
a.
Unit personnel armed for own defense against marauders and those violating the law of war, e.g., by attacking a medical unit. Medical personnel thus may carry small arms, such as rifles or pistols for this purpose. In contrast, placing machine guns, mines, LAAWS, etc., around a medical unit would cause a loss of protection. FM 4-02 at para. 4-8.

b.
Unit guarded by sentries. Normally medical units are guarded by its own personnel. It will not lose its protection, however, if a military guard attached to a medical unit guards it. These personnel may be regular members of the armed force, but they may only use force in the same circumstances as discussed in para 3(a) above. FM 4-02 at para. 4-8.

c.
Small arms taken from wounded are present in the unit.

d.
Presence of personnel from the veterinary service.

e.
Provision of care to civilian wounded and sick.

B.
Disposition of Captured Buildings and Material of Medical Units and Establishments.

1.     Mobile Medical Units (Article 33).
a.
Material of mobile medical units, if captured, need not be returned. This was a significant departure from the 1929 convention which required mobile units to be returned.

b.
But captured medical material must be used to care for the wounded and sick. First priority for the use of such material is the wounded and sick in the captured unit. If there are no patients in the captured unit, the material may be used for other patients. Pictet at 274; see also FM 4-02 at para. 4-

6.
2.     Fixed Medical Establishments (Article 33).
a.
The captor has no obligation to restore this property to the enemy -he can maintain possession of the building, and its material becomes his property. However, the building and the material must be used to care for wounded and sick as long as requirement exists. Greenspan at 85.

b.
Exception -“in case of urgent military necessity,” they may be used for other purposes.

c.
If a fixed medical establishment is converted to other uses, prior arrangements must be made to ensure that wounded and sick are cared for.

3.     Medical material and stores of both mobile and fixed establishments “shall not be intentionally destroyed.” No military necessity exception.
XIP. MEDICAL TRANSPORTATION.
A. Medical Vehicles -Ambulances (Article 35).
1. Respect and protect -may not be attacked if performing a medical function. During the Bosnian conflict, there were several reports of attacks on medical vehicles, e.g., on June 24, 1992, Bosnian Serb machine gunners fired on two ambulances killing all six occupants. Helsinki Watch, WAR CRIMESIN BOSNIA-HERCEGOV~NA
1 15 (1992).
2.
These vehicles may be employed permanently or temporarily on such duties and they need not be special!;^ equipped for nedica! pu~yoses. Pictet at 28 1 Professor Draper states that “[als ambulances are not always available, any vehicles may be adapted and used temporarily for transport of the wounded. During that time they will be entitled to protection, subject to the display of the distinctive emblem. Thus military vehicles going up to the forward areas with ammunition may bring back the wounded, with the important reservation the emblem must be detachable, e.g., a flag, so that it may be flown on the downward journey. Conversely military vehicles may take down wounded and bring up military supplies on the return journey. The flag must them be removed on the return journey.” Draper at 83.

3.
Key issue for these vehicles is the display of the distinctive emblem, which accords them protection.

a.
Camouflage scenario: Belligerents are only under an obligation to respect and protect medical vehicles so long as they can identify them. Consequently, absent the possession of some other intelligence regarding the identity of a camouflaged medical vehicle, belligerents would not be under any obligation to respect and protect it. FM 4-02 at para. 4-6. See also Draper at 80.

b.
Display the emblem only when the vehicle is being employed on medical work. Misuse of the distinctive symbol is a war crime. FM 27-10 at para.

504.
4. Upon capture, these vehicles are “subject to the laws of war.”
a.
Thus, the captor may use them for any purpose.

b.
If the vehicles are used for non-medical purposes, the captor must ensure care of wounded and sick they contained, and, of course, ensure that the distinctive markings have been removed.

B.
Medical Aircraft (Article 36).

1.
Definition -Aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment.

2.
Protection.

a.
Marked with protected emblem.

b.
However, protection ultimately depends on an agreement: medical aircraft are not to be attacked if “flying at heights, times and on routes specifically agreed upon between the belligerents.” The differing treatment accorded to aircraft, as opposed to ambulances, is a function of their increased mobility and consequent heightened fears about their misuse. Also “the speed of modem aircraft makes identification by colour or markings useless. Only previous agreement could afford any real safeguard.” Draper at 84.

c.
Without such an agreement, belligerents use medical aircraft at their own risk. Pictet at 288; FM 4-02 at para. 4-6.

(1)This was certainly the case in Vietnam where “any air ambulance pilot who served a full one year tour could expect to have his aircraft hit at least once by enemy fire.” “Most of the Viet Cong and North Vietnamese clearly considered the air ambulances just another target.” Dorland &Nanney, DUST OFF: AMY AEROMEDICAL M
EVACUATION VIETNAM85-86 (1982)(although the authors note the pilot error and mechanical failure accounted for more aircraft losses than did hostile fire).
(2)Medical aircraft (and vehicles) took fire from Panamanian paramilitary forces (DIGBATS) during Operation JUST CAUSE. Center for Army Lessons Learned, Operation JUST CAUSE: Lessons Learned, p. III-14, (October 1990).
(3)By contrast, in the ~alklands each of the hospital ships (British had 4; Argentineans had 2) had one dedicated medical aircraft with Red Cross emblems. Radar ID was used to identify these aircraft because of visibility problems. Later it was done by the tacit agreement of the parties. Both sides also used combat helicopters extensively, flying at their own risk. No casualties occurred. Junod, PROTECTION
OF THE VICTIMSOF THE ARMED IN THE FALKLANDS,
CONFLICT     ICRC, p. 26-27.
d.
Aircraft may be used permanently or temporarily on a medical relief mission; however, to be protected it must be used “exclusively” for a medical mission during its relief mission. Pictet at 289. This raises questions as to whether the exclusivity of use refers to the aircraft’s entire round trip or to simply a particular leg of the aircraft’s route. The point is overshadowed, however, by the ultimate need for an agreement in order to ensure protection. Pictet also says exclusively engaged means without ally armament. See also articlc 25(3)in Trotoccl I; and PM8-10-5 2t A-3(the mounting or use of offensive weapons on dedicated Medevac vehicles and aircraft jeopardizes the protection afforded by the conventions. Offensive weapons include, but are not limited to, machine guns, grenade launchers, hand grenades, and light anti-tank weapons).

e.
Reporting information acquired incidentally to the aircraft’s humanitarian mission does not cause the aircraft to lose its protection. Medical personnel are responsible for reporting information gained through casual observation of activities in plain view in the discharge of their duties. This does not violate the law of war or constitute grounds for loss of protected status. Dep’t of Army Field Manual 8-10-8, Medical

Intelligence in a Theater of Operations para. 4-8 (7 July 1989). For example, a Medevac aircraft could report the presence of an enemy patrol if the patrol was observed in the course of their regular mission and was not part of an information gathering mission outside their humanitarian duties.
f.     Flights over enemy or enemy-occupied territory are prohibited unless agreed otherwise.
3.     Summons to land.
a.
Means by which belligerents can ensure that the enemy is not abusing its use of medical aircraft -must be obeyed.

b.
Aircraft must submit to inspection by the forces of the summoning Party.

c.
If not committing acts contrary to its protected status, may be allowed to continue.

4. Involuntary landing.
a.
Occurs as the result of engine trouble or bad weather. Aircraft may be used by captor for any purpose.

b.
Personnel are Retained or PWs, depending on their status.

c.
Wounded and sick must still be cared for.

5.     Inadequacy of GWS Article 36 in light of growth of use of medical aircraft prompted overhaul of the regime in GP I (Articles 24 -31).
a.     Establishes three overflight regimes:
(1)Land controlled by friendly forces (Article 25): No agreement between the parties is required; however, the article recommends that notice be given, particularly if there is a SAM threat.
(2)
Contact Zone (disputed area) (Article 26): Agreement required for absolute protection. However, enemy is not to attack once aircraft identified as medical aircraft.

(3)
Land controlled by enemy (Article 27): Overflight agreement required. Similar to GWS, Article 36(3) requirement.

6.     Optional distinctive signals (Protocol I, Annex I, Chapter 3), e.g. radio signals, flashing blue lights, electronic identification, are all being employed in an effort to improve identification.
XIII. DISTINCTIVE EMBLEMS.
A. Emblem of the Conventions and Authorized Exceptions (Article 38).
1.
Red Cross. The distinctive emblem of the conventions.

2.
Red Crescent. Authorized exception.

3.
Red Lion and Sun. Authorized exception employed by Iran, although has since been replaced by the Red Crescent.

B. Unrecognized symbols. The most well-known is the red “Shield of David” of Israel. While the 1949 diplomatic conference considered adding this symbol as an exception, it was ultimately rejected. Several other nations had requested the recognition of new emblems and the conference became concerned about the danger of substituting national or religious symbols for the emblem of charity, which must be neutral. There was also concern that the proliferation of symbols would undermine the universality of the Red Cross and diminish its protective value. Pictet at 301. In the various Middle East conflicts involving Israel and Egypt, however, the “Shield of David” has been respected. FM 4-02 at para. 4-
6.
C. Identification of Medical and Religious Personnel (Article 40).
1.     Note the importance of these identification mechanisms. The two separate and distinct protections given to medical and religious personnel are, as a practical matter, accorded by the armband and the icieniificaiion card. FM4-02 at para. 4-5.
a.
The armband provides protection from intentional attack on the battlefield.

b.
The identification card indicates entitlement to “retained person” status.

2.     Permanent medical personnel, chaplains, personnel of National Red Cross and other recognized relief organizations, and relief societies of neutral countries (Article 40).
a.
Armband displaying the distinctive emblem.

b.
Identity card -U.S. uses DD Form 1934 for the ID cards of these personnel.

c.
Confiscation of ID card by the captor prohibited. Confiscation renders determination of retained person extremely difficult.

3.     Auxiliary personnel (Article 41).
a.
Armband displaying the distinctive emblem in miniature.

b.
ID documents indicating special training and temporary character of medical duties.

D.
Marking of Medical TJnits and Estahlishmevts (Article 42).

1.
Red Cross flag and national flag.

2.
If captured, fly only Red Cross flag.

E. Marking of Medical Units of Neutral Countries (Article 43).
1.
Red Cross flag, national flag, and flag of belligerent being assisted.

2.
If captured, fly only Red Cross flag and national flag.

F.     Authority over the Emblem (Article 39).
1.
Article 39 makes it clear that the use of the emblem by medical personnel, transportation, and units is subject to “competent military authority.” The commander may give or withhold permission to use the emblem, and the commander may order a medical unit or vehicle camouflaged. Pictet at 308.

2.
While the convention does not define who is a competent military authority, it is generally recognized that this authority is held no lower than the brigade commander (generally 0-6) level. FM 4-02 at para. 4-6.

NOTES

Chapter -/ IWo~~tied Sick
LVI~
NOTES

CHAPTER
5
PRISONERS OF WAR AND DETAINEES (GPW)
REFERENCES
1.
Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (GPW), reprinted in Dep’t of the Army Pamphlet 27-1, Treaties Governing Land Warfare (1956) [hereinafter DA Pam 27-11.

2.
Hague Convent~on umber 1V Respecting the Laws and Customs of War on Land, October 18, 1907, reprinted in DA Pam 27- 1.

3.
Protocols Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflict, reprinted in Dep’t of the Army Pamphlet 27- 1-1, Protocols to the Geneva Conventions of 12 August 1949 (1 979).

4.
Dep’t of Defense Directive 5100.77, DoD Law of War Program (9 December 1998).

5.
Dep’t of Defense Directive 23 10.1, DoD Program for Enemy Prisoners of War and Other Detainees (1 8 August 1994).

6.
Chairman, Joint Chiefs of Staff Instruction 5810.01B (25 Mar 2002).

7.
Chairman, Joint Chiefs of Staff Instruction 3290.01A, Program For Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detained Personnel (15 Oct 2000).

8.
111 International Committee of the Red Cross, Commentary to the Geneva Convention Relative to the Treatment of Prisoners of War (Pictet ed. 1960)[hereinafter Pictet].

9.
Dep’t of the Army Field Manual 27-10, The Law of Land Warfare (1956) w/ Cl (1 976)[hereinafter FM 27-10].

10.
Dep’t of the Army Field Manual 19-40, Enemy Prisoners of War, Civilian Internees, and Detained Persons (1 976)[hereinafter FM 19-40].

11.
Dep’t of Army Reg. 190-8, OPNAVINST 3461.6, AFI 31-304, MCO 3461.1, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES, (1 Oct 1997), [hereinafter AR 190-81.

12.
Dep’t of the Army Pamphlet 27-161-2, International Law, Volume I1 (1962).

13.
JA 422, Operational Law Handbook, (2004).

14.
Howard S. Levie, 59 International Law Studies, Prisoners of War in International Armed Conflict (1 977)[hereinafter Levie].

15.
Howard S. Levie, 60 International Law Studies, Documents on Prisoners of War (1 979)[hereinafter Levie, Documents on Prisoners of War].

I. HISTORY OF PRISONERS OF WAR
75
A. “In ancient times, the concept of “prisoner of war”‘ was unknown and the defeated became the victor’s ‘~hattel”’~ Your captive was yours to kill, sell, or put to work. No one was as helpless as an enemy prisoner of war (EPW).’
B. Greek, Roman, and European theologians and philosophers began to write on the subject of EPW’s. However, treatment of EPW’s was still by and large left to military commanders.’
C. The American War of Independence. For the colonists, it was a revolution. For the British, it was an insurrection. To the British, the colonists were the most dangerous of criminals; traitors to the empire, and a threat to state survival, and preparations were made to try them for treason. However, British forces begrudgingly recognized the colonists as belligerents and no prisoner was tried for treason. Colonists that were captured were however subject to inhumane treatment and neglect. There were individual acts of mistreatment by American forces of the British and Hessian captives; however, General Washington appears to have been sensitive to, and to have had genuine concern for EPW’s. He took steps to prevent abuse.’
‘ See WILLIAM FLORY, PRISONERS OF WAR: A STUDY IN THE DEVELOPMENT
OF INTERNATIONAL LAW(1942): for a more detailed account of prisoner of war treatment through antiquity.
COMMENTARY,111GENEVACONVENTION, INTERNATIONAL COMMITTEE OF THERED CROSS4 (1960) [hereinafter Pictet].
‘Probably the most famous medieval prisoner of war was England’s Richard I of Robin Hood fame. King Richard’s ship sank in the Adriatic Sea during his return from the Third Crusade in 1 192. While crossing Europe in disguise, he was captured by Leopold, Duke of Austria. Leopold and his ally the Holy Roman Emperor, Henry VI, entered into a treaty with Richard on St. Valentine’s Day, 1193, whereby England would pay them f 100,000 in exchange for their king. This amount then equaled England’s revenues for five years. The sum was ultimntcly paid uildcr thc wntchful eyc of Richard’s mothe:., C!eznor of .\quitaine, and he returned to English soil on March 13, 1194. See M. Foster Farley, Prisoners for Proflt: Medieval intrigue quite often focused upon hopes of rich ransom, MIL. HISTORY(Apr. 1989), at 12.
Richard’s confinement by Leopold did seem to ingrain some compassion for future prisoners of war he captured. Richard captured 15 French knights in 1198. He ordered all the knights blinded but one. Richard spared this knight one eye so he could lead his companions back to the French army. This was considered an act of clemency at the time. MAJORPATREID,PRISONEROF WAR (1984).
See generally, Rev. Robert F. Grady, The Evolufion ofEthicnl and Legal Concernfor the Prisoner of War, Sacred Studies in Sacred Theology N. 21 8, The Catholic University of America. (On file with the TJAGSA library)
John C. Miller, TRIUMPI-I OF 1776;A RELIC OF THE
OF FREEDOM(1948), Rev. R. Livesay, THEPRISONERS REVOLUTION COMPILED FROM THE JOURNAL OF CHARLESHERBERT(I 854), Sydney George Fisher, THE STRUGGLE INDEPENDENCE (1908).
FOR AMERICAN
76
Chapter 5
POWs uncfDclciincrs
D. First agreement to establish prisoner of war (POW) treatment guidelines was probably the 1785 Treaty of Friendship between the U.S. and Prus~ia.~
E.     American Civil War. At the outset, the Union forces did not view the Confederates as professional soldiers deserving protected status. They were considered nothing more than armed insurrectionists. As Southern forces began to capture large numbers of Union prisoners, it became clear to Abraham Lincoln that his only hope for securing humane treatment for his troops was to require the proper treatment of Rebel soldiers. President Lincoln issued General Order No. 100, “Instructions of the Government of Armies of the United States in the Field,” known as the Lieber Code.
1.
Although the Lieber Code went a long way in bringing some humanity to warfare, many traditional views regarding EPW’s prevailed. For example, Article 60 of the Code provides: “a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoner^.”^

2.
Confederate policy called for captured black soldiers to be returned or sold into slavery and for white Union officers serving with black troops to be prosecuted for “exciting servile insurrection.”Taptured blacks who could not prove they were free blacks were sold into slavery. Free blacks were not much better off. They were treated like slaves and forced to labor in the Confederate war effort. In response to this policy, Article 58 of the Lieber Code stated that the Union would take reprisal for any black prisoners of war sold into slavery by executing Confederate prisoners. Very few Confederate prisoners were executed in reprisal. However, Confederate soldiers were often forced into hard labor as a reprisal.

3.
The Union and Confederate armies operated a “parole” or prisoner exchange system. Toward the end of the war, the Union stopped paroling southem soldiers because of its significant numerical advantage. It was fighting a war of attrition and EPW exchanges did not support that effort. This Union decision may have contributed to the poor conditions in Southern EPW camps because of the additional strain on resources at a time when the

Accord, Levie, at 5. See Levie, DOCUMENTS OF WAR,at 8, for the text of this treaty.
ON PRISONERS
‘ See Levie, DOCUMENTS ON PRISONERS OF WAR, at 39. For a summary of who Doctor Francis Lieber was and the evolution of the Lieber Code, see George B. Davis, Doctor Francis Lieber S Instructions for the Government ofArmies in the Field, 1 AM. J. INT’L L. 13 (1907).
VOL. V, THEWAR OF THEREBELLION:A COMPILATIONOF THEOFFICIAL RECORDS OF THE UNION AND CONFEDERATE at 807-808(Gov. Printing Office 1880-1901).
ARMIES
Confederate army could barely sustain itself. Some historians point out that the Confederate EPW guards were living in conditions only slightly better than their Union captives.’
4.
Captured enemy have traditionally suffered great horrors as POWs. Most Americans associate POW maltreatment during the Civil War with the Confederate camp at Andersonville. However, maltreatment was equally brutal at Union camps. In fact, in the Civil War 26,486 Southerners and 22,576 Northerners died in POW camps.I0

5.
Despite its national character and Civil War setting, the Lieber Code went a long way in influencing European efforts to create international rules dealing with the conduct of war.

F.     The first international attempt to regulate the handling of EPW’s occurred in 1907 with the promulgation of the Regulations Respecting the Laws and Customs of War on Land (Hague Regulations). Although the Hague Regulations gave EPW’s a definite legal status and protected them against arbitrary treatment, the Regulations were primarily concerned with the methods and means of warfare rather than the care of the victims of war. Moreover, the initial primary concern was with the care of the wounded and sick rather than EPW’s.”
G. World War I. The Hague Regulations proved insufficient to address the treatment of the nearly 8,000,000 EPW’s. Germany was technically correct when it argued that the Hague Regulations were not binding because not all participants were signatories.” According to the Regulations, all parties to the conflict had to be signatories if the Regulations were to apply to any of the parties. If one belligerent was not a signatory then all parties were released fiom
Rev. J. William Jones, CONFEDERATE VIEWOF THE TREATMENT (1876).
OF PRISONERS
lo Over one-half of the Northern POWs died at Andersonville. See Lewis Lask and James Smith, ‘Hell and the Devil’: Andersonville and the Trial of Captain Henry Wirz, C.S.A., 1865, 68 MIL.L. REV.77 (1975). See also US. Sanitary Commission, Narrative of Privations and Sufferings of United States Officers and Soldiers while Prisoners of War in the Hands of the Rebel Authorities, S. RPT. NO. 68,40th CONG.,3RD SESS.(1864), for a description of conditions suffered by POWs during the civil war. Flory, supra, at 19, n. 60 also cites the Confederate States of America, Report of the Joint Select Cornmiltee Appointed 10 Investigate the Condition and Treatment ofPrisoners of War (1865).
I’ PICTET, Supra note 2.
l2 G.I.A.D. Draper, THE RED CROSSCONVENTIONS
11 (1958).
mandatory compliance. The result was the inhumane treatment of EPW’s in German control.
H. Geneva Convention Relative to the Treatment of Prisoners of War in 1929. This convention supplemented the 1907 Hague Regulations and expanded safeguards for EPW’s. There was no requirement that all parties to the conflict had to be signatories in order for the Convention to apply to signatories.
I.     World War 11. Once again, the relevant treaties were not applicable to all parties. The gross maltreatment of EPW’s constituted a prominent part of the indictments preferred against Germans and Japanese in the post World War I1 war crimes trials.
I.     i’he Japanese had slgned but not ratified the 1929 Convention. They had reluctantly signed the treaty as a result of international pressure but ultimately refused to ratify it. The humane treatment of EPW’s was largely a western concept. During the war, the Japanese were surprised at the concern for EPW’s. To many Japanese, surrendering soldiers were traitors to their own countries and a disgrace to the honorable profession of arms.” As a result, most EPW’s in the hands of the Japanese during World War I1 were forced to undergo extremely inhumane treatment.
2.
In Europe, the Soviet Union had refused to sign the 1929 Convention and therefore the Germans did not apply it to Soviet EPW’s. In Sachsenhausen alone, some 60,000 Soviet EPW’s died of hunger, neglect, flogging, torture, and shooting in the winter of 1941-42. The Soviets retained German EPW’s in the USSR some twelve years after the close of hostilities.I4 Generally speaking, the regular German army, the Wehrmacht, did not treat American EPW’s too badly. The same cannot be said about the treatment Americans experienced at the hands of the German military.15

3.
The post-World War I1 war crimes tribunals determined that the laws regarding the treatment of EPW’s had become customary international law by the outset of hostilities. Therefore, individuals were held criminally liable for the mistreatment of EPW’s whether or not the perpetrators or victims

“Grady, supra note 4 at 103. l4 Draper, supra note12 at 49. l5 Grady, supra note 4 at126
were from states that had signed the various international agreements dealing with EPW’s.16
J.     Geneva Convention Relative to the Treatment of Prisoners of War in 1949. The experience of World War I1 resulted in the expansion and codification of the laws of war in four Geneva Conventions of 1949. With the exception of Common Article 111, this Convention only applies to international armed conflict. In such a conflict, signatories must respect the Convention in “all circumstances.” This language means that parties must adhere to the Convention unilaterally, even if not all belligerents are signatories. There are provisions that allow non-signatories to decide to be bound. Moreover, with the exception regarding reprisals, all parties must apply it even if it is not being applied reciprocally. The proper treatment of EPW’s has now risen to the level of customary international law.
K.     1977 Additional Protocols to the 1949 Geneva Conventions. Protocol I, International Armed Conflicts; Protocol 11, Internal Armed Conflicts. The U.S. is not a party to either Protocol. Neither Protocol creates any new protections for prisoners of war. They do, however, have the effect of expanding the definition of “status,” that is, who is entitled to the GPW protections in international armed conflict, and narrowing the coverage of Common Article 3 of the GPW in internal armed conflicts.
11. PRISONER OF WAR STATUS AS A MATTER OF LAW
A. Important Terminology.
1.
Prisoners of War (POWs): A detained person as defined in Articles 4 & 5, GPW (FM 27-10,761).

2.
Civilian Internees: A civilian who is interned during armed conflict or occupation for security reasons or for protection or because he has committed an offense against the detaining power (Joint Pub 1-02).”

l6 Id.
” DEP’T OF DEF., JOINT PUBLICATION
1 (1 June 1987). See also Section IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (reprinted in DA PAM.27-1)Ehereinafter GC] and the Protections of Civilians in Armed Conflict chapter of this text.
3.
Retained personnel: Medical and religious personnel retained by the Detaining power with a view toward assisting POWs (Art. 33, GPW).

4.
Detainees:     A term used to refer to any person captured or otherwise detained by an armed force (Joint Pub 1-02). It includes those persons held during operations other than war (DoDD 23 10.1). It also includes those persons that the U.S. Government has declared as an “unlawful combatant” or “unprivileged belligerent” (i.e. the Taliban and al-Qaida captured during Operation Enduring Freedom).

5.
Refugees: Persons who by reason of real or imagined danger have left home to seek safety elsewhere. See Art. 44, GC and 195 1 UN Convention Relating to the Status of Refugees.ls

6.
Dislocated civilian: A generic term that includes a refugee, a displaced person, a stateless person, an evacuee, or a war victim.”

7.
In sum, always begin by using the term detainee until a more specific status is determined; it is the broadest term without legal status connotations.

B. In order to achieve the status of a prisoner of war, you have to be the right kind of person in the right kind of conflict. The question of status is enormously important. There are two primary benefits of EPW status. First, you receive immunity for warlike acts (i.e.,your acts of killing and breaking things are not criminal). Second, you are entitled to the rights and protections under the GPW. One of those rights is that the prisoner is no longer a lawful target.
C. The Right Kind of Conflict.
1.     Common Article 2, GPW: The “Conventions shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. . . .” (emphasis added).
a.     Commonly known examples of common Article 2 conflicts include W.W.11, Korea,'” Vietnam,” Falklands,” Grenada,” Panama,24 Desert
Is 189 U.N.T.S. 137.
l9 See DEP’TOF THE ARMY, FIELD MANUAL 41-10, CIVIL AFFAIRS (1 1 January 1993).
20 While few people argue whether or not the Korean War was a common Article 2 conflict, there was a question of whether the 1949 Geneva Conventions would apply. The United States did not ratify the Conventions until 1955. However, by July 1950, the United States, South Korea, andNorth Korea all agreed to be bound its terms. See The Geneva Conventions in the Korean Hostilities, DEP’TOF STATE BULLETIN, vol. 33, at 69 -73 (1955). Unfortunately, in practice, North Korea routinely abused and killed POWs in violation
81
Clrnptrr 5 POW5 und Dclmnees.
Stormz5andOperation Iraqi Freedom (OIF). The conflict in Bosnia was both an international and internal armed conflict depending on the location and time of the combatant activities. For example, the Tadic court determined that the conflict was internal for the purposes of that indictment, but found the conflict to be international for the purposes of the Celebici indictment.
of the agreement and the terms of the 1949 Conventions. For a discussion of mistreatment prisoners of war have faced in general at the hands of communist captors, see SEN. SUBCOMM. THE ADMIN. OF
TO INVESTIGATE THE INTERNAL SECURITYACTAND OTHER INTERNAL LAWSOF THE COMM.ON THE JUDICIARY,
SECURITY 92ND CONG., 2D SESS., COMMUNIST TREATMENT OF PRISONERS OF WAR: A HISTORICAL
SURVEY (Comm. Print 1972).
” See THE VIETNAM IN
WARAND INTERNATIONAL LAW (R. Falk, ed. 1968), and LAW AND RESPONSIBILITY WARFARE:THE VIETNAM EXPERIENCE(P. Trooboff, ed. 1975).
” See James F. Gravelle, The Falkland (Malvinas) Islands: An International Law Analysis of the Dispute Between Argentina and Great Britain, 107 MIL. L. REV. 5 (1985), and Sylvie-Stoyanka Junod, PROTECTION
OF THE VICTIMS OF THE ARMED CONFLICT FALKLAND-MALVMAS
ISLANDS (1982), (ICRC, 1984).
” See Memorandum, HQDA, DAJA-IA, subject: Geneva Conventions Status of Enemy Personnel Captured During URGENT FURY (4 Nov. 1983). See also JOHN NORTON MOORE, LAW AND THE GRENADA MISSION (1984).
24
Initially, the U.S. official position was Panama was not an Article 2 conflict. A primary argument was the legitimate Government of Panama invited us to assist them in reestablishing control of Panama after General Noriega nullified the free elections where Mr. Endara was elected President. To support this position, concurrent with the invasion, Mr. Endara was sworn in as President of Panama in the U.S. Southern Command Headquarters one hour before the invasion occurred; forces were already airborne en route. See General Accounting Office, Panama: Issues Relating to the U.S. Invasion 4, n.2 (April 1991)[GAO/NSIAD-91-174FSl. See generally, Bob Woodward, THE COMMANDERS
84, 182 (1 991). See also Thomas Donnelly, Margaret Roth, and Caleb Baker, OPERATIONS JUST CAUSE: THE STORMING (1991), for details of the
OF PANAMA invasion.
After General Noriega’s capture, he petitioned a federal court claiming POW status under the Geneva Conventions. While the U.S. argued General Noriega would be treated consistent with the Convention, they would not agree that he was, in fact, entitled to POW status. However, in United States v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992), a district court judge found Panama was an article 2 conflxt as a matter oi law and granted POW status to the General. Noriega was ultimately tried, convicted, and sentenced in 1992 to 40 years on drug and racketeering charges. See generally, Laurens Grant, Panama outraged by Noriega’s TV appearance, REUTERS,Apr. 26, 1996, available in LEXIS, News Library, CURNWS File and Larry King, Noriegapleads case for release, USA TODAY, Apr. 22, 1996 at 2D.
See generally, John Parkerson, United States Compliance with Humanitarian Law Respecting CiviliansDuring Operation Just Cause, 133 MIL. L. REV. 31 (1991).
25 See BARRY E. CARTERAND PHILLIPR. TRIMBLE,INTERNATIONAL LAW:SELECTEDDOCUMENTS 880 -908 (1995)[hereinafter Carter and Trimble], for copies of the United Nations Security Council Resolutions and
U.S.
domestic documents authorizing the coalition’s actions. See generally, DEP’T OF DEF., FINAL REPORT TO CONGRESS:CONDUCTOF THE PERSIAN GULF WAR (1 992)[hereinafter DOD PERSIAN GULF REPORT], attached as APPENDIX A, and U.S. New AND WORLD REPORT STAFF, TRIUMPH WITHOUTVICTORY:THE UNREPORTED HISTORY OF THE PERSIANGULF WAR(1 992).

b.
Most legal scholars clearly see NATO’s activities in Kosovo as amounting to international armed conflict. Although the U.S. government initially described the capture of three American soldiers as an unlawful abduction because they were non-combatants, this assertion is questionable.

Chcrpter 5 POWs and Detainees
(1)Had they been members-of a UN mission, and had the US not been simultaneously bombing Serbia, the US position may have been justified. See Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59,49 U.N. GAOR Supp. (No. 49), at 299, U.N. Doc. A149149 (1994).
(2)However, the UN mission in Macedonia had ended in February of 1999; they were captured on 31 March 1999. Forces in Macedonia had stopped wearing the traditional UN Blue Helmets; they were now part of the NATO mission. The captives were on a reconnaissance mission, carrying small arms and had a SO caliber machine gun fixed to their vehicle. The forces in Macedonia were poised for possible ground operations in Kosovo.
(3)There is nothing in the law of war that requires a party to a conflict to limit its combat activities to the same geographical area that another party has limited its activities to. Even if Macedonia had still been a UN mission, it is arguable that the combatant activities in Kosovo meant that all US forces capable of supporting or reinforcing those activities became legitimate targets. This means that all US forces, no matter where they were located, became potential targets on the 24th of March. If they can be targeted, they can be taken as POW’S.
c.     Whether or not a conflict rises to the level of common Article 2 is a question of factz6 Factors one should consider are:
(1)Has international recognition of the belligerents occurred?
(2)Are there de facto hostilities?
According to Pictet:
Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Pictet at 23.
(3)Has the United States authorized the issuance of.wartime awards and pay? (This is not dispositive. Recall: Two Special Operations Forces sergeants received the Congressional Medal of Honor in Somalia, yet it was clearly not an Article 2 conflict!)
d.
Another factor to consider is whether the combatants are “parties” within the meaning of Article 2. For example, the warlord Aideed and his band in Somalia did not qualify as a “party” for purposes of the Geneva Conventions.

e.
Additionally, terrorist networks and organizations do not qualify as a “party” within the meaning of Common Article 2 of the Geneva Conventions. The U.S. position is clearly stated in a 7 February 2002 White House Press Release. The official U.S. position is that the al-Qaida network is not a state party to the Geneva Conventions; it is a foreign terrorist group. On the other hand, while the U.S. and all but three other nations never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President determined that the Taliban were covered by the Geneva Convention as a “party” within the meaning of Common Article 2.”

f.
Protocol I expands the definition of international armed conflict to include conflicts against racist regimes, colonial domination, and alien occupation. Protocol I, Art. l(4). It is important to understand that the GC’s were drafted by military powers with European heritage. Many of the drafters of the Protocols were so-called third world countries with a colonial history. They wanted to insure international law protections, primarily combatant immunity, were extended to their forces.

7     GC Common Article 3 Minimal protections provided. Does not include combatant immunity. Protections limited to internal armed conflicts. Though not defined in the article, armed conflict is something more than mere riots or banditry. There is no absolute test as to what constitutes armed conflict but a significant factor is whether the government uses its armed forces in response to the conflict.
3. Protocol I1 tends to narrow the scope of CA3. It defines armed conflict whereas the CA3 does not. Unlike CA3, it also requires that to receive the
27 See The White House, The Office of the Press Secretary, Statement by the Press Secretary, dated 7 February 2002 [hereinafter 7 Feb 02 White House Statement].
Chupter 5 POWs and Detniners
protection of Protocol 11, an armed force must be under responsible command
and exercise control some territory. Protocol 11, Art. 1. This narrowing has
the effect of excluding some from the protections of CA3. Again, keeping in
mind the drafters’ perspective, a newly established state with limited armed
forces and resources might be less likely to want to extend protections to
revolutionary powers. Some developing nations expressed concern that the
super powers of the time (1977), namely, the US. and USSR, might, as a
subterfuge for intervention, assert that they needed to become involved in the
internal conflict to come to the aid of the insurgents pursuant to CA3.
a.     Protocol I1 as a minimum standard by analogy?
(1)United States is not a party to Protocol 11.
(2) Unlike Protocol I, it may reflect customary law.
(3)Minimum standards at Article 4 (Fundamental Guarantees), Article 5 (Persons Whose Liberty Has Been Restricted), and Article 6 (Penal Prosecutions).
4. War on ~ekorism. There remains great debate concerning the characterization of the conflict in Afghanistan. Clearly, the U.S. is in an armed conflict. The question is whether it is an international armed conflict (Common Article 2; State vs. State), an armed conflict not of an international character (Common Article 3; internal), a combination of the two; or some other type of armed conflict.
a.     In regards to the Taliban, it seems clear that the U.S. was in an international armed conflict with the commencement of Operation Enduring Freedom (OEF) on October 7, 2001. While not recognized by 98% of the international community, arguably, the Taliban was the de facto government of the Afghanistan since 1996 including at the commencement of OEF. State recognition is not a requirement for the application of the Geneva Conventions. However, when the OEF coalition forces defeated the Taliban regime, they lost control of Afghanistan and ceased to exist as the de facto government of Afghanistan. With the new Afghan government headed by President Karzai firmly in place as the government of Afghanistan, any remaining armed conflict between the coalition forces and organized armed elements of the Taliban regime arguably should be characterized as an armed conflict of a non-international character (i.e. a Common Article 3 internal armed conflict).
85
Cl1czptt.r-5 POW.. untl Delmnees
b.
In regards to the al-Qaida foreign terrorist group, the characterization is more complex. Prior to September 1lth, operations by and against terrorists were not traditionally treated as armed conflict (neither international nor non-international armed conflict). Terrorists have been treated as criminals and responses viewed as “law enforcement.” Any military involvement was traditionally viewed within the MOOTW context and therefore was treated as operations below the armed conflict spectrum. Clearly, the U.S. is in an “armed conflict” with al-Qaida, however, the armed conflict with al-Qaida does not fit neatly into the existing armed conflict paradigms. Al-Qaida is not a State and therefore any direct U.S action versus al-Qaida network lacks the requirement of two or more states actually involved in the conflict for there to be an international armed conflict. Additionally, the non-international armed conflict paradigm traditionally involved the concepts of “civil wars” or “internal conflicts.” Has the military action taken against al-Qaida been absorbed into the international armed conflict (Common Article 2) with the Taliban or is the conflict with al-Qaida best described as an armed conflict not of an international character (Common Article 3)? Neither? To date, there does not seem to be an official U.S. position regarding the al-Qaida terrorist group other than that the Geneva Conventions do not apply to them since they are not a “party” within the meaning of Common Article 2 of the Conventions.'”

D.
The Right Kind of Person.

1. Once a conflict rises to the level of common Article 2, Article 4, GPW, determines who is entitled to the status of a prisoner of war. Traditionally, persons were only afforded prisoner of war status if they were members of the regular armed forces involved in an international armed conflict. The GPW also included members of militias or resistance fighters beionging to a party to an international armed conflict if they met the following criteria:
a.
Being commanded by a person responsible for their subordinates;

b.
Having fixed distinctive insignia;'”

Id.
For a discussion of the uniform requirement, see In re Qulrin, 317 U.S. 1 (1942) and Mohamadali and Another v. Publ~cProsecutor (Privy Council, 28 July 1968), 42 I.L.R. 458 (1971) The first attempt to codify the uniform requirement necessary to receive POW status occurred during the Brussels Conference of 1874.
86
Chapter 5
POW.. and Detnlnce~

c.
Carrying arms openly;10 and,

d.
Conducting their operations in accordance with the laws and customs of war.

2.
One must recognize that with coalition operations one may have to apply a different standard; our coalition partners may use Protocol 1’s criteria. Protocol I only requires combatants to carry their arms openly in the attack and to be commanded by a person responsible for the organization’s actions, comply with the laws of war, and have an internal discipline system. Art. 43 & 44, GPI. Therefore, guerrillas may be covered. Note: The United States is NOT a party to Protocol I, but 161 nations are parties to the treaty.]’

3.
in addition, numerous other persons detained by military personnel are entitled to EPW status if “they have received authorization from the armed forces which they accompany.” (i.e., possess a GC identity card from a belligerent government). Specific examples include:

a.
Contractors;

c.
Civilian members of military aircraft crews;

d.
Merchant marine and civil aviation crews;

e.
Persons accompanying armed forces a dependent^);^] and,

30 This term carrying arms openly does NOT require they be carried visibly. However, the requirement rests upon the ability to recognize a combatant as just that. Protocol I changes this requirement in a significant way. Under the 1949 Convention, a combatant is required to distingtiish himself throughout military operations. Art. 44(3), GPI, only obligates a combatant to distinguish himself from the civilian population “while they are engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a view to combat.” COMMENTARYON THE ADDITIONALPROTOCOLSOF 8 JUNE 1977 TO THE GENEVACONVENTIONS OF 12AUGUST1949 527 (Y. Sandoz, C. Swinarski, and B. Zimmerman, eds. 1987).
” ICRC document detailing States Party to International Humanitarian Law Treaties (as of 3 June 2003)[on file at TJGSA].
32 See Hans-Peter Gasser, The Protection ofJournalists Engaged in Dangerous Professional Missions, INT’L REV. RED CROSS (JanlFeb. 1983), at 3. See also KATE WEBB,ON THE OTHERSIDE (1972) (journalist held for 23 days in Cambodia by the Viet Cong).
See Stephen Sarnoski, The Status Under International Law of Civilian Persons Serving with or Accompanying Armed Forces in the Field, ARMYLAW.(July 1994), at 29. See generally, MEMORANDUM FOR THE ASSISTANT JUDGE ADVOCATE GENERAL (CIVIL LAW), SUBJ: Civilians in Desert Shield –
–
INFORMATION MEMORANDUM (26 NOV. 1992).

f.
Mass Levies (Levee en Masse).'”~ qualify these civilians must: (1)Be in non-occupied territory; and, (2)Act spontaneously to the invasion; and,

(3)Carry their arms vi~ibly;~~-and,
(4)Respect the laws and customs of war.

(5)
Contrast this requirement with organized resistance movements.

g.
This is NOT an all-inclusive list. One’s status as a prisoner of war is a question of fact.

(1)The possession of a belligerent government issued identification card is weighed heavily.
(2)Prior to 1949, possession of an identification card was a prerequisite to EPW status.I6
4. Medical and religious personnel (Retained Personnel) receive the protections of GPW plus (Art. 4C & 33, GPW).
a.
Retained personnel are to be repatriated as soon as they are no longer needed to care for the prisoners of war.”

b.
Of note, retained status is not limited to doctors, nurse, corpsman, etc. It also includes, for example, the hospital clerks, cooks, and maintenance

~ ~
Id See I11 Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter GPW], Art. 4(A)(6) and FM27-10,761. Additionally, 7 65 says all of military ages may be held as POWs. The GPW does not discriminate the right to detain by gender and therefore females may be detained as well.
See Pictet, at 67.
l6 See Article 81, Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929, reprinted in, Pictet, at 683. See also DEP’T OF DEF., INST. 1000.1, IDENTITY CARDSREQUIREDBY THE GENEVACONVENTION(30 January 1974).
‘I This is one of the most abused provisions of the Geneva Conventions. The last time this author knows of this occurring was by the United States during World War 1. During hostilities we repatriated 59 medical officers, 1,783 sanitary personnel, including 333 members of the German Red Cross. FINAL REPORT OF GENERALJOHN J. PERSHINGHQ, AEF Sept. 1,1919, reprinted in XVI THESTORYOF THE GREAT WAR (1 %O), at App., p. Ivii.
Chapter 5 POWs ~wd
Dctainers
‘9

5. Persons whose POW status is debatable:”
c.
Military advisors;42

d.
Belligerent dip10mats;~and

e.
Mercenaries.” (Art. 47, GPI); -U.S. disagrees with this view,

f.
U.N. personnel during U.N. peace rnissi~ns.~~

6. Sples are not entitled to POW status. (Art. 29, HR and Art. 46, GPI).
” See I INTERNATIONAL COMMITTEE TO THE GENEVA FOR
OF THE RED CROSS, COMMENTARY CONVENTION AMELIORATION OF THE WOUNDED FORCESIN THE FIELD 218 -258
OF THE CONDITION AND SICK IN ARMED (Pictet ed. 1952)(Articles 24 -28). See generally, ALMABAccINo-ASTRADA, MANUAL ON THE RIGHTS AND DUTIES OF MEDICAL PERSONNEL IN ARMED CONFLICTS (ICRC, 1982) and Liselotte B. Watson, Status of Medical and Religious Personnel in International Law, JAG J. 41 (Sep-Oct-Nov 1965).
See Levie, at 82 -84; Richard R. Baxter, So-called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs, MIL. L. REV. BICENTENNIAL
ISSUE 487 (1975)(Special Ed.); Albert J. Esgain and Waldemar A. Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies, MIL. L. REV. BICENTENNIAL
ISSUE 303 (1975)(Special Ed.).
40
See Memorandum, HQDA, DAJA-IA, 22 January 1991, SUBJECT: Distinction Between Defectors/Deserters and Enemy Prisoners of War. See also Levie, at 77 -78; James D. Clause, The Status of Deserters Under the 1949 Geneva Prisoner of War Convention, 11 MIL. L. REV. 15 (1961); and, L.B. Shapiro, Repatriation ofDeserters, 29 BRIT. YB.INT’L L. 3 10 (1952).
4′ Not entitled to status if at time of capture, the individual is dressed in civilian clothes and engaged in a sabotage mission behind enemy lines. See Exparte Quirin U.S. at 31. See also Levie, Vol59 at 36-37 and 82-83.
42 If a neutral nation sends a military advisor or some other representative that accompanies an armed force as an observer then that person, if taken into custody of the armed forces of the adverse Party, would not be considered a PW. The military representative could be ordered out of, or removed from the theater of war. On the other hand, if the military representative takes part in the hostilities and acts as a “military advisor” and renders “military assistance to the armed forces opposing those of the belligerent Power into whose hands they have fallen, it could be argued that they fall within the ambit of Article 4(A) and that they are therefore entitled to prisoner-of-war status.” Levie, Vol. 59 at 83-84.
43 If a belligerent diplomat, in addition to his political office, is a member of the regular armed forces or is accompanying the armed forces in the field in one of the categories included in Article 4(A), GPW then he is subject to capture and to PW status. Levie, Vol 59 at 83, 342n.
44 See John R. Cotton, The Rights ofMercenaries as Prisoners of War, 77 MIL. L. REV. 144 (1977).
45 See Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, 49 U.N. GAOR Supp. (No. 49), at 299, U.N. Doc. A149149 (1994).
89
Chnyrer 3 PUWA and Dcl~mce.,
7.     U.S. Policy Regarding Status of Enemy Participants in Operation Enduring Freed~m.~~
a.
The White House statement released on 7 Feb 02 resolved this issue. The President decided that neither Taliban nor al-Qaida detainees are entitled to POW status.47

b.
Al-Qaida is not a state party to the Geneva Convention and therefore not entitled to POW status.’*

c.
The President decided that although the Geneva Conventions apply to the Taliban detainees, they are not entitled to POW status because they do not satisfy the four conditions specified in Article 4, GPW. The White House position is that the Taliban have not distinguished themselves from the civilian population of Afghanistan and they have not conducted their operations in accordance with the laws and customs of war.4g

E.
When an EPW’s Status is in Doubt.

1.
Policy: Always initially treat as EPWs.'”

2.
Law: Article 5, GPW: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

3.
U.S. policy is to convene a three-member panel (FM 27-10,~71c).Their role is to ascertain facts, not to adjudicate any type of punishment.

a     A R 1 90-810PNAVTNST 346 1 6IAFT 3 1-304MCO 3461.1. Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other
46 7 Feb 02 White House Statement, supra note 27.
47 Id.
Id.
“Id. See also 22 Jan 02 NSC statement of U.S. policy regarding al-Qaida and Taliban detainees. Taliban and al-Qaida lack some or all of the four attributes specified in Article 4, CG 111 and therefore do not receive POW status.
Chupter 5
PO Ws and Detainee.)

Detainees, para. 1-6, Tribunals, provides guidance on how to conduct an Article 5 Tribunal.
(1)There are to be three voting members, the president of which must be a field grade officer, and one nonvoting recorder, preferably a Judge Advocate.
(2)The standard of proof is “preponderance of the evidence.” The regulation does not place the burden of proof or production on either party. The tribunal should not be viewed as adversarial as the recorder need not be a JA and there is no right to representation for the subject whose status is in question.
b.     If a Combatant Commander has his own regulation or policy on how to conduct an Article 5 Tribunal, the Combatant Commander’s regulation would control. For example, see CENTCOM Regulation 27-13 at Appendix A.
4.     During Operation Desert Storm the US conducted 1,196 Article 5 tribunals.”
a.
A Judge Advocate could serve as a non-voting member (Recorder) or as one of the voting members of an Article 5 tribunal.”

b.
AR 190-8 calls for the GCMCA to appoint the tribunals. Remember, a Combatant Commander policy can trump AR 190-8.

5.     Recall: Article 5 tribunals are not always necessary.
a.     The U.S. position regarding Article 5 tribunals for the detainees held at Guantanamo Bay is that it is not necessary. Clearly, the detainees do not satisfy the four conditions specified in Article 4, GPW and therefore there is no doubt as to their status. Article 5 tribunals are only required when there is doubt.”
52 See, e.g.,U.S. CENTRALCOMIVMND, 27-13, LEGALSERVICES PERSON:
REGULATION -CAPTURED DETERMINATION OF ELIGIBILITY FOR ENEMYPRISONER OF WAR STATUS(7 Feb. 95), for guidance about, and procedures for, actually conducting, Article 5 tribunals. CENTCOM REG 27-13 is included as an appendix to this chapter.
53 The provision in Article 5 regarding “persons whose status is in doubt” was first added in the 1949 convention. The official commentary states that this provision “would apply to deserters, and to those who accompany the armed forces and have lost their identity card.” The commentary goes on to state that the “clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future
91
Clrclpter 5 POW’S uund Deloinees
F.     Treatment as a Matter of Policy.
1.
GPW is part of the Supreme Law of the Land (Article VI, Constitution of the United States). Thus, its Articles apply unless they are inconsistent with the Constitution itself.

2.
DA is Executive Agent for all EPW Matters. DoD Dir. 2310.1 provides: “U.S. Military Services shall comply with the principles, spirit, and intent of the international law of war, both customary and codified, to include the Geneva convention^.^^”

3.
DoD Dir. 5 100.77, Law of War Program, requires all US Forces to comply with the law of war in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized.

4.
CJCS 5810.01B, Implementation of the DoD Law of War Program, indicates that the laws of war are to be applied on MOOTW by American forces.

5.
Every JA and soldier must understand that STATUS is a matter of law. While the United States TREATS all persons initially detained consistent with the provisions of the GPW, this is only a policy.”

6.
The Phenomenon of Detainees. In operations other than war, the status of a person temporarily detained is frequently at issue. Therefore, our policy is to initially provide the greatest protections this person could receive until our government determines their legal status

a.     We train our soldiers to always treat captured persons as EPWs (Doctrine).
conflict.” Pictet at 77-78. Therefore, it seems logical that if there is no doubt that a captured individual fails to meet one of the categories of article 4, there is no need to conduct an Article 5 tribunal. Furthermore, in the case of al-Qaida, they clearly are not a party to the convention, therefore Article 5, GPW, as well as the entire GPW (except arguably CA 3), does not apply to them. However, assuming arguendo that al-Qaida could be considered a resistance movement belonging to the Taliban there is no doubt that al-Qaida members fail to meet the four criteria under Article 4(A).
Note, the DoD Directive refers to Geneva Conventions, not simply the one relating to EPWs. This supports the use of the GC when more appropriate than the GPW: certain detainees. For a thorough analysis of the rights afforded civilians along the operational continuum, see Richard M. Whitaker, Civilian Protection Law in Military Operations: An Essay, ARMYLAW. (Nov. 1996), at 3.
55 See also Art. 4 & 27, GC.
b.
We want our soldiers to receive POW treatment from our adversary (Reciprocity).

c.
We may be wrong in our analysis, but one can rarely be criticized for affording persons greater protections than they are otherwise entitled (Public perception).'”

d.
Various issues regarding detainees in operations other than war occurred in Haiti,”Somalia,’%nd Bosnia-Her~egovina.~~

111. PRIMARY PROTECTIONS PROVIDED TO PRISONERS OF WAR
A. Protections, “The Top Ten.”6a
1.
Humane Treatment. Art. 13, GPW.61

2.
No medical experiments. Art. 13, GPW.”

3.
Protect from violence, intimidation, insults, and public curiosity. Art. 13, GPW.63

See generally, US v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992). Of note, the U.S. chose not to appeal the decision.
“See Larry Rohter, Legal Vacuum in Haiti is Testing US. Policy, N.Y. TIMES, Nov. 4, 1994, at A32. See ALSO LAWAND MILITARY OPERATIONS IN HAITI, 1994-1 995: LESSONSLEARNEDFOR JUDGE ADVOCATES,59
-72, and App. R (1 1 Dec. 95)[hereinafter Haiti AAR].
58
See Memorandum, CDR, Unified Task Force Somalia, to All Subordinate Unified Task Force Commanders, subj: Detainee Policy (9 Feb. 93).
59 See Office of the Legal Counsel to Chairman, Joint Chiefs of Staff, Information Paper, subj: Legal status of aircrews flying in support of UNPROFOR (2 June 1995); Message, Joint StaffISECSTATE, subj: POW Status of NATO Aircrews in Bosnia (2003432 Feb 94).
60 For an excellent discussion regarding the “Top Ten” protections, See Major Geoffrey S. Corn and major Michael L. Smidt, “To Be or Not to Be, That is the Question”, Conternporaty Military Operations and the Status of Captured Personnel, The Army Lawyer, DA PAM 27-50-3 19, June 1999.
“The requirement that PWs must at all times be humanely treated is the basic theme of the Geneva Conventions. Pictet, supra note 2, at 140. A good rule of thumb is to follow the “golden rule”. That is, to treat others in the same manner as you would expect to be treated or one of your fellow servicemembers to be treated if captured. In other words, if you would consider the treatment inhumane if imposed upon one of your fellow servicemembers, then it probably would violate this provision.
62 Pictet, supra note 2, at 140-41.
” Trial of Lieutenant General Kurt Maelzer, Case No. 63, reprinted in UNITEDNATIONSWARCRIMES COMMISSION,XI LAWREPORTS OF TRIALSOF WARCRIMINALS53 (1949)(parading of American prisoners of war through the streets of Rome). See Gordon Risius and Michael A. Meyer, The protectzon ofprrsoners of
93
(Jlmpter 5 POW, und Dctirrnees
4.
Equality of treatment. Art. 16, GPW.64

5.
Free maintenance and medical care. Art. 15, GPW.6i

6.
Respect for person and honor (specific provision for female POWs in~luded).~~

Art. 14, GPW.

7.
No Reprisals. Art. 13, GPW

8.
No Renunciation of Rights or Status. Art. 7, GPW.

9.
The Concept of the Protecting Power. Art. 8, GPW.&’

10.Immunities for warlike acts, but not for pre-capture criminal offenses (i.e., Noriega), or violations of the law of war.68
B. Capture -The 5 S’s (Search, Silence, Segregate, Safeguard, Speed to the rear).69 Art. 13, 16,17,19,20 GPW.
1. Authority to detain can be expressly granted in the mission statement; implied with the type of mission; or inherent under the self defenselforce protection umbrella.
war against insults andpublic curiosity, INT’LREV.RED CROSS, No. 295, (JulyIAug. 1993), at 288. This article focuses on the issue of photographing prisoners of war.
“Pictet, supra note 2, at 154.
6i Id. at 152-53.
66 Id. at 142-52
” See Levie, at 262.
The GPW does not specifically mention combatant immunity. It is considered to be customary international law. Moreover, it can be inferred from the cumulative affect of protections within the GPW. For example, Article 13 requires that prisoners not be killed, and Article 118 requires their immediate repatriation after cessation of hostilities. Although Article 85 does indicate that there are times when prisoners of war may be prosecuted for precapture violations of the laws of the detaining power, the Official Commentary accompanying Article 85 limits this jurisdiction to only two types of crimes. A prisoner may be prosecuted only for (1) war crimes, and (2) crimes that have no connection to the state of war. See Corn and Smidt, supra note 50 at n. 124.
69 DEP’TOF ARMY,FIELD MANUAL 19-40, ENEMY PRISONERS OF WAR, CIVILIAN INTERNEES AND DETAINED PERSON (Feb. 1976), at 12-4. An important component of the 5Ss often neglected is speed to the rear. EPWs can be on the move for days before they reach their final camp. According to FM 19-40, the echelon having custody of the EPW has responsibility to provide the prisoner sufficient rations during the move. Id., at 12-9.
See John L. Della Jacono, Desert S~ormTeamEPJV, MILITARYPOLICE (June 1992), at 7, for a discussion of MP EPW operations during Operation Desert Storm.
2.
The protection and treatment rights, as well as the obligations begin “. . .[F]rom the time they fall into the power of the enemy . . .”‘O (Art. 5, GPW).

3.
EPWs can be secured with handcuffs (flex cuffs) and blindfolds, as well as shirts pulled down to the elbows, as long as it is done humanely (can’t be for humiliatiodintimidation purposes).

a.     Protect against public curiosity.
(1)Art. 13 does not per se prohibit photographing an EPW. Photos may
not degrade or humiliate an EPW. In addition, balance harm to an
EPW and family against news media value. Bottom line: strict
guidelines required.”
(2)This is in stark contrast to Iraq and North Vietnam’s practice of parading POWs before the news media.
b. POW capture tags. All POWs will, at the time of capture, be tagged using DD Form 2745.”
4.     Property of Prisoners. (Art. 18, GPW)
During Desert Storm some Iraqi Commanders complained that the Coalition forces did not fight “fair” because our forces engaged them at such distances and with such overwhelming force that they did not have an opportunity to surrender. Additionally, some complained that they were merely moving into position to surrender. However, the burden is upon the surrendering party make his intentions clear, unambiguous, and unequivocal to the capturing unit. In the case of United States v. Griffen,39 C.M.R. 586 (A.B.R. 1968),pet. denied, 39 C.M.R. 293 (C.M.A. 1968), a general court-martial convicted an Army staff sergeant of murder for killing a Vietnamese prisoner of war on the order of his platoon leader.
” See DEP’TOF DEF., FMAL REPORT TO CONGRESS: CONDUCTOF THE PERSIANGULFWAR(April 1992), at
618. DEP’TOF ARMY,REGULATION,ENEMY PRISONERS OF WAR ADMINISTRATION, AND
EMPLOYMENT, COMPENSATION
•÷2-15 (2 Dec 85) provides:
a.  EPW will not be photographed except in support of medical documentation, for official
identification, or for other purposes described in this regulation.
b.  Interviews of EPW by news media will not be permitted. For purposes of this regulation
the term “interview” includes any medium whereby prisoners release information or
statements for general publication. It includes, but is not limited to, the taking of still or
motion pictures concerning EPW for release to the general public, and telephone, radio, or
television interviews or appearances, or mailing material apparently for distribution to the
general public.

Additionally, AR 190-8 provides: “Photographing, filming, and video taping of individual EPW, CI, and RP for other than internal Internment Facility administration or intelligence/counterintelligence purposes is strictly prohibited. No group, wide area or aerial photographs of EPW, CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Interment Facility commander’s chain of command. AR-190-8 at 1-5(4)(d).
72 AR 190-8 at 2-l.a.(l)(b)and (c).
a.
Weapons, ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest intelligence unit. (AR 190-8)

b.
EPWs and retained personnel are allowed to retain personal effects such as jewelry, helmets, canteens, protective mask and chemical protective garments, clothing, identification cards and tags, badges of rank and nationality, and Red Cross brassards, articles having personal or sentimental value and items used for eating except knives and forks. See Art. 18, GPW and AR 190-8.”

c.
But what about captured persons not entitled to EPW status? See Art 97, GC.”

d.
War trophies. It has consistently been the U.S. policy to limit the types and amounts of property taken from the battlefield and retained by the individual soldier. All enemy property captured is the property of the

U.S. However, the personal property of EPWs is usually protected from confiscation and seizure.” Soldiers are not even supposed to barter with EPWs for personal items.’~owever, because of perceived abuses that occurred in not enforcing this policy, Congress legislated two important provisions: 10 U.S.C. $2579″ and 50 U.S.C. $2201.'”oD has yet to
” Ltr, HQDA, DAJA-IA 198718009, subj: Protective Clothing and Equipment for EPWs. See also, Pictet, at 166, n. 2.
l4 Art. 97 essentially allows the military to seize, but not confiscate, personal property of those civilians protected by the Fourth Convention. The difference is important. Confiscate means to take permanently. Seizing property is a temporary taking. Property seized must be receipted for and returned to the owner after the military necessity of its use has ended. If the property cannot be returned for whatever reason, the seizing force must compensate the true owner of the property. See Operational Law Handbook (2004) and Elyce K.K. Santerre: From Confi~crrtior,to Contingency Con~rncti~,”: Propert;, .dcq~isirinnor, nr. Arcor th? Rat!/efiel< 1 ?A MIL L. REV. 11 1 (1989), for a more detailed discussion of the distinction between, requisition, seizure, and confiscation of private property and when it is lawful to do so.
l5 See Levie, at l I0 -1 18.
l7 Despite the Congressional requirement in 1994 for DoD to establish regulations for handling war trophies within 270 days of the statute’s enactment, DoD has yet to provide any DoD level guidance on how to handle these objects.
l8 Commonly called The Spoils of War Act of 1994, it limits the transfer of captured enemy movable property to the same procedures applicable to the similar military property. (i.e., Arms Export Control Act). It excludes “minor articles of personal property which have lawfully become the property of individual members of the armed forces as war trophies pursuant to public written authorization from the Department of Defense.” 50
U.S.C. 5 2205. The obvious intent was to exempt war trophies as outlined in 10 U.S.C. 5 2579. However, the
96 Cl7apter 5 POWs and Deftliners
implement regulations on the procedures for handling and retaining battlefield objects.
5.
Rewards for the capture of EPWs are permissible, but they must avoid even the hint of a “wanted dead or alive” mentality.19

6.
What can I ask an EPW? ANYTHING!!

a.     All POWs are required to give: (Art. 17, GPW)
(1)Surname, first name;
(2) Rank;
(3)Date of birth; and,
(4)
Serial number.

b.
What if an EPW refuses to provide his rank? Continue to treat as POW: an E-1 POW.8o

c.
No torture, threats, coercion in interrogation (Art. 17, GPW). It’s not what you ask but how you ask kg’

legislation is poorly written. Art. 18, GPW prohibits this. Only enemy public property may be seized. Enemy public property frequently includes property of a soldier used for his personal use (i.e. TA-50, a weapon). That type of property is different than a soldier’s personal property.
l9 The U.S. issued an offer of reward for information leading to the apprehension of General Noreiga. Memorandum For Record, Dep’t of Army, Office of the Judge Advocate General, DAJA-IA, subj: Panama Operations: Offer of Reward (20 Dec. 1989).This is distinct from a wanted “dead or alive” type award offer prohibited by the Hague Regulations. See FM 27-10, •÷3 1 (interpreting HR, art. 23b to prohibit “putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive.”‘).
GPW, art. 17, para. 2. See also Pictet, at 158 -9.
”
I5 UNITED NATIONSWARCRIMESCOMMISSION,LAW REPORTS OF TRIALSOF WAR CRIMINALS 101 n. 4 (1949) See Stanley J. G,lod and Lawrence J. Smith, Interrogation Under the 1949 Prisoners of War Convention, 21 Mil. L. Rev. 145 (1963); 111 COMMENTARY, 109.
supra, at 163 -4; Levie, at 106 –
There may be tensions between the military police and the military intelligence communities in this area, especially in operations other than war. The Army has charged the military police branch with responsibility for administering EPWs and Civilian Internees. See Chapter 1, AR 190-8; DEP’T OF THE ARMY, REGULATION 190-57, MILITARY POLICE: CIVILIAN INTERNEE -ADMINISTRATION, AND COMPENSATION
EMPLOYMENT, (4 Mar. 1987); and FM 19-40. Military Police units use these regulations as their guide in MOOTW. Both regulations prohibit any physical or moral coercion. See AR 190-47, para. 1-5; AR 190-8, para. 1-5d. See also FM 19-40, para. 1-13d. However, prisoners of war provide a prime resource of intelligence information. See DOD PERSIAN GULF REPORT, at 585 -586, and Haiti AAR, at 53 -56. Consequently, military intelligence personnel use various interview techniques to acquire information. See, e.g., DEP’T OF THE ARMY, FIELD
97
(1)What about use of truth serum? No, violates GPW.s2
(2)North Korean water torture of feet during the winter clearly violated Art. 17.s3
(3)Techniques such as placing the EPW at attention during interrogation, planting a cellmate, or concealing a microphone in the POW’S cell do not violate Art. 17.s4
(4)It may oflen be difficult to determine where lawful interrogation actions end and unlawful actions begin. Use of a common sense indicator is always helpful. One should ask themselves: if these actions were perpetrated by the enemy against American POWs, would one believe such actions violate international or U.S. law? If the answer is yes, avoid the interrogation technique^.^^
MANUAL 34-52, INTELLIGENCE: (28 Sept. 1992). These techniques may appear to be
INTERROGATION inconsistent with military police guidance. The judge advocate should become involved to ensure the interrogations comply with a detainee’s rights, yet affords the intelligence officer the latitude to utilize interrogation techniques authorized under the applicable law.
U.S. POWs have routinely been subjected to torture by their captors. In the Persian Gulf War, all 23 American POWs were tortured. In one technique called the “talkman,” a device was wrapped around the prisoner’s head and then attached to a car battery. See Melissa Healy, Pentagon Details Abuse ofAmerican POWs in Iraq; Gulf War: Broken Bones, Torture, Sexual Threats are reported. It could spur further callsfor War Crimes Trials, L.A. TIMES, Aug. 2, 1991, at Al. See also Nora Zimchow, Ex-POW’S Tail of a Nightmare; Marine Flier Guy Hunter Endured 46 Days of Physical and Psychological Torture in Iraqi Hands. Hefinally made a videotape denouncing the war, believing he might not live, L.A. TIMES, Mar. 31, 1991, at Al. The Iraqis did not limit their mistreatment to only U.S. prisoners. See Iraqi torturers failed to crackSAS soldier’s cover story, THE HERALD (Glasgow), Oct. 13, 1993, at 9, available in LEXIS, Nexis Library, ARCX\’v’S Glc.
For a description of the interrogation techniques used by the communists during the Korean War, see S. RPT. NO. 2832, COMEvIUNIST INTERROGATION OF AMERICANPRISONERS, 84th Cong., 2d Sess. (1957); S. COMM.ON GOV’T OP., COMMUNIST OF AMERICAN
INTERROGATION, INDOCTRINATION, AND EXPLOITATION MILITARYAND C~VILIAN 83rd Cong., 2d Sess. (1956).
PRISONERS,
See OTJAG opinion: JAGW 1961/1157,21 June 1961.
” See Ministry of Defence, United Kingdom, Treatmenf ofBritish Prisoners of War in Korea (HMSO, 1955), reprinted in, Levie, DOCUMENTS ON PRISONERS
OF WAR, at 65 1,662. This article provides a compelling account of the inhumane treatment provided U.N. POWs generally during the Korean War.
See DEP’T OF ARMY, FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION 3-1 1 (28 Sept. 92) and Glod and Smith, supra, at 155.
See FM 34-52, supra, at 1-9
Chapter 5 POWs and Dctainces
d. Your U.S. military ID card is your GC card. NOTE: Categories are I to V, which corresponds to respective rank. See Art. 60, GPW.
IV.
EPW CAMP ADMINISTRATION AND DISCIPLINE86

A.
Responsibility (Art. 12, GPW).

1. The State (Detaining Power) is responsible for the treatment of prisoners. Prisoners of war are not in the power of the individual or military unit that captured them. They are in the hands of the State itself which the individuals or military units are only agents.87
B. Locations.
1.
Land only (Art 22, GPW). However, during the Falklands War the British temporarily housed Argentine EPWs on ship while in transit to repatriation.

2.
Not near military targets (Art 23, GPW).” During the Falklands War, several Argentine EPWs were accidentally killed while moving ammunition away from their billets.

3.
Prisoners of war must be assembled into camps based upon their nationality, language and customs (Art. 22, GPW).

a.     Generally, cannot segregate prisoners based on religion or ethnic background.” However, segregation by these beliefs may be required
0
86 For a historical recount of some of the most horrific treatment of conditions faced by POWs in any war, see GAVANDAWS,PRISONERSOF THE JAPANESE:POWS OF WORLD WAR11 IN THE PACIFIC(1 994). Compare conditions U.S. POWs have historically suffered with the treatment U.S. forces have historically afforded their prisoners. See, e.g., Jack Fincher, By Convention, the enemy within never did without, SMTHSONIAN
(June 1995), at 126 (an account of U.S. treatment of German POWs during World War 11) and Gary Marx, Panama prison camp no Stalag 17, CHI.TRIB.,Jan. 8, 1990.
87 Pictet, supra note 2, at 128-29.
Iraq used U.S. and allied POWs during the Persian Gulf War as human shields in violation of Art. 19 & 23, GPW. See Iraqi Mistreatment ofPOWs, DEP’TOF STATE DISPATCI-I, Jan. 28, 1991, at 56 (Remarks by State Department Spokesman Margaret Tutwiler). See also DEP’T OF DEF., FINAL REPORT TO CONGRESS: CONDUCTOF THE PERSIANGULFWAR(April 1992), at 619 -620.
a9 Art. 34, GPW. One of the most tragic events of religions discrimination by a detaining power for religious reasons was the segregation by the Nazis of Jewish American Prisoners of War. Several Jewish American soldiers were segregated from their fellow Americans and sent to slave labor camps where “they were beaten, stared and many literally worked to death.” MITCHELLG. BARD, FORGOTTEN
VICTIMS:THEABANDONMENT OF AMERICANS IN HITLER’SCAMPS (1994). See also Trial of Tanaka Chuichi and Two Others in UNITED NATIONS WARCRIMESCOMMISSION, XI LAW REPORTS OF WAR CRIMESTRIALS62 (1949) (convicting Japanese prison guards, in part, for intentionally violating the religious practices of Indians of the Sikh faith).
especially when they are a basis for the conflict. Such as in Yugoslavia: Serbs, Croats, and Muslims; Rwanda: Hutus, Tutsis; and Chechnya.
b.
Political beliefs. Art. 38, GPW, encourages the practice of intellectual pursuit. However, the U.N. experience in EPW camps has demonstrated that pursuit of political beliefs can cause great discipline problems within a camp. In 1952, on Koje-do Island, riots broke out at the EPW camps instigated by N. Koreans EPW communist activists. N. Korean EPW extremist groups murdered scores of prisoners sympathetic to South Korea. During the rioting, EPWs captured the camp commander, Brigadier General Dodd.”

C.
What Must Be Provided?

1.
Quarters equal to Detaining forces. Art. 25, GPW (total surface & minimum cubic feet).

2.
Adequate clothing considering climate. Art. 27, GPW.

3.
Canteen. Art 28, GPW.”

4.
Tobacco. Art. 26, GPW.”

5.
Recreation Art. 38, GPW.

6.
Religious accommodation Art. 34, GPW.

” DEP’T OF THE ARMY,OFFICE OF THE PROVOSTMARSHALL,REPORTOF THEMILITARYPOLICEBOARDNO. 53-4, COLLECTION OF MATERIAL mLATING TO THE PRISONER OF WAR lNTEKNMENT
AND DOCUMENTATION PROGRAMIN KOREA,1950-1953 (1954). See also WALTERG. HERMES,TRUCETENTAND FIGHTING FRONT (1966), at 232-63; The Communisb War in POWCamps, Dep’t of State Bulletin, Feb 6, 1953, at 273; Harry P Ball, Prisoner and War Negotiations. The Korean Experience and Lesson, in 62 INTERNATIONAL
LAW STUDIES:THEUSE OF FORCE,HUMANRIGI-ITS AND GENERALINTERNATIONAL LEGALISSUES, VOL. 11,292-322 (Lillich & Moore, eds., 1980).
9′ The U.S. does not provide EPWs with a canteen, but instead provides each EPW with a health and comfort pack. Memorandum, HQDA-IP, 29 Oct. 94, subj: Enemy Prisoner of War Health and Comfort Pack.
” See Memorandum, HQDA-10, 12 Sept. 94, subj: Tobacco Products for Enemy Prisoners of War. During Desert Stom, the 301st Military Police EPW camp required 3500 packages of cigarettes per day. Operation Deserts Storm: 301st Mililary Police EPW Camp Briefing Slides, available in TJAGSA, AD10 POW files. See also WILLIAM G. PAGONIS,MOVINGMOUNTAINS: LESSONS IN LEADERSHIP AND LOGISTICS FROM THE GULFWAR 10 (1992),for LTG Pagonis’ views about being told he must buy tobacco for EPWs.
Cl7upter 5 POWs and Detainees
7.     Food accommodation Art. 26 & 34, GPW.
a.     If possible, utilize enemy food stocks and let them prepare their own food. Art. 26, GPW.
8.     Copy of GPW in POWs own language. Copies available at:
ICRC Delegation to the UN 80 1 2nd Ave, 1 F1, New York, NY 10017
(212) 599-6021 FAX: (212) 599-6009
9. Due process. Art 99 -108, GPW.
10.Hygiene Art. 29, GPW.

a.
Separate baths, showers and toilets must be provided for women prisoners of war. Art 29, GPW.

D.
EPW Accountability. Art. 122 & 123, GPW. 91

1.
Capture notification-PWIS.     This system was utilized during Operations Desert Storm and Operation Uphold Democracy.

2.
EPW personal property. Art. 16, GWS; AR 190-8.

3.
EPW death. Art. 120 & 121, GPW.

a.
8 POWs died while under U.S. control during Desert Storm, 3 more died under Saudi control after transfer from U.S. custody.

b.
Any death or serious injury to a POW requires an official inquiry.

4.     Reprisals against EPWs are prohibited. Art. 13, GPW.94
”See Vaughn A. Ary, Accounting for Prisoners of War: A Legal Review of the United States Armed Forces Identzjication and Reporting Procedures, ARMYLAW., August 1994, at 16, for an excellent review of the United States system of tracking EPWs. See also Robert G. Koval, The National Prisoner-ofwar Information Center, MILITARYPOLICE (June 1992), at 25.
In Vietnam, by 1965 scores of U.S. servicemen had become prisoners of war. The US argued for full protections under the GPW as by mid-1965 the hostilities had risen to the level of an armed conflict. See
101
CIt~prerS
POW.. und Defaznee.,
E. Transfer of POWs. Art. 46 -48, GPW
1.
Belligerent can only transfer EPWs to nations who are parties to the Convention.

2.
Detaining Power remains responsible for POWs care.

a.
There is no such thing as a “U.N.” or “coalition” EPW.”

b.
To ensure compliance with the GPW, U.S. Forces routinely establish liaison teams and conduct GPW training with allied forces prior to transfer EPWs to that nation.96

Letterfiom the ICRC to the Secretary of State dated 11 June 1965, 4 I.L.M. 1171 (1965). U.S. Continues to Abide by Geneva Conventions of 1949 in Viet Nam, DEP’T OF STATE BULLETIN, Sept. 13, 1965, p. 3. N. Vietnam argued that they were committing “acts of piracy and regard the pilots who have carried out pirate raids . .. as major criminals. . . .” Hanoi said to Hinl’ Trial ofAmericans, N.Y. TIMES, Feb. 12, 1966, at A12. See also Hearings on American Prisoners of War in Southeast Asia 1971 before the Subcomm. on National Securiy Policy and Scientific Developments of the House Comm. on Foreign Affairs, 92d Cong., 1st Sess., at 448 -49 (1971).
To complicate matters, the U.S. initially transferred captured Viet Cong to South Vietnam. South Vietnam considered the V.C. insurgents subject solely to their domestic law, and routinely denied EPW status to them. Shortly after the trial and execution of several Viet Cong by the South Vietnamese government, North Vietnam retaliated by executing Captain Humbert R. (Rocky) Versace and Sergeant Kenneth Roarback in September 1965. See Neil Sheehan, Reds’Execution of 2 Americans Assailed by US., N.Y. TIMES, Sept. 28, 1965, at Al. Shortly thereafter, the U.S. policy towards the Viet Cong changed. U.S. policy became, V.C. captured “on the field of battle” would be afforded POW status. See U.S. MILITARY ASSISTANCE COMMAND, VIETNAM,DIRECTIVE381-1 1, Exploitation of Human Sources and Captured Documents, 5 August 1968. See also THE HISTORY OF MANAGEMENT OF POWS: A SYNOPSIS OF THE 1968 US ARMY PROVOST MARSHAL GENERAL’SSTUDY ENTITLED “A REVIEW OF UNITED STATES POLICY ON TREATMENT OF PRISONERSOF WAR” (1975), at 49 -55. Captain Versace was from Madison, Wisconsin and graduated from West Point in 1959. See UNITED STATES MILITARYACUEMY, THE 1959 HOWITZER 473 (1959)(includes a picture of Captain Versace). On July 9, 2002, President G. W. Bush posthumously awarded Captain Rocky Versace the Medal of Honor for the extraordinary resistance he displayed during his brutal captivity in North Vietnam PW camps.
Acts of reprisals have not always been prohibited. In fact, during the Civil War, the War Department issued General Order 252 of 1863 whereby President Lincoln ordered that “for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy or sold into slavery . . . a rebel soldier shall be placed at hard labor on the public works, and continued at such labor until the other shall be released and receive treatment due to a prisoner of war. WILLIAMWINTHROP, LAWAND PRECEDENTS
MILITARY     796 (2d ed. 1920).
See Albert Esgain and Waldemar Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies, MIL. L. REV.BICENT. ISSUE 303, 328-330 (1975), for a discussion of the practical problems faced with this provision.
” See, e.g., Memorandum of Agreement Between the United States of America and the Republic of Korea on the Transfer of Prisoners of WarICivilian Internees, signed at Seoul February 12, 1982, T.I.A.S. 10406. See
102 Chapter 5 PO Ws and Dctcrince,
c.
Requires Assistant Secretary of Defense for International Security Affairs appr~val.~’

F.
Complaints and Prisoners’ Representatives (PR). Art 78-81, GPW.

1.
Voting for a PR conflicts with Code of Conduct SRO requirement (see discussion in Section V below).

2.
SRO will take command.

3.
EPWs have standing to file a Habeas Corpus action under 28 U.S.C. $ 2255 to seek enforcement of their GPW rights.

1.     Rank has its privileges.
a.
Officers: can’t compel them to work.

b.
NCOs: you can compel them to supervise only.

c.
Enlisted: you can compel them to do manual labor.

d.
If they work, you must pay them.

e.
Retained Personnel shall not be required to perform any work outside their medical or religious duties. This is an absolute prohibition that includes work connected to the administration and upkeep of the camp. Art. 28(c), GWS.

2.
Detainee status.99

3.
Compensation (Art. 60, GPW).lOO8 days paid vacation annually. Art. 53, GPW.

ah UNITEDSTATESFORCESKOREA,REGULATION 190-6, ENEMY TRANSFERRED TO REPUBLIC OF
PRISONERS KOREACUSTODY(3 Apr. 1992). See also DOD PERSIANGULFREPORT,at 583; and, Haiti AAR, supra note 19, 59 -72 and App. R, for an overview of Detainee operations in Haiti.
” DOD DIR. 23 10.1, yC(3)
98 See Howard S. Levie, The Employment of Prisoners of War, 23 MIL. L. REV.41, and Levie, at 213 -254. See generally, Frank Kolar, An Ordeal That Was Immortalized; Not all was fiction in the story ofthe bridge on the River Kwai, MIL. HISTORY(Feb. 1987), at 58.
See Art. 40 & 5 1, GC for an analogy. Detainee work should relate to feeding, sheltering, clothing, transport, and the health of other detainees or other nationals of the near-occupied territory.
103
Chapter S POPF’s and Defainees
4.     Type of Work
a.
Work cannot be unhealthy or dangerous, unless prisoners of war volunteer. Work cannot be humiliating. Art. 52, GPW.

b.
Work such as camp administration, installation, and maintenance is authorized, as well as work relating to agriculture; commercial business, and arts, and crafts; and domestic service without restriction to military character or purpose.1o1

c.
Industry work (other than in the metallurgical, machinery, and chemical industries); public works and building operations; transport and handling of stores; and public utility services is authorized provided it has no military character or military purpose. Art. 50, GPW.

d.
Work in the metallurgical, machinery, and chemical industry is strictly prohibited. Art. 50, GPW.

H.
Camp Discipline.

1. Disciplinary sanctions (Art. 15 type punishment).
a.
Must relate to breaches of camp discipline.

b.
Only 4 types of punishments authorized (Art. 88, GPW). Max. punishments are (Art. 90, GPW):’02

(1)Fine: ?4pay up to 30 days.
(2)
Withdrawal of privileges, not rights.

(3)
2 hours ~f fatiguc duty pe;-dzy for 3C days. (4)Confinement for 30 days. Art. 87, 89,90,97, & 98, GPW.

c.
Imposed by the camp commander. Art. 96, GPW

2.     Judicial sanctions.
loo See DEP’T OF THE ARMYREGULATION37-1, FNANCIALADMINISTRATION:
ARMY ACCOUNTING AND FUND CONTROL (30 Apr. 1991), Chapter 36. ’01Pictet, supra note 2 at 150-51. ’02 The GC provides the same maximum punishments for civilian internees. See Art. 1 19, GC.
a. EPWs pre-capture offenses v. post-capture offenses.
(1)Pre-capture: GCM or federal or state court if they have jurisdiction over U.S. soldier for same offense. Art. 82, 85, GPW.lO1
(2)Post-capture: any level court-martial allowed under UCMJ.
Jurisdiction for post-capture offenses is found under Art. 2(9), UCMJ
(Art. 82, 102, GPW).
(3)
Court-martial or military commission (Art. 84). [BUT note effect of Art. 102, GPW is that U.S. must use a court-martial unless policy is changed to allow trial of a U.S. service members before a military

b.
Detainees.

(2) Local National Court.
’01 See 10 U.S.C. •.802(a)(9) and 18 U.S.C. $3227
It should be noted that at least 12 nations have made a reservation to Art. 85, GPW. The reservation in essence would deny a POW their protected status if convicted of a war crime. North Vietnam used their reservation under Art. 85 to threaten on several occasions the trial of American pilots as war criminals. See MARJORIEWHITEMAN, OF INTERNATIONAL
10 DIGEST LAW 23 1 -234 (1968); J. Burnham, Hanoi’s Special Weapons System: threatened execution of captured Americanpilots as war criminals, NAT.REV.,Aug. 9, 1966; Dangerous decision: capturedAmerican airmen up for trial?, NEWSWEEK,
July 25, 1966; Deplorable and repulsive: North Vietnamplan toprosectde captured US. pilots as war criminals, TIME, July 29, 1966, at 12 -13. See generally, Joseph Kelly, PW’s as War Criminals, MIL.REV. (Jan. 1972), at 91.
’04 See Major Timothy C. MacDonnell, Military Commissions and Courts-Martial: A BriefDiscussion on the
Constitutional and Jurisdictional Distinctions Between the Two Courts, The Army Lawyer, March 2002. For
an excellent historical use of military commissions, See Major Michael 0. Lacey, Military Commissions: A Historical Survey, The Army Lawyer, March 2002.
lo’ The current War on Terrorism includes the possible use of Military Commissions as a tool in combating terrorism (President Bush’s 13 Nov 01 Military Order). There is much speculation that military commissions will begin shortly for a limited number of terrorists, including some of the GITMO detainees. The rules and procedures have been published (SECDEF 21 Mar 02 Militaly Commissions Order No. 1). Additionally, on 30 April 2003, SECDEF issued eight instructions (Military Commissions Instructions 1 through 8) that published the crimes and elements of possible offenses (Military Commission Instruction No. 2), as well as further guidance and procedures in preparation of any military commission. For further information regarding the use of military commissions see the above note as well as See Robinson 0. Everett and Scott L. Silliman, Forums For Punishing Oflenses Against the Law ofNations, 29 WAKE FOREST L. REV. 509 (1994). See also Major General (Ret.) Michael J. Nardotti, Jr, Military Commissions, The Army Lawyer, March 2002. See also American Bar Association, Task Force on Terrorism and the Law Report and Recommendation on Military Commission dated January 4,2002 (republished in The Army Lawyer, March 2002).
Chapter 3 POKYand Detainees
c.     Due process required.
(1)POWs: same as detaining powers military forces. Art 99 -108, GPW.
(2)Detainees. What due process they receive depends upon status: GC,
common Art. 3, or minimal human rights protection with Host Nation
law.
(3)Right to appeal. Art 106, GPW
I.     Escape of Prisoners of War.
1.     When is an escape successful:1o6 (Art. 91, GPW).
a.
Service member has rejoined his, or Allies’, armed forces; or

b.
Service member has left the territory of the Detaining power or its ally (i.e., entered a neutral country’s territ~ry).~~’

2.     Unsuccessful escape.
lob Between 1942 and 1946,2,222 German POWs escaped from American camps in the U.S. At the time of repatriation, 28 still were at large. One remained at large and unaccounted for in the U.S. until 1995! None of the German POWs ever successfi~lly escaped. During World War 11,435,788 German POWs were held on American soil (about 17 divisions worth). Of all the Germans captured by the British in Europe, only one successfuIly escaped and returned to his own forces. This German POW did this by jumping a prisoner train in Canada and crossing into the U.S., which at that time was still neutral. ALBERT BIDERMAN, MARCHTO CALUMNY:THE STORY OF AMERICANPOW’S IN THE KOREAN WAR 90 (1979) Jack Fincher, By Convention, the enemy within never did without, SMITHSONIAN KRAMMER, NAZI
(June 1995), at 127. See also ARNOLD PRISONERSOF WARIN AMER~CA(1994).
See, A. Poi-La,. Sficci, F,.or,i Libby io Lib~i.i~, (Apr. 197!>,nt 53, fsr :.n
MIL.E\.’. intcxsticg recount 2f how 109 union soldiers escaped a Confederate POW camp during the Civil War. See ESCAPEAND EVASION: 17 TRUE STORIES OF DOWNEDPILOTS WHO MADE IT BACK (Jimmy Kilbourne, ed. 1973), for stories of servicemen who successful avoided capture after being shot down behind enemy lines or those who successfully escaped POW camps after capture. The story covers World War I through the Vietnam War. According to this book, only 3 Air Force pilots successfully escaped from captivity in North Korea. Official Army records show that 670 soldiers captured managed to escape and return to Allied control, however, none of the successful escapees had escaped from permanent POW camps. See Paul Cole, I POWIMIA Issues, The Korean War 42 (Rand Corp. 1994). See also George Skoch, Escape Hatch Found: Escapingfiom a POW camp in Italy was one thing. The next was living off a war-torn land amongpartisans, spies, Fascists and German Patrols, MIL.HISTORY (Oct. 1988), at 34.
lo’
See SWISS INTERNMENT OF PRISONERSOF WAR: AN EXPERIMENT HUMANE
IN INTERNATIONAL LEGISLATION (Samuel Lindsay, ed., 1917), for an account of POW internment
AND ADMINISTRATION procedures used during World War I.
Chapter 5 POVfs uacl Dctc~inces
a.
Only disciplinaly punishment for the escape itself (Art. 92, GPW). See also Art. 120, GC.

b.
Offenses in furtherance of escape.lo8

(1)Disciplinary punishment only: if sole intent is to facilitate escape and no violence to life or limb, or self-enrichment (Art. 93, GPW). For example, a POW may wear civilian clothing during escapesattempt without losing his POW status.lo9
(2)
Judicial punishment: if violence to life or limb or self-enrichment. Art. 93, GPW.

a.
Some authors argue no punishment can be imposed for escape or violence to life or limb offenses committed during escape if later recaptured. Art 91, GPW; Levie.

b.
However, most authors posit that judicial punishment can occur if a POW is later recaptured for his previous acts of violence.

c.
Issue still debated so U.S. policy is not to return successfully escaped POW to same theater of operations.

4.     Use of force against POWs during an escape attempt or camp rebellion is lawful. Use of deadly force is authorized “only when there is no other means of putting an immediate stop to the attempt.”l1•‹
’08 But see 18 U.S.C. S 757 which makes it a felony, punishable by 10 years confinement and $10,000 to procure “the escape of any prisoner of war held by the United States or any of its allies, or the escape of any person apprehended or interned as an enemy alien by the United States or any of its allies, or . . . assists in such escape . . ., or attempts to commit or conspires to commit any of the above acts. . . .”
’09 Rex v. Krebs (Magistrate’s Court of the County of Renfrew, Ontario, Canada), 780 CAN.C.C. 279 (1943). The accused was a German POW interned in Canada. He escaped and during his escape he broke into a cabin to get food, articles of civilian clothing, and a weapon. The court held that, since these acts were done in an attempt to facilitate his escape, therefore, he committed no crime.
“O Pictet, at 246. See also id., at 246-248. Compare Trial ofAlbert Wagner, XI11 THEUNITEDNATIONS WAR CRIMES COMMISSION, LAW REPORTS OF THE TRIALOF WAR CRIMINALS,Case No. 75, 1 18 (1 949), with Trial of Erich Weiss and Wilhelm Mundo, XI11 THE UNITEDNATIONSWARCRIMESCOMMISSION,LAWREPORTS OF THE TRIALOF WARCRIMINALS,Case NO.81,149 (1949).
Art. 42, GPW provides: “The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.”
J.     Repatriation of Prisoners of War.”‘
1. Sometimes required before cessation of hostilities. Art. 109, GPW.
a.
Seriously sick and wounded POWs whose recovery is expected to take more than 1 year. Art. 110, GPW.

b.
Incurable sick and wounded. Art. 110, GPW.

c.
Permanently disabled physically or mentally. Art. 110, GPW

d.
Used in Korean War: 6640 North Korea & Chinese for 684 UN soldiers. Operation Little Switch.

e.
This provision is routinely ignored.

2.     After cessation of hostilities.
a.     Must it be done?
(1)Art. 118 provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
(2)Rule followed through W.W.11. Result: thousands of Russian POWs executed by Stalin upon forced repatriation.
(3)U.N. command in Korea first established principle that POWs do not have to be repatriated, if they do not so wi~h.1’~ Logic supported by Pictet.
3. During a cease-fire or Armistice.
a.     CW2 Hall incident.”‘
(1)Probable basis for repatriation: Art. 118.

I”     For a thorough list of resources on this issue, see BIBLIOGRAPHY OF PRISONERSOF WAR
ON REPATRIATION (1960), a copy of which is maintained by the TJAGSA Library.
]IZ See R.R. Baxter, Asylum to Prisoners of War, BRITISHYEARBOOKINT’L L. 489 (1953).
]I3 See Scott R. Morris, America’s Most Recent Prisoner of War: The WO Bobby Hall Incident, ARMY LAW.,
Sept. 1996, at 3.

108
Clmpte~5 I’OWs and Delainees
(2)
Art. 117 provides: “No repatriated person may be employed on active milita~y service.” This only applies to Art. 109,110 repatriations.

b.
Legally there is no problem going back to duty in S. Korea.l14

V. CODE OF CONDUCT.
A. Department of Defense Instruction 1300.2 1 dated January 8,200 1 implements the policy, assigns responsibilities, and prescribes procedures under DoD Directive 1300.7, “Training and Education to Support the Code of Conduct,” December 8,2000.
i.
DoDi i330.2 1 also inciuaes an outstanding outline that provides guidance to train members of the Armed Forces in support of the CoC.

B.
The Commander, United States Joint Forces Command is the DoD Executive Agent. The Joint Personnel Recovery Agency (JPRA) is the Office of Primary Responsibility (OPR) for Code of Conduct training and education measures.l15

C.
History

1. Throughout our history there had been acts of POW misconduct. Some of the POW misconduct included:
a.
First American POW “turncoat” occurred in Revolutionary War. Later, he was convicted of treason. Republica v. M’Carty, 2 U.S. 86 (1781).

b.
U.S. War Dept G.O. 207 (1863) made it the duty of a soldier captured by the Confederates to escape. Union soldiers collaborated with Confederates forces in Andersonville to stop tunneling attempts.

c.
In WW 11, prisoners collaborated. U.S. v. Provoo, 124 F. Supp. 185

(S.D.N.Y.
1954), rev’d, 21 5 F. Supp. 531 (2d Cir. 1954)(mistreatment of fellow POWs and making radio broadcasts for Japanese).

d.
During the Korean War, a conservative estimate is 30% of U.S. personnel collaborated to some degree with the enemy.l16

‘I4     Or was there? See The Korean Armistice Agreement, para. 52, reprinted in, DA PAM.27-1, at 210.
‘I5 DoDI 1300.21, “Code of Conduct (CoC) Training and Education, January 8,2001 [hereinafter DoDI 1300.21].
2.
In 1955, President Eisenhower issued E.O. 10631 creating the modem day concept of the Code of Conduct (CoC) in response to Korean War POW conduct. The CoC provides guidance to U.S. POWs as to their responsibilities and obligations as members of the U.S. Armed Forces.

3.
Between 1955 and 1979 DoD issued guidance on the Code of Conduct five times.ll’

4.
Most recent change did not substantively change the Code of Conduct. It only made the Code gender neutral. See E.O. 12633.

5.
The CoC contains six brief Articles that addresses those situations and decision areas that all personnel could encounter. It includes basic information useful to U.S. POWs in their efforts to survive honorably while resisting their captor’s efforts to exploit them to the advantage of the enemy’s cause and their own disadvantage.”‘

6.
Code of Conduct Applies Regardless of Service member’s “Status” (i.e., MOOTW).119

7.
Code of Conduct is not a Punitive Regulation or General Order. It is a Moral Code rather than a legal code.”~owever, a violation of the Code of

]I6 The treatment of American POWs by the North Koreans was some of the worst conditions in history. Of the 6,656 Army soldiers taken prisoner during the war, only 3,323 were ultimately repatriated. Julius Segal, FACTORSRELATED TO THE COLLABORATION OF U.S. ARMY PW’S IN KOREA 4
AND RESISTANCEBEHAVIOR (Dec. 1956). See Note: Misconduct in the Prison Camp: A Survey of the Law and an Analysis of the Korean Cases, 56 COL.L. REV 709 (1956), for a detailed factual and legal analysis of Korean POWs experiences.
DoD issued guidance through Dep’t of DeE, Pamphlet 8-1, U.S. Fighting Man’s Code first issued in November 1955 and revised three times. DoD also issued in July 1965, DoD Dir. 1300.7, Training and Gducaiiu~i &lcas~~rcs the Codc of Conduc: (July 8, !36?). I1owcvc:-,this guidnnceleft it
Ncccssal.y to SLIPPO~~ to the individual services to develop, interpret, and train its servicemembers on the Code. This lead to interpretation problems by U.S. POWs in North Vietnam.
Notice that the code applies to servicemembers. This can create a problem when civilians become prisoners of war. See Michael Kalapos, A Discussion Of The Relationship Of Military And Civilian Contractor Personnel In The Event Members Of Both Groups Become Prisoners of War (1987) (unpublished Executive Research Project, Industrial College of the Armed Forces), available in DTIC, ref. # AD-BI 15 978; James Clunan, Civilian-Military Relations Among Prisoners of War in Southeast Asia: Applications Today (1987)(unpublished Executive Research Project, Industrial College of the Armed Forces), available in DTIC, ref. # AD-B 1 15 905.
12′
See generally, Richard E. Porter, The Code of Conduct: A Guide to Moral Responsibility, 32 AIR. UNlV REV. 107 (Jan. -Feb. 1983).
Conduct may also be a violation of the UCMJ. Nothing in the CoC conflicts with the UCMJ. Some examples of possible violations include:
a.
DisrespectDisobey SRO;

b.
Aiding the enemy;

c.
Mutiny and sedition;

d.
Cruelty and maltreatment; and,

e.
Misconduct as a prisoner.”l

f.
14 former POWs were court-martialed after Korea.lZ2

g.
Attempts were made after Vietnam to prosecute POWs but for “policy” reasons this did not occur.’23 Note the Garwood exception.””

12’See Charles L. Nichols, Arlicle 105, Misconduct as n Prisoner, 11 JAG. L. REV. 393 (Fall 1969). During
the Korean War, at least 24 American POWs informed on other POWs during escape attempts. “Twenty-two percent of returning PW’s report being aware of outright mistreatment of prisoners by fellow prisoners —
including beatings resulting in death ….”JULIUS SEGAL,FACTORSRELATED TO THE COLLABORATION
AND RESISTANCE BEHAVIOROF U.S. ARMY PW’S IN KOREA33,90 (Dec. 1956).
Iz2 See, e.g., Unitedstates v. Floyd, 18 C.M.R. 362 (A.B.M.R. 1954); Unitedstates v. Dickenson, 17 C.M.R. 438 (A.B.M.R. 1954), afd20 C.M.R. 154 (C.M.A. 1955); UnitedStntes v. Batchelor, 19 C.M.R. 452
(A.B.M.R. 1954). See also Edith Gardner, Coerced Confessions ofPrisoners of War, 24 GEO. WASH.L. REV. 528 (1956). Eleven of the fourteen were ultimately convicted.
There are four reasons presented by DoD to explain why collaborators were not prosecuted after Vietnam.
1.
The Debriefers were instructed not to actively seek accusations because the emphasis was on gathering intelligence from the POWs

2.
The Secretary of Defense had made a public statement saying no POWs who made propaganda statements would be prosecuted.

3.
The service TJAGs said public opinion made convictions unlikely for POWs, who had already served extended periods of captivity in inhumane conditions.

4.
The wording in the Manual for Courts-Martial implied that a member of one service component did not have to obey orders of superiors of a different component. [The MCM was amended on 3 Nov. 77 to correct this.]

See The Code of Conduct: A Second Look (U.S. Air Force Productions, 198Jarchive ref.# AFL 095-034- 045, Pin #5 11901. See generally, Miller v. Lefman, 801 F.2d 492 (D.C. Cir. 1986). LtCol Miller, U.S.M.C. was a POW that the SRO preferred charges against after the war.
12* In 1965, Marine Robert Garwood was captured by the enemy in Vietnam. In October, 1973, he saw 15/20 American POW’s. In March, 1975, he saw 20122 American POW’s. In July, 1975, he saw 6 American POW’s. In July, 1977, he saw one American POW. In December, 1977, he saw 20130 American POW’s. In December,
111
C1iupfc.r 3 POJt’s uncl Detainees
D. The Six Articles
1.
Article I -“I am an American fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.”

2.
Article I1 -I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.”

3.
Article 111 -“If I am captured, I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.”

a.
An examples of continuing to resist by all means available included the use of Box 25 (tap code) by Vietnam POWs (modified Morse Code).”j

b.
Is Art. 111 of the Code of Conduct inconsistent with POW status?’26

A  B  C  D  E
F  G  H  I  J
L  M  N  O  P
Q  R  S  T  U
V  W  X  Y  Z

(l)No, even during escape attempt, once POW is outside detaining powers immediate control, POW retains status but detaining power can
1978, he saw 617 American POW’S. In 1979 Private First Class Robert Garwood, came home after 14 years as a Prisoner of War. He was charged with wartime desertion, enemy collaboration, and other crimes. He was found not guilty on all charges except collaboration. He was not debriefed on his knowledge of LIVE POW’S until 1985, six years after coming home. During his trial, his lawyer said “Bobby’s biggest crime was that he survived.” As it is, Bobby Garwood was a major embarrassment to two governments: the Socialist Republic of Vietnam, for their claiming no living Americans remain involuntarily in their country,’and to the U.S. for believing them.
’25See Bobby D. Wagnor, Communicafion: the key element to prisoners ofwar swvival, 23 AIR. UNIV. REV. 33 (May -June 1976). Box Code is also discussed in great detail in the PBS documentary “Return with Honor.”
’26See generally, Elizabeth R. Smith, Jr., The Code of Conduct in Relation to International Law, 31 MIL. L. REV. 85 (1966).
Chapter 5 POWs and Derainces
use all necessary means to prevent his successful escape, including deadly force. Art. 5 & 42, GPW.
c.
Retained personnel exception: the requirement to escape does not apply to doctors/chaplains.

d.
SRO can authorize temporary parole to perform acts that will materially contribute to the welfare of the prisoner or fellow prisoner. FM 27-10, para. 187b.

4.     Article IV -“If I become a Prisoner of War, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmhl to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.”
a.
SRO is the commander regardless of service branch.lZ7

b.
By E.O. 12018, Retained Personnel cannot be SROs. Being an SRO would be inconsistent with their retained status.

5.     Article V -“When questioned should I become a POW, I am required to give my name, rank, service number and date of birth. I will evade answering any further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmhl to their cause.”
a.     POW Statements: Do they violate the Code?
(1)     USS PUEBLO crew detained after being seized in international waters (physical torture). No Code violation.
(2)LT Zaun did not violate the Code of Conduct.””
(3)Key words are “resist” and to the “utmost of gability.”
See Donald L. Manes, Jr., Barbed Wire Command: The Legal Nature of the Command Responsibilities of the Senior Prisoner in a Prisoner of War Camp, 10 MIL.L. REV. 1 (1960), and John R. Brancato, Doctrinal Deficiencies in Prisoner of War Command, AIRPOWERJ. (Spr. 1988), at 40, for some of the problems the SRO faces during captivity.
See also J. Jennings Moss, Iraq tortured all Americans captured,” WASH.TIMES,Aug. 2, 1991, at Al; Melissa Healy, Pentagon Details Abuse ofAmerican POWs in Iraq; Gulf War: Broken Bones, Torture, Sexual Threats are Reported. It could spur further calls for War Crimes Trial, L.A. TIMES,Aug. 2, 1991, at Al; and JOHN NORTON MOORE, CRISIS INTHE GULF: ENFORCING
THE RULE OF LAW70 -75 (1994), for accounts of the abuse U.S. POWs were subjected to during the Gulf War.
113
Cllnpt” POKYunrl Defninees
(a)
Bounce back theory centered on those key words (developed by an SRO while in the “Hanoi Hilton”).

(i)
Resist as long as possible. The factors that effect a POWs ability to resist are:

(a)
Shock of captivity;

(b)Wounds or illness;
(c) Malnutrition; and,
(d)Exploitation by captors. For example, the North Vietnamese prison guards would tell U.S. POWs of their obligations under the Code of Conduct. 12’
(e)
Disease used as a means to influence.

(ii)
If broken, give as little as possible. COL Rowe identifies three levels of information:13o

(a)
Information they already possess or could easily acquire from other readily available sources.

(b)Information whose value diminishes over time (perishable).
(c) Information where you “bite the bullet.”131
(iii) Regroup and begin to resist again.
(iv) Don’t be overwhelmed by guilt. (4)l don’t know” is the hardest answer for an interrogator to break. (5)Humor is the greatest weapon -Americans laugh when they get hurt.
Experiences of a POW (TJAGSA Productions, Sept. 198.5). This two hour videotape captures the incites of COL Nick Rowe. The North Vietnamese captured COL Rowe in 1964. He spent 5 112 years as a POW until he successfully escaped. COL Rowe’s experiences and advice were instrumental in developing SERE training. Tragically, COL Rowe was assassinated in the Philippines in December 1989.
Id.
Chapter 5 POWs and Detuinces
(6)Does a POW violate the Code if he writes a letter to his family? No. It’s not in response to questioning.
(7)’LConfessions” to war crimes may result in loss of POW status if later tried. See reservations to Art. 85, GPW in Pictet, at 423 -427.
6. Article VI -“I will never forget that I am an American, responsible for my actions and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.”
E.     Code of Conduct Training as part of LOW Training.
“The most consistent unsolicited statement made by Southeast Asia Prisoners of Wnv covlcwv! the needfor improwd nnd z!nij?ofor.mf~viningsc thatfiitzire prisoners wouldall be working togetherfiom the same and the best ground rules.
1.     Should JAs be teaching this? Why not, if no Survival, Evasion, Resistance and Escape (SERE) program.
a.
JAs are no less qualified than any other non-SERE graduate.

b.
JAs can combine and distinguish between the legal and moral obligations.

c.
Code of Conduct instruction meshes well with other POW classes we already teach.

2.
“John Wayne doesn’t appear at POW camps.”‘”

3.
L’Return with Honor”13J

‘I’     The Code of Conduct: a Second Look (U.S. Air Force Productions)
‘I3Experiences of a POW (TJAGSA Productions, Sept. 1985). A great tool for teaching Code of Conduct.
‘IJAn outstanding PBS Home Video documentary. This 102-minute videotape is available from PBS under the “The American Experience” series. Return with Honor” is hosted by Tom Hanks and it details the experiences of U.S. POWs during the Vietnam War. It is a powerful and useful tool in teaching the Code of Conduct as the U.S. POWs discuss various ways they survived their captivity with honor.
Note: This regulation has been re-formatted for this publication. APPENDIX
A
UNITED STATES CENTRAL COMMAND
7115 South Boundary Boulevard
MacDill Air Force Base, Florida 33621 -5 101

REGULATION NUMBER 27-1 3 07 FEB 1995
Legal Services
CAPTURED PERSONS. DETERMINATION OF ELIGIBILITY
FOR ENEMY PRISONER OF WAR STATUS

1.
PURPOSE. This regulation prescribes policies and procedures for determining whether persons who have committed belligerent acts and come into the power of the United States Forces are entitled to enemy prisoner of war (EPW) status under the Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949 (GPW).

2.
APPLICABILITY. This regulation is applicable to all members of the United States Forces deployed to or operating in support of operations in the US CENTCOM AOR.

3.
REFERENCES.

a.
Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949.

b.
DA Pamphlet 27-1, Treaties Governing Land Warfare, December 1956.

c.
FM 27-10, The Law of Land Warfare, July 1956.

d.
J. Pictet, Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, International Committee of the Red Cross.

4. GENERAL.
. Pcrsons who ha-vc coinmittcd bclligercnt acts and nre cnptnxd cr otherwisp ccme into the power of the United States Forces shall be treated as EPWs if they fall into any of the classes of persons described in Article 4 of the GPW (Annex A).
b.
Should any doubt arise as to whether a person who has committed a belligerent act falls into one of the classes of persons entitled to EPW status under GPW Article 4, he shall be treated as an EPW until such time as his status has been determined by a Tribunal under this regulation.

c.
No person whose status is in doubt shall be transferred from the power of the United States to another detaining power until his status has been determined by a Tribunal convened under GPW Article 5 and this regulation.

Chupter 5 POWs untl Detuinces
5. DEFINITIONS.
a.
Belligerent Act. Bearing arms against or engaging in other conduct hostile to United States’ persons or property or to the persons or property of other nations participating as Friendly Forces in operations in the USCENTCON AOR.

b.
Convening Authority. An officer designated by the Commander, U.S. Central Command (CENTCOM) to convene GPW Article 5 Tribunals.

c.
Detainee. A person, not a member of the US Forces, in the custody of the United States Forces who is not free to voluntarily terminate that custody.

d.
Enemy Prisoner of War (EPW). A detainee who has committed a belligerent act and falls within the one of the classes of persons described in the GPW Article 4.

e.
Interpreter. H person competent in tinglish and Arabic (or other language understood by the Detainee) who assists a Tribunal andlor Detainee by translating instmctions, questions, testimony, and documents.

f.
A Person Whose Status is in Doubt. A detainee who has committed a belligerent act, but whose entitlement to status as an EPW under GPW Article 4 is in doubt.

g.
President of the Tribunal. The senior Voting member of each Tribunal. The President shall be a commissioned office serving in the grade of 04 or above.

h.
Recorder. A commissioned officer detailed to obtain and present evidence to a Tribunal convened under this regulation and to make a record of the proceedings thereof.

i.
Retained Persons. Members of the medical service and chaplains accompanying the enemy armed forces who come into the custody the US forces who are retained in the custody to administer to the needs of the personnel of their own forces.

j.
Screening Officer. Any US military or civilian employee of the Department of Defense who conducts an initial screening or interrogation of persons coming into the power of the United States Forces.

k.
Tribunal. A panel of three commissioned officers, at least one of who must be a judge advocate, convened to make determinations of fact, pursuant to GPW Article 5 and this regulation.

6. BACKGROUND.
a.
The United States is a state-party to the four Geneva Conventions of 12 August 1949. One of these conventions is the Geneva Convention Relative to the Treatment of Prisoners of War. The text of this convention may be found in DA Pamphlet 27-1.

b.
By its terms, the GPW would apply to an armed conflict between the United States and any country.

~l~uptc’t-
j

PUTTG t-lnrlDettrinces
c.
The GPW provides that any person who has committed a belligerent act and thereafter comes into the power of the enemy will be treated as an EPW unless a competent Tribunal determines that the person does not fall within a class of persons described in GPW Article 4.

d.
Some detainees are obviously entitled to EPW status, and their cases should not be referred to a Tribunal. These include personnel of enemy armed forces taken into custody on the battlefield.

e.
Medical personnel and chaplains accompanying enemy armed forces are not combatants; therefore, they are not EPWs upon capture. However, they may be retained in custody to administer to EPWs.

f.
When a competent Tribunal determines that a detained person has committed a belligerent act as defined in this regulation, but that the person does not fall into one of the classes of persons described in GPW Article 4, that person will be delivered to the Provost Marshal for disposition as follows:

(1)
If captured in enemy territory. In accordance with the rights and obligations of an occupying power under the Law of Armed Conflict (See reference at paragraph 7c).

(2)
If captured in territory of another friendly state. For delivery to the civil authorities unless otherwise directed by competent US authority.

7. RESPONSIBILITIES.
a. All US military and civilian personnel of the Department of Defense (DoD) who take or have custody of a detainee will:
(1)
Treat each detainee humanely and with respect.

(2)
Apply the protections of the GPW to each EPW and to each detainee whose status has not yet been determined by a Tribunal convened under this regulation.

b.
Any US military or civilian employee of the Department of Defense who fails to treat any detainee humanely, respectfully or otherwise in accordance with the GPW, may be subject to punishment under the 1JCMJ or as otherwise directed by comnetent authoritv.

c.
Commanders will:

(1)
Ensure that personnel of their commands know and comply with the responsibilities set forth above.

(2)
Ensure that all detainees in the custody of their forces are promptly evacuated, processed, -and accounted for.

(3)
Ensure that all sick or wounded detainees are provided prompt medical care. Only urgent medical reasons will determine the priority in the order of medical treatment to be administered.

(4)
Ensure that detainee’s determined not to be entitled to EPW status are segregated from EPWs prior to any transfer to other authorities.

d.
The Screening Officer will:

(1)
Determine whether or not each detainee has committed a belligerent act as defined in this regulation.

(2)
Refer the cases of detainees who have committed a belligerent act and who may not fall within one of the classes of persons entitled to EPW status under GPW Article 4 to a Tribunal convened under this regulation.

(3)
Refer the cases of detainees who have not committed a belligerent act, but who may have committed an ordinary crime, to the Provost Marshal.

(4)
Seek the advlce or the unit’s servicing judge advocate when needed.

(5)
Ensure that all detainees are delivered to the appropriate US authority, e.g., Provost Marshal, for evaluation, transfer or release as appropriate.

e.
The USCENTCOM SJA will:

(I)
Provide legal guidance, as required to subordinate units concerning the conduct of Article 5 Tribunals.

(2)
Provide judge advocates to serve on Article 5 Tribunals as required.

(3)
Determine the legal sufficiency of each hearing in which a detainee who committed a belligerent act was not granted EPW status. Where a Tribunal’s decision is determined not to be legally sufficient, a new hearing will be ordered.

(4)
Retain the records of all Article 5 Tribunals conducted. Promulgate a Tribunal Appointment Order IAW Annex B of this regulation.

f.
Tribunals will:

(1)
Following substantially the procedures set forth at Annex C of this regulation, determine whether each detainee referred to that Tribunal:

(a)
Did or did not commit a belligerent act as defined in this regulations and, if so, whether the detainee

(b)
Falls or does not fall within one of the classes of persons entitled to EPW status under Article 4 of the GPW.

(2)
Promptly report their decisions to the convening authority in writing.

g.
The servicing judge advocate for each unit capturing or otherwise coming into the possession of new detainees will provide legal guidance to Screening Officers and others concerning the determination of EPW status as required.

8. PROPONENT. The proponent of this regulation is the office of the Staff Judge Advocate, CCJA. Users are invited to send comments and suggested improvements on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to United States Central Command, CCJA, 7115 South Boundary Boulevard, MacDill Air Force Base, Florida 33621-5101.
FOR THE COMMANDER IN CHIEF:
R. I. NEAL LtGen, USMC Deputy Commander in Chief and
Chief of Staff OFFICIAL: ROBERT L. HENDERSON LTC, USA Adjutant General
DISTRIBUTION: A (1 Ea)
ANNEX A

EXCERPT FROM THE
GENEVA CONVENTION RELATIVE TO THE TREATMENT
OF PRISONERS OF WAR, 12 AUGUST 1949

Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1)
Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2)
Members of other militias and members of other volunteer corps, including those of organized resistance movementq hrlonging to a Party to the conflict and operating in or outside their ow2 territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fi~lfill the following conditions:

(a)
that of being commanded by a person responsible for his subordinates:

(b)
that of having a fixed distinctive sign recognizable at a distance;

(c)
that of carrying arms openly;

(d)
that of conducting their operations in accordance with the laws and customs of war.

(3)
Members of regular armed forces who profess allegiance to a govenunent or an authority not recognized by the Detaining Power.

(4)
Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5)
Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law.

(6)
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units provided they carry arms openly and respect the laws and customs of war.

B.
The following shall likewise be treated as prisoners of war under the present Convention:

(1)
Persons belonging, or having belonged, to the armed forces of the Occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which

121
C/rcpter 5 POKYund Delainees
they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
(2)
The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favorable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph 58-67,92, 126 and; where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C.
This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 5
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
ANNEX B
UNITED STATES CENTRAL-COMMAND
71 15 South Boundary Boulevard
MacDill Air Force Base, Florida 33621-5 101

APPOINTMENT OF TRIBUNAL

A Tribunal under Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War is hereby convened. It will hear such cases as shall be brought before it pursuant to USCENTCOM Regulation 27-13 without further action of referral or otherwise.
The following commissioned officers shall serve as members of the Tribunal. MEMBERS: Major A. B. Doe, USA, 999-99-9999; President Captain R. C. Shaw, JAGC, USA, 999-99-9999; Judge Advocate, Member IS’ Lt C. Logan, USA, 999-99-9999; Member
FOR THE COMMANDER IN CHIEF:
STAFF JUDGE ADVOCATE
ANNEX C
TRIBUNAL PROCEDURES

1.
JURISDICTION. Tribunals convened pursuant to this regulation shall be limited in their deliberations to the determination of whether detained persons ordered to appear before it are entitled to EPW status under the GPW.

2.
APPLICABLE LAW. In making its determination of entitlement to EPW status the Tribunal should apply the following:

a.
Hague Convention No. IV Respecting the Laws and Customs of War on Land and Annex Thereto Embodying Regulations Respecting the Laws and Customs of Warfare on Land, 18 October 1907; 36 Stat. 2277; TS 539; 1 Bevans 63 1.

b.
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 12 August 1949; 6 UST 31 14; TIAS 3362; 75 UNTS 31.

c.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces, 12 August 1949; 6 UST 3217; TIAS 3363; 75 UNTS 85.

d.
Geneva Convention Relative to the Treatment of Prisoners of War, 12 August1949; 6 UST 3316; TIAS 3364; 75 UNTS 135.

e.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949; 6 UST 3516; TIAS 3365; 75 UNTS 287.

3. COMPOSITION.
a.
Interpreter. Each Tribunal will have an interpreter appointed by the President of the Tribunal who shall be competent in English and Arabic (or other language understood by the Detainee). The interpreter shall have no vote.

b.
Recorder. Each Tribunal shall have a commissioned officer appointed by the President of the Tribuna! 😮 obtain acd prcscnt al! relcvant evidence ?cthe Tribcnn! ad to cause 2 r~ccr?.tc’ he mad? of the proceedings. The recorder shall have no vote,

c.
Tribunal. A panel ofthree commissioned officers, at Ieast one of whom must be a judge advocate, convened to make determinations of fact pursuant to GPW Article 5 and this regulation. The senior member of each Tribunal shall be an officer serving in the grade of 0-4 or above and shall be its President.

4. POWERS OF THE TRIBUNAL. The Tribunal shall have the power to:
a.
Determine the mental and physical capacity of the detainee to participate in the hearing.

b.
Order U.S. military witnesses to appear and to request the appearance of civilian witnesses.

c.
Require the production of documents and real evidence in the custody of the United States and to request host nation assistance in the production of documents and evidence not in the custody of the United States.

d.
Require each witness to testify under oath. A form of oath for Muslim witnesses is attached (Annex E). The oath will be administered by the judge advocate member of the Tribunal.

5. RIGHTS OF THE DETAINEE.
a.
The detainee shall have the right to be present at all open sessions of the Tribunal.

b.
The detainee may not be compelled to testify.

c.
The detainee shall not have the right to legal counsel, however, the detainee may have a personal representative assist him at the hearing if that personal representative is immediatelv available.

d.
The detainee shall be informed, in Arabic (or other language understood by the Detainee) of the purpose of the Tribunal, the provisions of GPW Articles 4 and 5, and of the procedure to be followed by the Tribunal.

e.
The detainee shall have the right to present evidence to the Tribunal, including the testimony of witnesses who are immediately available.

f.
The detainee may examine and cross-examine witnesses, and examine evidence. Documentary evidence may be masked, as necessary, to protect sensitive sources and methods of obtaining information.

g.
The detainee shall be advised of the foregoing rights at the beginning of the hearing.

6. APPLICABLE PROCCEDURE.
a.
Admissibility of Evidence. All evidence, including hearsay evidence, is admissible. The Tribunal will determine the weight to be given to evidence considered.

b.
Control of Case. The hearing is not adversarial, but rather is a fact-finding procedure. The President of the Tribunal, and other members of the Tribunal with the President’s consent, will interrogate the detainee, witnesses, etc. Additionally, the President of the Tribunal may direct the Recorder to obtain evidence in addition to that presented.

c.
Burden of Proof

(1)
Under this regulation, a matter shallbe proven as fact if the fact-finder is persuaded of the truth of the matter by a preponderance of the evidence.

(2)
Unless it is established by a preponderance of the evidence that the detainee is not entitled to EPW status, the detainee will be granted EPW status.

d.
Voting. The decisions of the Tribunal shall be determined by a majority of the voting members of the Tribunal.

e.
Legal Review. The USARCENT Staff Judge Advocate shall determine the legal sufficiency of each hearing in which a detainee who committed a belligerent act was not granted EPW status. In such cases, the detainees shall be entitled to continued EPW treatment pending completion of the legal review. Where a Tribunal’s decision is determined not to be legally sufficient, a new hearing will be ordered.

7. CONDUCT OF HEARING. The Tribunal’s hearing shall be substantially as follows:
a.
The President upon calling the Tribunal to order should first announce the order appointing the Tribunal (See Annex F).

b.
The Recorder will cause a record to be made of the time, date, and place of the hearing, and the identity and qualifications of all participants.

c.
The President should advise the detainee of his rights, the purpose of the hearing and of the consequences of the Tribunal’s decision.

d.
The Recorder will read the report of the Screening Officer or other interrogating officer summarizing the facts upon which the interrogating officer’s referral was based and will present all other relevant evidence available.

e.
The Recorder will call the witnesses, if any. Witnesses will be excluded from the hearing except while testifying. An oath or affirmation will be administered to each witness by the judge advocate member of the Tribunal.

f.
The Detainee shall be permitted to present evidence. The Recorder will assist the Detainee in obtaining the production of documents and the presence of witnesses immediately available.

g.
The Tribunal will deliberate in closed session. Only voting members will be present. The

Tribunal will make its determination of status by a majority vote. The junior voting member will summarize the Tribunal’s decision on the Report of Tribunal Decision (Annex D). The decisions will bc ~igilcdb> cach ~otiilg illcillbci.
h. The President will announce the decision of the Tribunal in open session,
8. POST HEARING PROCEDURES.
a.
The Recorder will prepare the record of the hearing.

b.
In cases in which the detainee has been determined not to be entitled to EPW status, the following items will be attached to the decision:

(1)
A statement of the time and place of the hearing, persons present, and their qualifications.

(2)
A brief resume of the facts and circumstances upon which the decision was based.

126
Chapter 5
POWs czr7d Dctuinees
(3)
A summary or copies of all evidence presented to the Tribunal.

c.
In cases in which the detainee has been determined to be entitled to EPW status no record of the proceedings is required.

d.
The original and one copy of the Tribunal’s decision and all supporting documents will be forwarded by the President to the convening authority within one week of the date of the announcement of the decision.

ANNEX D
REPORT OF TRIBUNAL DECISION
TRIBUNAL CONVENED BY: (ORDER NUMBER I HEADQUARTERS I DATE)
CASE NO: DATE:
LOCATION: (UNIT, GEOGRAPHIC LOCATION)
In ~e:~ ,Respondent
This Tribunal, having been directed to make a determination as to the legal status of the above-named respondent under Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War, who came into the power of mT) of the Armed Forces of (NATION) at (GEOGRAPHIC LOCATION) on or about (DATE ) and having examined all available evidence, has determined that he (is) (is not) an Enemy Prisoner of War as defined in Article 4 of the Convention.
Additional identifying information concerning the detainee is follows.
~ank:~ Service umber:^
Date of Birth:? unit:”
Place of Birth: Father’s name:
Mother’s name: Spouse’s name:
Home Town: Aliases, if any:
IT IS ORDERED that the Respondent: (Here include the Tribunal’s direction as to the disposition of ik icspoildcnt, c.g., “Eclivcrcd tc thc Provost hfnrshzl fcr Trmsfer tc m I;P\N ram?” or “Delivered to Civil Authorities” or “Released from Custody.”)
(Rank, Name), President,* (Rank, Name, Member,* (Unit, Social Security No.) (Unit, Social Security No.)
(Rank, Name), Member,* (Unit, Social Security No.)
The decision of the foregoing Tribunal in which the detainee was determined not to be entitled to EPW status has been determined to be legally sufficient/insufficient.
FOR THE USARCENT STAFF JUDGE ADVOCATE
Rank, Name, Title
An FPW is required by the GPW to provide this information.
An EPW may not be compelled to provide this information.

* Judge Advocate Member will so indicate
ANNEX E
FORM OF OATH FOR A MUSLIM
In the Name of Allah, the Most Compassionate, the Most Merciful, who gave us Muhammad His Prophet and the Holy Koran, I, (NAME), swear that my testimony before this Tribunal will be the truth.
ANNEX F
ARTICLE FIVE TRIBUNAL HEARlNG GUIDE
RECORDER:  All Rise (The Tribunal enters)
PRESIDENT:  (NAME OF DETAINEE), this Tribunal is convened by order of under the provisions of Article Five of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949. It will determine whether you have committed a belligerent act against the United States Armed Forces or Other Friendly Forces acting pursuant to United Nations Security Council Resolution 678 and, if so, whether you fall within one of the classes of persons entitled to treatment as a prisoner of war.
INTERPRETER:  !TRANST,ATTON OF AROVE)
PRESIDENT:  (NAME OF DETAINEE), you have the following rights during this hearing:
You have the right to be present at all open sessions of the Tribunal. However, if you become disorderly, you will be removed from the hearing, and the Tribunal will continue to hear evidence.
You may not be compelled to testify. However, you may testify if you wish to do SO.
You may have a personal representative assist you at the hearing if that personal representative is immediately available.
You have the right to present evidence to this Tribunal, including the testimony of witnesses who are immediately available.
You may ask questions of witnesses and examine documents offered in evidence. However, certain documents may be partially masked for security reasons.
INTERPRETER:  (TRANSLATION OF ABOVE)
PRESIDENT:  Do you understand these rights?
INTERPRETER:  (TRANSLATION OF ABOVE)
PRESIDENT:  Do you have any questions concerning these rights?
INTERPRETER:  (TRANSLATION OF ABOVE)
RECORDER:  All rise.
PRESIDENT:  (DETAINEE), this Tribunal has determined:
(That you have not committed a belligerent act; therefore, you will be released.)

(That you have committed a belligerent act, but you are entitled to Prisoner of War status. You will be delivered to the Provost Marshal for evacuation to a Prisoner of War Camp.)
(That you have committed a belligerent act, but that you are NOT entitled to Prisoner of War status. This decision will be reviewed by higher authority. Until then, you will remain in American custody. If this decision is confirmed upon review by higher authority, you will be transferred to the appropriate authorities for further legal proceedings.)
INTERPRETER:  (TRANSLATION OF ABOVE)
PRESIDENT:  This hearing is adjourned.

Chupter 5 POWAaidDetuiners
NOTES

NOTES

NOTES

NOTES

Chapter 5
POWs mdDeloi~?crs

PROTECTION OF CIVILIANS DURING ARMED
CONFLICT

REFERENCES
Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277,205 Consol. T.S. 277, including the regulations thereto [hereinafter
Hague IV].
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug
12, 19-19,55.S.T.?216,75C.N.T.S. 135 [llc~einafitxBCj.
The 1977 Protocols Additional to the Geneva Conventions of 1949, Dec 12, 1977, 16

I.L.M. 1391 [hereinafter GP I &111.
The 1954 Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, May 14, 1954,249 U.N.T.S. 21 6 [hereinafter 1954 Cultural Property
Conv.].
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956)
[hereinafter DA PAM 27-11.
Dept. of Army, Pamphlet 27-1-1, Protocols To The Geneva Conventions of 12 August
1949 (1 September 1979) [hereinafter DA PAM 27-1 -11.
Dept. of Army, Pamphlet 27-161-2, International Law, Volume I1 (23 October 1962)
[hereinafter DA PAM 27- 161-21.
Dept. of Army, Field Manual 27-10, The Law of Land Warfare (18 July 1956) [hereinafter
FM 27-10].
Dept. of Army, Field Manual 41-10, Civil Affairs Operations (1 1Jan~iary 1993)
[hereinafter FM 41 -101.

10.
bept. of Army, ~ield ~anual100-21, Contractors of the Battlefield (January 2003) [hereinafter FM 100-2 11.

11.
Dept. of Army, Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1 October 1997) [hereinafter AR 190-81.

12.
Jean S. Pictet, COMMENTARY CONVENTION TO THE PROTECTION

TO GENEVA IV RELATIVE
OF CIVILIAN IN TIME OFWAR (1958) [hereinafter Pictet].

PERSONS
13. Yves Sandoz, COMMENTARY
ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE
GENEVA OF 12 AUGUST

CONVENTIONS 1949 (1987) [hereinafter Protocols Commentary].
14. Dietrich Schindler & Jiri Toman, THE LAWS OF ARMED A COLLECTION
CONFLICTS, OF
CONVENTIONS, AND OTHER (2d ed. 1988).

RESOLUTIONS DOCUMENTS
15.
Gerhard von Glahn, LAW AMONG NATIONS(1 992).

16.
L. Oppenheim, INTERNATIONAL

LAW (7th ed., H. Lauterpacht, 1955) bereinafter
Oppenheim].

17.
UNIVERSAL OF HUMAN

DECLARATION RIGHTS, G.A. res. 2 17 A(III), December 10,1948,
U.N. Doc. AJ810, at 71 (1948).
Clir1ptptc.r6 Civilians
18. INTERNATIONALCOVENANT AND POLITICAL G.A. res 2200A (XXI),
ON CIVIL RIGHTS, December 16, 1966,21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A163 16 (1966), 999
U.N.T.S. 171, entered into force March 23, 1976.
19.
Frank Newman and David Weissbrodt, International Human Rights (1990).

20.
Frank Newman and David Weissbrodt, Selected International Human Rights Instruments (1990).

21.
FrankNewman and David Weissbrodt, 1994 Supplement to International Human Rights and Selected International Human Rights Instruments (1994).

22.
Memorandum: Law of War Status of Civilians Accompanying Militay Forces in the Field (6 May 1999), W. Hays Parks, Special Assistant on Law of War Matters (On file with author)

23.
Department of Defense Law of War Program, DoDD 5100.77 (9 December 1998) [hereinafter DoDD 5 100.771.

I. OBJECTIVES
A. Become familiar with the historic influences on the development of protections for civilians during periods of armed conflict.
B. Understand the legal definition of “civilian,” and the test for determining when that status is lost.
C. Identify the law intended primarily for the benefit of:
1.
All civilians, during ANY type of conflict;

2.
“Special need” civilians during ONLY international armed conflict;

3.
Civilians under the control of an enemy (protected persons);

4.
Civilians not under enemy control, but subject to enemy lethality.

11. INTRODUCTION.
A. Historical Background. The concept of protecting civilians during conflict is ancient. Historically, three considerations motivated implementation of such protections.
1.
Desire of sovereigns to protect their citizens. Based on reciprocal self- interests, ancient powers entered into agreements or followed codes of chivalry in the hope similar rules would protect their own land and people if they fell under their enemy’s control.

2.
Facilitation of strategic success. Military and political leaders recognized that enemy civilians who believed that they would be well treated were more likely to surrender and or cooperate with occupying forces. Therefore, sparing the vanquished from atrocities facilitated ultimate victory.

3.
Desire to minimize the devastation and suffering caused by war. Throughout history, religious leaders, scholars, and military professionals advocated limitations on the devastation caused by conflict. This rationale emerged as a major trend in the development of the law of war in the mid nineteenth century and continues to be a major focus of advocates of ‘(humanitarian law.”

Q. 3bc Approaches Tn The Protection of Civilians. Two methodologies for the protection of civilian noncombatants developed under customary international law.
1.
The Targeting Method. Noncombatants who are not in the hands of an enemy force (the force employing the weapon systems restricted by the targeting method) benefit from restricting the types of lethality that may lawfully be directed at combatants. This method is governed primarily by the rules of military necessity, prevention of superfluous sufferingldevastation, and proportionality (especially as these rules have been codified within the Hague Regulations and Geneva Protocol I).

2.
The Protect and Respect Method. Establish certain imperative protections for noncombatants that are in your hands (physically under the control or authority of a party to the conflict).

3.
Consolidated Development. Protocol I and I1 to the 1949 Geneva Conventions represent the convergence of both the Hague and Geneva traditions for protecting victims of warfare. These Protocols include both targeting and protect and respect based protections.

C. The Recent Historical “Cause and Effect” Process.
Post Thirty Years War -Pre World War 11: Civilians were generally not targets
during warfare. War waged in areas removed from civilian populations. There
was no perceived need to devote legal protections to civilians exclusively.
Civilians derive sufficient “gratuitous benefit” from law making destruction of
enemy armed forces the sole legal object of conflict.
Chcpter 6 Civilians
a.     One exception: occupation. The desire of sovereigns to minimize disruption to the economic interests within occupied territories mandated a body of law directly on point. This is why an “occupation prong” to the law of war emerges as early as 1907.
2.     Post World War 11: Recognition that war is now “total.” Nations treat enemy populations as legitimate targets because they support the war effort.
a.     Commenting on the degeneration of conflict which culminated with World War 11, one scholar noted:
“After 1914, however, a new retrogressive movement set in which
reached its present climax in the terrible conduct of the second World
War, threatening a new ‘advance to barbarism.’ We have arrived where
we started, in the sixteenth century, at the threat of total, lawless war,
but this time with weapons which may ruin all human civilization, and
even threaten the survival of mankind on this planet.”‘
3.     The international response to the suffering caused by World War I1 is the development of the four Geneva Conventions of 1949, each of which is devoted to protecting a certain category of non-combatants. Although the 1949 Geneva Convention Relative to the Treatment of Civilians Persons in Time of War (GC) is the first “stand alone” document exclusively dedicated to the protection of civilians, there are obvious gaps in protections for civilians which suggests the victors were not inclined to condemn their own conduct in World War 11:
a.
The characterization of Allied targeting of civilian population centers as legitimate reprisal actions;

b.
Providing virtually no protection for civilians who have not falien under enemy control.

4. The “Gap Filler.” In 1977, two treaties were promulgated to supplement the four Geneva Conventions of 1949. Protocols I & I1 to the Geneva Conventions of 1949 were intended to fill the gaps left by the Conventions. Protocol I for international armed conflict and Protocol I1 for internal armed conflict. The need for a more comprehensive civilian protection regime was highlighted in the official commentary to the Protocols:
‘ Josef L. Kunz, THELAWSOF WAR,50 Am. J.Inf ‘I. L. 3 13 (1950).
140
Chapter 6 (‘iviliut~.\
The 1949 Diplomatic Conference did not have the task of revising the Hague Regulations . . . This is why the 1949 Geneva Conventions only deal with the protections to which the population is entitled against the effects of war in a brief and limited way . . The fact that the Hague Regulations were not brought up to date meant that a serious gap remained in codified humanitarian law. This has had harmful effects in many armed conflicts which have occurred since 1949 .
a.
Protocol 1represents an intersection of both the Hagueltargeting method, and the Genevalrespect and protect method.

b.
Developing rules based on a combination of both these methods was deemed essential to ensure comprehensive protection for non-combatants subject to the dangers of warfare.

c.
The primary focus of this treaty was to fill the void related to protecting persons and property f?om enemy lethality.

111. DEFINITION OF CIVILIAN.
A. The long road to a definition. Although the concept of distinction between combatants and civilians lies at the very foundation of the customary law, the Fourth Geneva Convention of 1949 contains no definition of who falls within the category of civilian. Many provisions refer to protections afforded to certain categories of civilians, but it seems the definition of civilians is left to common sense.
1.     By 1977, it was apparent that this approach was inadequate, and that the lack of definition jeopardized the principle of distinction. According to Protocol 1’s official commentary:
“As we have seen, the principle of the protection of the civilian population is inseparable from the principle of the distinction which should be made between military and civilian persons. In view of the latter principle, it is essential to have a clear definition of each of these ~ategories.’~~
2.     The Protocol Method. Article 50(1) of Protocol I adopts a “negative” method of defining civilians. It defines civilians as all persons who do not
Protocols Commentary at 587.
‘Mat 610.
qualify for Prisoner of War status pursuant to Article 4 of the Geneva Prisoner of War Convention and Article 43 of Protocol I (except that civilians who accompany the force, and thereby qualify for PW status, fall within the definition of civilians for “protective” purposes). Bottom Line: Anyone not qualifying as a combatant, in the sense that they are entitled to –
?W status upon capture, should be regarded as a civilian.
3.     Civilian -A “fungible” status. The immunity afforded civilians is not absolute. According to the official commentary: “The immunity afforded individual civilians is subject to an overriding condition, namely, on their abstaining from all hostile acts. Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces. Thus a civilian who takes part in armed combat, either individually or as part of a group, thereby becomes a legitimate target. ..””
a.     According to Protocol I, Article 51(3), civilians shall enjoy the protection of this section (providing general protection against dangers arising from military operations) unless and for such time as they take a “direct” part in hostilities.
(1)The official commentary then explains “direct part” means “acts of war which by their nature or purpose are likely to cause actual ham to the personnel and equipment of the enemy armed force^.”^
(2)The official commentary then excludes “general participation in the war effort” from this definition:
“There should be a clear distinction between direct participation in hostilities and participation in the war effort . in modern conflicts. many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role in this ~ontext.”~
Chapter 6
C’ivi1icul.y
b.     United States Position: The Department of Defense Law of War Working Group has chosen “active part” as the more accurate term to express that point at which a civilian is at risk from intentional attack.’
(1)”Active” participation is characterized as, “Entering the theatre of operations in support or operation of sensitive, high value equipment, such as a weapon system.””
(2)Field Manual 100-2 1, Contractors on the Battlefield (January 2003), states that contractors cannot “take an active role in hostilities but retain there inherent right of self defense.” FM 100-21, Para. 6-2.
4. GPI and US Bottom Line: Loss of civilian status for those intending to cause actual harm to the personnel and/or equipment of the enemy. No loss of status for civilian workers in industry who provide general support for the war effort. Gray Area Per US View -Civilian augmentation of military function.
IV.     THE LAW WHICH OPERATES TO THE BENEFIT OF CIVILIANS DURING ANY TYPE OF ARMED CONFLICT, NO MATTER WHERE THEY ARE IN THE CONFLICT AREA.
A. Common Article 3 Standard of Basic Humanitarian Protections. Originally intended to serve as the preface to the Geneva Conventions (it was to provide the purpose and direction statement for the four conventions), it was instead adopted as the law to regulate the controversial “non-international conflicts” (civil wars).
1. Common Article 3: Known as Common Article 3 because it appears in all four of the 1949 Geneva Conventions, Article 3 is also referred to as a “miniature convention” because its language contains both its trigger for application as well as its protections. Common Article 3 mandates the following minimum protections during internal armed conflict:
a.
No adverse distinction based upon race, religion, sex, etc.;

b.
No violence to life or person;

c.
No taking hostages;

d.
No degrading treatment;

e.
No passing of sentences in absence of fair trial, and;

f.
The wounded and sick must be cared for

‘Hays Parks memo at 1.
Id.
2.
Application to Any Armed Conflict. In 1986, the International Court of Justice ruled that Common Article 3 serves as a “minimum yardstick of protection” in all conflicts, not just internal armed conflicts.

3.
Re-affirmation of ICJ: In 1995, the International Criminal Tribunal for the Former Yugoslavia endorsed the extension of common article 3 to international armed conflict in the Appeals Chamber decision in the Tadic case:

“The International Court of Justice has confirmed that these rules
[common article 31 reflect ‘elementary considerations of humanity’
applicable under customary international law to any armed conflict,
whether it is of an internal or international ~haracter.”~
4. This expanded view of Common Article 3 is consistent not only with U.S. policy (which extends its application even into non-conflict operations other than war through DoDD 5100.77), but also with the original understanding of its scope as expressed in the official commentary to the Geneva Conventions of 1949. According to Jean Pictet:
“This minimum requirement in the case of a non-international armed conflict, is a fortiori applicable in international conflicts. It proclaims the guiding principle common to all four Geneva Conventions, and from it each of them derives the essential provision around which it is built.”‘”
B. The Protocol I “safety net:” Prior to the expansion of the protections of Common Article 3 to international armed conflict by the decisions of the ICJ and ICTY, Common Article 3 could not be considered to apply, as a matter of law, to international armed conflict. Thus, there was an absence of an explicit
Prosecutor v. Dusko Tadic AIWA “Dule”, International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, Case No. IT-94-1-AR72, (2 October 1995) (quoting ~icara~ua
v. United States at para 218).
loPictet at 14.
guarantee of humane treatment for all civilians during international armed
conflict.

1.
The Response: Article 75 of Protocol I. The drafters of Protocol 1included an article almost identical to Common Article 3 of the 1949 Conventions, the purpose of which was to establish an explicit mandate for humane treatment of any and all civilians during international armed conflict, regardless of which party to the conflict had power over them.

2.
Article 75 is in a sense a “safety net,” ensuring that no civilian falls through the “cracks” in terms of their right to humane treatment during an international armed conflict. Note: For those states not a party to Protocol I, the ICJ and ICTY decisions replace the Article 75 safety net with the broader application of Common Article 3.

3.
Expanded due process guarantees. While Common Article 3 speaks in very general terms about the right to due process, Article 75 is much more explicit and extensive in it’s enunciation of due process rights for individuals deprived of liberty during an international armed conflict.

C. Protocol 11,Article 4: Reaffirming and expanding the principles set forth in Common Article 3, Article 4 prohibits the following actions in internal armed conflict:
1.
Violence to life, health and physical or mental well-being;

2.
Murder, cruel treatment, torture, mutilation and corporal punishment;

3.
Collective punishment, taking hostages, actor of terrorism;

4.
Humiliatingldegrading treatment, rape, enforced prostitution and indecent assault;

5.
Slavery/slave trade, pillage, and threats to commit any of the foregoing.

D. Bottom Line: All non-combatants, including civilians in areas involved in either internal or international armed conflict, are entitled to humane treatment when subject to the power of any party to that conflict. Although this is a very low standard of protection, its comprehensive application is a dramatic change in the law of war from its original application after the 1949 Geneva Conventions.
CIt~pter6 Civilians
V.     THE LAW WHICH OPERATES TO THE BENEFIT OF CIVILIANS DURING INTERNATIONAL ARMED CONFLICT, NO MATTER WHERE THEY ARE IN THE CONFLICT AREA
A. Protection of the Entire Population: Although the Fourth Geneva Convention was the first law of war treaty devoted exclusively to the protection of civilians,
only Part I1 of the treaty applies to every civilian in the area of conflict.
1.     Article 15 of GC: Provides for, but does not mandate, the establishment of “neutralized zones” (temporary zones in the area of combat) to shelter from the effects of war:
a.
Wounded and sick combatants and non-combatants;

b.
Civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.

2.     Article 14 of GC: Provides for, but does not mandate, the establishment of “hospital/safety zones” (Permanent structures establish outside combat area) to shelter from the effects of war “Special Needs” civilians:
a.
Mothers of children under seven;

b.
Wounded, sick, and infirm;

c.
Aged;

d.
Children under the age of 15; and

e.
Expectant mothers.

G.
llurther Protections oi the Zntire Popuiarion: in adciilion LOprovidiilg I’ul he establishment of these “protected” zones, Part I1 also mandates the following protections:

1.
The wounded, sick, infirm and expectant mothers must be “respected and protected” by all parties to the conflict at all times. GC, Art 16.

2.
Agreements should be reached to allow for removal of special needs individuals from besieged areas and the passage of ministers and medical personnel to such areas. GC, Art. 17.

3.
Civilian Hospitals shall not be the object of attack. GC, Art. 18.

4.
Allow passage of consignments of medical supplies, foodstuffs and clothing. GC, Art. 23.

5.
Protection and maintenance of orphans or those separated from their family who are under the age of 15. GC, Art. 24.

6.
Rights to communicate with family via correspondence. GC, Art. 25.

Chapter 6 (‘ii3iliuns
VI.
STATUS AND TREATMENT OF PROTECTED PERSONS

A.
Part I11 Protections: The bulk of the protections (Articles 27 -141) of the Fourth Geneva Convention are found in Part I11 and deal exclusively with “protected persons.”

B.
Key Definitions & Principles: Understanding who is classified as a protected person under the Convention is simplified by understanding the theory behind the classification. Remember, the state is the focal point of the international legal system. One of the prerogatives of a state is the ability to champion the rights of its citizens through diplomatic channels. The GC presumes that upon outbreak of armed conflict between two states, these diplomatic channels will be severed. Therefore, the civilians of each party to the conflict who find themselves under the control of their nation’s enemy lose the ability to seek redress for wrongs through diplomatic channels. “Protected person” status thus steps in to fill this vacuum, and is the mechanism designed to ensure these civilians do not lose the benefit of international legal protections. Therefore, to determine the status of a civilian, the following definitions must be understood and applied:

1.     Protected Persons. GC, Art. 4, Para. 1. “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever find themselves, in case of conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.” Based on this definition, there are two main classes of protected persons:
a.     Civilian enemy nationals within the national territory of each of the parties to the conflict:
(1)Example: US oil workers in Iraq and Iraqi students in the US during the Gulf War. Note: Nationals of a neutral or co-belligerent State are not protected persons if their country has normal diplomatic relations with the State in whose territory they are.
Chapter 6 Civi1ian.r
b.     The population of occupied territories, excluding nationals of the occupying power or a co-belligerent.
(1)Example: In the case of Operation Iraqi Freedom, once Iraq was occupied, all civilians in Iraq who were not nationals of the States that comprised the coalition became protected persons.
2. Occupation: Territory is occupied “when it is actually placed under the authority of the hostile army.” Hague IV, Art. 42; FM 27- 10, Para. 35 1.
a.     Occupation = Invasion plus taking firm possession of the enemy territory for the purpose of holding it. FM 27-10, Para. 352a.
(1)Invasion: Invasion continues for as long as resistance is met. If no resistance is met, the state of invasion continues only until the invader takes firm control of the area, with an intention of holding it. Invasion is not necessarily occupation, but invasion usually precedes occupation. FM 27-10? Para. 352a. Invasion may be either resisted or unresisted.
(a) Resisted v. Unresisted Invasion. Occupation “presupposes” a hostile invasion -However, a “hostile” invasion may be either resisted or unresisted.
3. Commencement of Occupation.
a.     Proclamation of occupation not necessary but advisable. FM 27-10, para.
357. General Eisenhower issued a powerful proclamation in World War
11.
5.     Without SL:C~2 p-cclamation, xc:lpation is a de factc: stazdar?.. FM27-10, Paras. 355 & 356. It is based on the following elements: (1)Invader has rendered the invaded government incapable of exercising its authority;
(2)Invader has substituted its own authority;
(3)Must be Actual & Effective:

(a) Organized resistance has been overcome, but the existence of resistance groups does not render the occupation ineffective;
(b)Invader has taken measures to establish authority; 148
(c) The existence of a fort or defended place does not render the occupation of the remaining territory ineffective.
4.
Termination of Occupation. FM 27-10, Paras. 353,360, & 361. Occupation terminates when the occupying power either loses control of the territory (displacement) or asserts sovereignty over the territory (subjugation).

5.
Application of Geneva Conventions:

a.
(GC, Art. 6) “In the temtory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations.”

b.
(GPI, Art. 3) “The application of the Conventions and of this Protocol shall cease, in the temtory of Parties to the conflict, at the general close of military operations and, and in the case of occupied territories, on the termination of the occupation.”

C.
Specific Articles Addressing Protected Persons: Before review the protections available to protected persons, it is important to note that, protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the Fourth Geneva Convention. GC, Art 8.

1.     Part 111, Section I -The General Standard: “Protected persons are entitled in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated.” GC, Art. 27.
a.
“Respect For Their Persons.” Intended to grant a wide array of rights to protect physical, moral, and intellectual integrities.”

b.
“Respect for Honor.” Acts such as slander, insults, and humiliation are prohibited.”

c.
“Respect for Family Rights.” Arbitrary acts which interfere with marital ties, the family dwelling, and family ties are prohibited. This is reinforced by GC, Art. 82, that requires, in the case of internment, that families be housed together.””

“In addition, fa fam~lyIS divided, as a result of wartme events, they must be reunited. See Plctet at 202-203 149
, // I I ‘9
/.<I ;
d.
“Respect for Religious Convictions.” Arbitrary acts which interfere with the observances, services, and rites are prohibited (only acts necessary for maintenance of public orderlsafety are permitted).”

e.
“Respect for Custom.” Intended to protect the class of behavior which defines a particular culture. This provision was introduced in response to the attempts by World War I1 Powers to effect “cultural genocide.”

f.
No insults and exposure to public curiosity.

g.
No rape, enforced prostitution, and indecent assault on women.12

h.
No using physical presence of persons to make a place immune from attack. GC, Art. 28.

i.
No physical or moral coercion, particularly to obtain information. GC, Arts. 31 & 33

j.
No actions causing physical suffering, intimidation, or extermination; including murder, torture, corporal punishment, mutilation, brutality, and medical/scientific experimentation. GC, Art. 32.

k.
No pillaging (under any circumstances and at any location). GC, Art. 33.

1.     No collective penalties. GC, Art. 33.
m.
No reprisals against the person or his property. GC, Art. 33.

n.
No taking of hostages. GC, Art. 34.

2.     Part 111, Section 11: Protections specifically for aliens within the territory of a party to the conflict. Articles 35 through 46 are designed to protect the freedom of the alien “in so far as that freedom is not incompatible with the security of the party in whose country he is.” This translates into affording these civilians many of the same rights and privileges as host nation civilians.
”These protections were intended as specific examples of the heightened protection that women enjoy under Geneva IV. The general protections within the Convention cover much more than the specific protections against rape, prostitution, and indecent assault. See Commission of Government Experts for the Study of the Convention for the Protection of War Victims (Geneva, Apr. 14-26); Preliminary Documents, Vol. 111 47 (1947).
Chapter 6 Civiliuns
a.     Right to Leave the Territory. GC, Art. 35. (Right is overcome by the national interests of the State (Security).
(1)Right of review by appropriate court or administrative board.
b.
Right to Humane Treatment During Confinement. Protected persons are entitled to the quality of treatment recognized by the civilized world, even if it exceeds the quality of treatment that a Detaining Power grants to its own citizens. GC, Art. 37.

c.
Right to receive relief packages, medical attention, and practice of their religion. GC, Art.38.

d.
Right to find gainful employment, subject to security concerns.     If no employment is possible, the Party shall ensure support. GC, Art. 39.

e.
Limitations on the Type and Nature of Labor. GC, Art.40.

(1)Can only be compelled to work to the same extent as nationals.
(2)Cannot be forced to contribute to the war effort of their enemy.
3.     Part 111, Section 111: Protections specifically for protected persons in occupied territories.
a.
Inviolability of Rights. The occupying power does not have the authority to deprive protected persons of any rights derived from GC as a result of occupation. GC, Art. 47.

b.
Right to leave if not a national of the power whose territory is occupied. GC, Art. 48.

c.
No forcible transfers or deportations. GC, Art. 49.

d.
Ensure care and education of children. GC, Art. 50.

e.
May not be compelled to serve in armed forces. May not be forced to work unless 18 and for the benefit of public good. GC, Art. 5 1.

f.
Must protect and respect personal property. GC, Art 53. Exceptions:

(1)The occupying power cannot destroy “real or personal property.. ., except where such destruction is rendered absolutely necessary. GC, Art. 53.
Clmpter 6 Civilians
(2)
Seizure. The temporary taking of property, with or without the
authorization of the local commander.

(a)
Rules for State Property. FM 27-10, paras. 402-405.

(i)
Real Property Not of a Direct Military Use may not be seized

(but occupant may administer such property) and must be safeguarded (public buildings, real estate, forests).

(ii)
Occupying power may seize all (state owned) cash, funds, and movable property, which is capable of military use.

(b)Rules for Private Property.
(i)
Permitted if the property has a direct military use.

(ii)
A receipt must be given, so that restoration and compensation can be made.

(3)Confiscation. Permanent taking. Differs from seizure, which is temporary. FM 27-10, Paras. 396 & 406. Hague IV, Art. 46, Para. 2.
(a) State Owned Property. State property seized or captured becomes the property of the capturing nation (title passes).
(b)Private Property. Cannot be confiscated. In addition, threats, intimidation, or pressure cannot be used to circumvent this rule.
(4)Requisitions. The use of services and property, by the order of the local commander, for the needs of the hostile or occupation army. FM 27-10, Paras. 412-417.
(i)
May only be ordered by local commander.

(ii)
Must, to the greatest extent possible, be paid for in cash. If cash is not available a receipt must be given, with payment made as soon as possible.

(iii)
Use of Force. Minimum amount required to secure needed services or items.

g.
Ensure food and medical supplies. GC, Art. 55.

h.
Permit ministers of religion to give spiritual assistance. GC, Art 58.

Chapter 6 Civilians
i.
Permit receipt of individual relief supplies. GC, Art 62.

j.
Presumption of Continued Use of Indigenous Laws. The local law (civil & penal) of the occupied territory “shall remain in force,” except in cases

where such laws “constitute a threat” to the occupying power’s security. GC, Art. 64. Sources of such law included:
(1)
Customary International Law Duty of Obedience. Inhabitants owe a duty of obedience to the occupant. However, this obligation does not require that a member of the local population act in a manner aimed to injure his displaced government.

k.
Must provide due process rights. GC, Art. 71.

4.     Depriving protected persons of their liberty: Generally, four types of liberty deprivation are permissible with regard to protected persons:
a.     Imprisonment for criminal misconduct:
(1)Occupation Courts. GC, Arts. 64 -67 The occupying power may constitute military courts (nonpolitical) to try accused citizens of an occupied territory. Limitations:
(a)
The courts must sit in the occupied territory.

(b)Prosecution must be based upon laws that have been “published (in writing) and brought to the attention of the inhabitants.”

(c)
The laws must be published in the native language.

(d)Protecting Power shall have the right to attend the trial (must be notified of trial date).
b.
Detainment: Any person captured or otherwise detained by an armed force.

c.
Assigned residence: Equivalent of internment.

d.     Internment:’ GC, Part 111, Section IV: Most severe form of non-penal related restraint permitted -even if the detaining Power finds that
–
‘I Army Regulation 190-8: Enemy Prisoner of War, Retained Personnel, Civilian Internees and other Detainees (1 October 1997), establishes policies and planning guidance for the treatment, care, accountability, legal status, and administrative procedures for civilian internees.
153
Clqvter 6 Civiliunr
neither internment nor assigned residence serves as an adequate measure of control, it may not use any measure of control that is more severe. GC, Art. 4 1. Key Components:
(1)     Subject to periodic review (6 months) by competent body. GC, Art
78.
(2)
Grouped as Families Whenever Possible. GC, Art. 82.

(3)
Separate from PWs and Criminals. Internees “shall be accommodated separately from prisoners of war and persons deprived of liberty for any other reason.” GC, Art. 84.

(4)
Proper housing. GC, Art. 85.

(5)
Sufficient food, water and clothes. GC, Art. 89.

(6)
Adequate infirmary with qualified doctor. GC, Art. 9 1.

(7)
Complete religious freedom. GC, Art. 93.

(8)
Right to control property and money. GC, Art. 97.

(9)
Must post convention in native language, right to petition for redress of grievances and elect internee committee. GC, Arts. 99 -102.

(10)
Right to notify family of location and send and receive letters. GC, Arts. 105 -107.

(1
1) Laws in place continue to apply (subject to operational imperatives), internees cannot be sent to penitentiaries for disciplinary violations. GC, Art. 1 17.

(12)
Transfers must be done safely and notice must be given to internee’s family. GC, Art. 128.

(1
3) Must issue death certificates. Must conduct inquiry if death of internee is caused by sentry or other internee. GC, Arts. 129 -13 1.

(14)
Internment shall cease as soon as possible after the close of hostilities. GC, Art. 133.

D.
Loss of Protected Status. A person suspected of “activities hostile to the security of the State,” does not enjoy any right that might prejudice the security of the State. GC, Art. 5.

Chapter 6 Civilians
1.     Spieslsaboteurs given as a specific example. Such persons forfeit their rights of communication. GC, Art. 5, Para. 2.
a.
Article 29 of Hague IV provides the current definition of a spy: “A person can be considered a spy when, acting clandestinely or on false pretenses, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intent of communicating it to the hostile party.”

b.
Thus, civilians seeking information in the territory of a belligerent under the circumstances described above may lose their status (in an occupied territory the civilian loses his status only if “absolute military security so requires”).

VII.
GRAVE BREACHES OF THE LAW OF WAR

A.
Grave Breaches (GC, Art. 147): Grave breaches, if committed against persons or property protected by the Fourth Geneva Convention, are:

1.
Willful killing;

2.
Torture or inhumane treatment, to include biological experiments;

3.
Willfully causing great suffering or serious injury to body and health;

4.
Unlawful deportation or transfer or unlawful confinement of a protected person;

5.
Compelling a protected person to serve in the forces of a hostile power;

6.
Willfully depriving a protected person of the rights of fair and regular trial;

7.
Taking of hostages;

8.
Extensive destruction and appropriation of property, not justified by military necessitj~.

B. Prosecution (GC, Art. 146): Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of
Chapter 6 Civilians
their nationality, before it own courts. High Contracting Parties may also hand such persons over for trial to another High Contracting Party.
VIII.     THE LAW FOR THE BENEFIT OF CIVILIANS NOT UNDER OUR CONTROL, BUT SUBJECT TO OUR LETHALITY.
A. Until 1977, the law that operated to the benefit of civilians under the control of their own nation, but subject to our lethality, was extremely limited. It consisted of only:
1.
The general Targeting Principles codified by the Hague Convention. (For discussion of these principles, see Chapter 7 entitled “Methods and Means of Warfare”).

2.
The benefits provided for “special needs” individuals under Part I1 of the GC.

B. Recognizing that this resulted in a “gap” of coverage for civilian non- combatants not under the control of their nation’s enemy, but subject to that enemy’s lethality (long range weapons), ~rotocol I established a series of rules related to the targeting process specifically intended to protect these civilians.
1. The Protocol I Concept. Protocol I, Part IV, entitled “General protection against the effects of hostilities,” is composed of a series of rules intended to ensure implementation of the principle of “distinction” between lawhl and unlawful targets. According to the Official Commentary, “the principle of protection and distinction forms the basis of the entire regulation of war . .
.”14
These rules, therefore, were intended to provide protection for the entire civilian population in an area of conflict, particularly those not under enemy control but subject to enemy lethality.
2.     The Basic Rule -Art. 48: “In order to ensure respect and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives.””
a.     While this “basic rule” may sound like simple common sense, the fact that it did not exist in any treaty prior to 1977 is a manifestation of the extent
l4 Protocols Commentary at 586.
l5 Id. at 597.
Chapter 6 Civiliam
of the “gap” in the protection afforded to civilians by the codified law of war which Protocol I sought to fill.
b. This rule explicitly requires combatants to distinguish military from
civilian targets, even when employing long-range weaponry.

3.     Specific Prohibitions of Art. 51. Art. 5 1 establishes a list of express prohibitions intended to implement the “basic rule” of Art.48:
a.
Civilians may never be the object of attack.

b.
Attacks intended to terrorize the civilian population are prohibited.

c.
Indiscriminate attacks are prohibited. Indiscriminate is defined as:

(1)Attacks not directed as a specific military objective, or employing a method or means of combat that cannot be so directed;
(2)Attacks which employ a method or means of combat the effects of which cannot be controlled;
(3)Attacks treating dispersed military objectives, located in a
concentration of civilians, as one objective;

(4)Attacks which may be expected to cause collateral damage excessive in relation to the concrete and direct military advantage to be gained (“Rule of Proportionality. For further analysis of this rule, see Chapter 7, Means and Methods.
d.
No civilian may be the object of a reprisal (GP I, Art.5l(6)). (U.S. objected to this rule on the grounds that it would eviscerate the concept of reprisal under the law of war).

e.
Civilians may not be used as “human shields” in an attempt to immunize an otherwise lawful military objective. However, violation of this rule by a party to the conflict does not relieve the opponent of the obligation to do everything feasible to implement the concept of distinction.

4.     Other Protocol I provisions intended to “Fill the Gap.” Protocol I contains many other provisions intended to protect civilians from the harmful effects of war when they are not under the control of their nations enemy. Some examples include:
Clzaytou 6 Civilians
a. Art. 54 -Rules intended to protect objects indispensable to the survival of
the civilian population, such as:
(1)Prohibiting use of starvation as a method of warfare;
(2)Prohibiting attacks on foodstuffs, water facilities, etc., unless these objects are used solely to support the enemy military.
b.
Art. 56 -Protection of works and installations containing dangerous forces (the U.S. objected to this provision).

c.
Art. 57 -Obligation to take feasible precautions in order to minimize harm to non-military objectives.

d.
Art. 58 -Obligation to take feasible measures to remove civilians from areas containing military objectives.

C.
Bottom Line. Protocol I represents a major effort to establish comprehensive rules intended to ensure civilians are protected, as much as possible, from the dangers of warfare, even if they are under the control of their own nation. These rules have tremendous significance in relation to the targeting process for long-range warfare.

IX.
CONCLUSION.

A.
The Fourth Geneva Convention and the Protocols contain a series of detailed rules. There is no substitute for digging into them to learn the legal requirements related to treatment of civilians.

B.
While the Convention and Protocols may not be technically applicable to future MOOTW, the rules serve as a critical foundation for creating solutions to civilian protections issues through application of DoDD 5 100.77, The Law of War Program. Judge Advocates must recognize this, attempt to anticipate the type of issues their unit will encounter, and develop a working knowledge of these rules as far in advance of such operations as possible.

Chapter 6 Civilicztx
NOTES

Chclper 6
Civiliuns

NOTES

Chapter 6
Civiliuns

NOTES

NOTES

Chapter 6
Civiliatw

CHAPTER
7
MEANS AND METHODS OF WARFARE
REFERENCES
1.
Hague Convention No. IV, 18 October 1907, Respecting the Laws and Customs of War on Land, T.S. 539, including the regulations thereto [hereinafter H. IV].

2.
Hague Convention No. IX, 18 October 1907, Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 23 14 bereinafter H. 1×1.

3.
Geneva Convention, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949,6 U.S.T. 31 14, T.I.A.S. 3362,75 U.N.T.S. 3 1 [hereinafter GWS].

4.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members, August 12, 1949,6 U.S.T. 3217, T.I.A.S. 3363,75 U.S.T.S. 85 [hereinafter GWS Sea].

5.
Geneva Convention, Relative to the Treatment of Prisoners of War, August 12, 1949, 6

U.S.T. 3316, T.I.A.S. 3364,75 U.N.T.S. 135 [hereinafter GPW.
6.
Geneva Convention, Relative to the Treatment of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365,75 U.N.T.S. 287 [hereinafter GC].

7.
The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M. 1391, DA Pam 27-1-1 [hereinafter GP I & 111.

8.
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925,26 U.S.T. 571, 94

L.N.T.S. 65 [hereinafter 1925 Geneva Protocol].
9.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, January 13, 1993,32 I.L.M. 800 [hereinafter 1993 CWC].

10.
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954,249 U.N.T.S. 216 [hereinafter 1954 Cultural Property Convention].

11.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972,26 U.S.T. 583 [hereinafter 1972 Biological Weapons Convention].

12.
Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, October 10, 1980, 19 I.L.M. 1523 [hereinafter 1980 Conventional Weapons Treaty].

13.
Dep’t of the Army, Field Manual 27- 10, The Law of Land Warfare (July 1956) [hereinafter FM 27- 101.

14.
Dep’t of the Navy, Naval Warfare Publication 1-14M/U.S. Marine Corps MCPW 5-2.1, The Commander’s Handbook on the Law of Naval Operations (October 1995) [hereinafter NWP 1-14Ml; Annotated Supplement to NWP 1-l4M.

163
Chapter 7 hlcan, and ~Viethods
15. Dep’t of Defense Interim Guidance for Defense Acquisition (30 Oct 2002).
I. BACKGROUND
A. “Means and methods” is the term commonly used to refer to the area of law governing the conduct of hostilities -the Jus in Bello. The “justness” of the conflict or how the parties ended up at armed conflict is not addressed. Rather, this area of law deals with how the parties conduct the armed conflict once engaged.
B. Portions of this area of law overlap and intermingle with other key law of war documents, particularly the 1949 Geneva Conventions. Therefore it is important when working in this area to also read and cross-reference the related Geneva Conventions to ensure a complete picture of the relevant law.
C. This area of law addresses two interrelated areas: (1) the methods of warfare; that is, tactics or how we go about fighting; and (2) the means of warfare, that is, what instruments of war we use to fight. This outline discusses both areas.
11. PRINCIPLES
A. The four key principles of the law of war:
1.
Military necessitylmilitary objective

2.
Distinction/discrimination

3.
Proportionality

. 4. Humanity/unnecessary suffering
B. Principle of Military Necessity. That principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. FM 27-10, para. 3. Defined originally in the Lieber Code: “those measures which are indispensable for securing the ends of war, and which are lawful according to the modern laws and usages of war.” Lieber Code, art. 14.
1. These definitions have two common elements:
a.
A military requirement to undertake the action; and

b.
The action must not be forbidden by the law of war.

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2. Are there any exceptions to these elements? In other words, can the military requirement to undertake the action be so great that it can “overcome” a prohibition in international law?
a.     Criminal Defense. Military necessity has been argued as a defense to law of war violations and has generally been rejected as a defense for acts forbidden by customary and conventional laws of war. Rationale: laws of war were crafted to include consideration of military necessity. A distinction has been drawn, however, between acts/violations that affect people versus those that affect property.
(1)Protected Persons. Law prohibits the intentional targeting of protected persons (as defined in the Geneva Conventions) under any circumstances. WWII Germans, under a concept called “Kreigsraison,” argued that sometimes dire military circumstances allowed them to violate international law –i.e., kill prisoners at Malmedy because they had no provisions for them and their retention would have jeopardized the German attack. This reasoning was rejected at Nuremberg: “The rules of international law must be followed even if it results in the loss of a battle or even a war.”
(2)Protected Places -The Rendulic Rule. The law of war does allow for destruction of civilian property, if military necessity “imperatively demands” such action (Hague, art. 23(g); FM 27-10, para. 56 and 58.)) The circumstances requiring destruction of protected property are those of “urgent military necessity” as they appear to the commander at the time of the decision. See IX Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals, 11 13 (1950). Charges that General Lothar Rendulic unlawfully destroyed civilian property via a “scorched earth” policy were dismissed by the Tribunal because “the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made.”
-Id.
3.     Military objective. Military objective is a component of military necessity. Once a commander determines he or she has a military necessity to take a certain action or strike a certain target, then he or she must determine that the target is a valid military objective. The current definition of a military objective is found in GP I, article 52(2): “those objects which by their
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nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” The components of this definition are discussed further in the section on targeting.
C. Principle of Discrimination or Distinction. The principle of distinction is sometimes referred to as the “grandfather of all principles,” as it forms the foundation for niuch of the Geneva tradition of the law of war. The essence of the principle is that military attacks should be directed at combatants and military targets, and not civilians or civilian property. GP I, article 48 sets out the rule: “Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
1. GP I further defines “indiscriminate attacks” under Article 5 l(4) as those attacks that:
a.
are “not directed against a specific military objective” (e.g., SCUD missiles during Desert Storm);

b.
“employ a method or means of combat the effects of which cannot be directed at a specified military objective” (e.g., area bombing);

c.
“employ a method or means of combat the effects of which cannot be limited as required” (use of bacteriological weapons); and

d.
“consequently, in each case are of a nature to strike military objectives and civilians or civilian objects without distinction.” See, A.P.V. Rodgers, Law on the Battlefield, 19-24 (1996).

D.
Principle of Proportionality. The test to determine if an attack is proportional is found in GP I, article 5 1(5)(b): “An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” violates the principle of proportionality.

Note: this principle is only applicable when an attack has the possibility of
affecting civilians. If the target is purely military with no known civilian
personnel or property in the vicinity, no proportionality analysis need be
conducted.
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1.
Incidental loss of life or injury and collateral damage. This is considered unavoidable damage to civilian personnel and property incurred while attacking a military objective. Such an occurrence, however, is not a violation of international law. The law recognizes that there may be some death, injury and destruction during military operations. The law of war requirement is for the commander to weigh that expected death, injury, and destruction against the military advantage anticipated. The question is whether such death, injury, and destruction are excessive in relation to the military advantage; not whether any death, injury or destruction will occur. In other words, the prohibition is on the death, injury, and destruction being excessive; not on the attack causing such results.

2.
Judging Commanders. It is be a grave breach of GP I to launch an attack that a commander knows will cause excessive incidental damage in relation to the military advantage gained. The requirement is for a commander to act

reasonably.
a.     Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places, but also that these objectives can be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated. FM 27-1 0, para.
41. In judging a commander’s actions one must look at the situation as the commander saw it in light of all circumstances. See A.P.V. Rogers, Law on the Battlefield 66 (1996) and discussion of the “Rendulic Rule” above. The question of reasonableness, however, ensures an objective standard that must be met as well. In this regard, two questions seem relevant. Did the commander gather a reasonable amount of information to determine whether the target was a military objective and that the incidental damage would not be disproportionate? Second, did the commander act reasonably based on the gathered information? Of course, factors such as time, available staff, and combat conditions affecting the commander must also factor into the analysis.
b. Example: A1 Firdus Bunker. During Desert Storm, planners identified this bunker as a military objective. Barbed wire surrounded the complex, it was camouflaged, and armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the shelter as nighttime sleeping quarters. The complex was bombed, resulting in 300 civilian casualties. Was there a violation of the law of war? No. Based on information gathered by coalition planners, the commander made a reasonable assessment that the target was a military
objective and that incidental damage would not outweigh the military
advantage gained. Although the attack unfortunately resulted in
numerous civilian deaths, (and that in hindsight, the attack might have
been disproportionate to the military advantage gained –had the attackers
known of the civilians) there was no international law violation because
the attackers, at the time of the attack, acted reasonably. See
DEPARTMENT CONDUCT GULF WAR, FINAL
OF DEFENSE, OF THE PERSIAN REPORTTO CONGRESS61 5-616 (1992).
E. Principle of Unnecessary Suffering or Humanity. Hague, article 22 states that the right of belligerents to adopt means of injuring the enemy is not unlimited. Furthermore, “it is especially forbidden . . .to employ arms, projectiles or material calculated to cause unnecessary suffering.” HR, art. 23e. This concept is targeted at weaponry, and has two basic elements.
1.
A prohibition on use of arms that are per se calculated to cause unnecessary suffering (e.g., projectiles filled with glass, irregular shaped bullets, dum- dum rounds, lances with barbed heads).

2.
A prohibition on use of otherwise lawful arms in a manner that causes unnecessary suffering (e.g., using a flamethrower against enemy combatants with the intent to “fry those SOBS and make them suffer,” even though equally effective and more humane means are available).

3.
The key to both prohibitions is the mens rea or intent element.

111. TARGETS
A. As discussed above, only valid military objectives are legitimate targets. The current definition of a military objective is found in GP I, article 52(2): “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
1. “Nature, location, purpose, or use”
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a.
Nature is defined in the Commentary as “all objects used directly by the armed forces,” such as weapons, tanks, transports, etc.

b.
Location is defined in the Commentary as “a site which is of special importance for military operations in view of its location,” such as a bridge or a piece of ground.

c.
Purpose is defined in the Commentary as “concerned with the intended future use of an object.”

d.
Use, on the other hand, is defined in the Commentary as “concerned with [the object’s] present function,” such as a school being used as a military headquarters.

2.
“Make an effective contribution to military action” In theory, even if the object is clearly military in nature, such as a tank, if it does not meet this test (e.g., it is sitting out in the desert abandoned). It cannot be a valid military objective. In reality, such a target would be extremely low on the target list anyway as it would not be considered an effective use of limited resources.

3.
“Offers a definite military advantage.” The Commentary states that it is not legitimate to launch an attack which only offers potential or indeterminate advantages. This raises interesting questions regarding attacking enemy morale, deception operations, and strategic views of advantage versus tactical advantages of individual attacks.

B. People
1. Determining who can be a valid target is either a status based or conduct based determination.
a.     Status based. The easiest situation is when you are facing an enemy that has been declared a “hostile force.” If an individual falls into the group of those declared a hostile force, then he may immediately be targeted without any specific conduct on his part.
(1)Combatants are generally defined as anyone engaging in hostilities in an armed conflict on behalf of a party to the conflict. Combatants are lawful targets unless “out of combat.”
(2)Combatants are often referred to as “lawful” combatants if they fall under the definition given in the Geneva Convention on Prisoners of War for those entitled to PW status:
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(a) Under responsible command,
(b)Distinctive sign recognizable at a distance,
(c) Carry arms openly, and
(d)Abide by the laws of war. For a fuller-discussion of these criteria, see the chapter on Geneva Convention 111, Prisoners of War.
(3)Oftentimes you will also hear the phrase “unlawhl combatants.” There is no such term in the law of war; however it was used by the Supreme Court in the Quirin case to refer to those who engaged in combat but had no right to do so. The more accurate term is “unprivileged belligerent.” These individuals do not meet the criteria listed above, and not only may be targeted, but will not receive the protections of prisoners of war. They may be treated as criminals under the domestic law of the captor. An unprivileged belligerent can be a civilian who is participating in the hostilities or a member of the armed forces who violates the laws of war.
b. Conduct based. As noted above, an unprivileged belligerent, by his or her conduct, can become a lawful target. Thus, although they are not a part of a group declared a hostile force, by their hostile acts they become a legitimate target.
2. Noncombatants. The law of war prohibits attacks on non-combatants, to include those sometimes referred to as those hors de combat, or out of combat.
a. Civilians
(1) General Rule. Civilians and civilian property may not be the subject or sole objecf of a military attack. Civilians are persons who are not members of the enemy’s armed forces, and who do not take part in the hostilities. GP I, art. 50 and 5 1.
(2)Furthermore, GP I provides for expanded protections of the civilian population from “indiscriminate” attacks. Indiscriminate attacks include those where the incidental loss of civilian life, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated. GP I, art. 5 1 -except for para. 6, considered customary international law by US.
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(3)
GP I, article 5 l(3) states that civilians enjoy protection from targeting “unless and for such time as they take a direct part in hostilities.” The Commentary states the requirement that civilians abstain from “all hostile acts,” is defined as “acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.” This concept is discussed further in the chapter on Geneva Convention IV, Protection of Civilians in Armed Conflict, which includes a discussion of “direct part” versus “active part.”

b.
Hors de Combat. Prohibition against attacking enemy personnel who are “out of combat.” Protected persons:

(1)Prisoners of War. GPW, art. 4, HR, art. 23c,d.
(a) Surrender may be made by any means that communicates the intent to give up. No clear rule as to what constitutes surrender. However, most agree surrender constitutes a cessation of resistance and placement of one’s self at the discretion of the captor.
(b)Captors must respect (not attack) and protect (care for) those who surrender–no reprisals.
(2)Wounded and Sick in the Field and at Sea. GWS, art. 12; GWS Sea, art. 12. Those soldiers who have fallen by reason of sickness or wounds and who cease to fight are to be respected and protected. Civilians are included in definition of wounded and sick (who because of trauma, disease . . . are in need of medical assistance and care and who refrain from any act of hostility). GP I, art. 8. Shipwrecked members of the armed forces at sea are to be respected and protected. GWS Sea, art. 12, NWP 1-14M, para. 11.6. Shipwrecked includes downed passengers/crews on aircraft, ships in peril, castaways.
(3)Parachutists. FM 27- 10 para. 30. Paratroopers are presumed to be on a military mission and therefore may be targeted. Parachutists who are crewmen of a disabled aircraft are presumed to be out of combat and may not be targeted unless it’s apparent they are engaged on a hostile mission. Parachutists, according to GP I, Article 42, “shall be given the opportunity to surrender before being made the object of attack” and are clearly treated differently from paratroopers.
c.     Medical Personnel. Considered out of combat if they are exclusively engaged in medical duties. GWS, art. 24. They may not be directly attacked; however, accidental killing or wounding of such personnel due to their proximity to military objectives “gives no just cause for complaint” FM 27-10, para 225. Medical personnel include:
(1)
Medical personnel of the armed forces. GWS, art. 24.

(a)
Doctors, surgeons, nurses, chemists, stretcher-bearers, medics, corpsman, and orderlies, etc., who are “exclusively engaged” in the direct care of the wounded and sick.

(b)Administrative staffs of medical units (drivers, generator operators, cooks, etc.).

(c)
Chaplains.

(2)Auxiliary Medical Personnel of the Armed Forces. GWS, art. 25. To gain the GWS protection, they must have received “special training” and be carrying out their medical duties when they come in contact with the enemy.
(3)Relief Societies. Personnel of National Red Cross Societies and other recognized relief Societies. GWS, art. 26. Personnel of relief societies of Neutral Countries. GWS, art. 27.
(4)
Civilian Medical and Religious Personnel. Article 15 of GP I requires that civilian medical and religious personnel shall be respected and protected. They receive the benefits of the provisions of the Geneva Conventions and the Protocols concerning the protection and identification of medical personnel. Article 15 also dictates that any help possible shall be given to civilian medical personnel when civilian medical services are disrupted due to combat.

d.
Personnel Engaged in the Protection of Cultural Property. Article 17 of the 1954 Hague Cultural Property Convention established a duty to respect (not directly attack) persons engaged in the protection of cultural property. The regulations attached to the Convention provide for specific positions as cultural protectors and for their identification.

e.
Journalists. Given protection as “civilians” provided they take no action adversely affecting their status as civilians. GP I, art. 79 -considered customary international law by US.

C.
Places

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1. Defended Places.     FM 27- 10, paras. 39 & 40, change 1. As a general rule, any place the enemy chooses to defend makes it subject to attack. Defended places include:
a.
a fort or fortified place;

b.
a place occupied by a combatant force or through which a force is
passing; and

c.
a city or town that is surrounded by defensive positions under circumstances that the city or town is indivisible from the defensive positions. See also, GP I, Article 5 1(5)(a), which seems to clarify this rule. Specifically, it prohibits bombardments which treat “as a single military objective a number of clearly separated and distinct military objectives located in a city, town, or village.”

2. Undefended places. The attack or bombardment of towns, villages, dwellings, or buildings which are undefended is prohibited. HR, art. 25. An inhabited place may be declared an undefended place (and open for occupation) if the following criteria are met:
a.
all combatants and mobile military equipment are removed;

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

c.
no acts of hostility shall be committed by the authorities or by the
population; and

d.
no activities in support of military operations shall be undertaken (presence of enemy medical units, enemy sick and wounded, and enemy police forces are allowed). FM 27-10, art. 39b, change 1.

3.
Natural environment. The environment cannot be the object of reprisals. In the course of normal military operations, care must be taken to protect the natural environment against long-term, widespread, and severe damage. GP I, art. 55 -U.S. specifically objects to this article.

4.
Protected Areas. Hospital or safety zones may be established for the protection of the wounded and sick or civilians. FM 27-10, para. 45. Articles 8 and 11 of the 1954 Hague Cultural Property Convention provide that certain cultural sites may be designated in an “International Register of Cultural Property under Special Protections.” The Vatican and art storage areas in Europe have been designated under the convention as “specially

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protected.” The U.S. asserts the special protection regime does not reflect customary international law.
D. Property
1. Protected Property
a.
Civilian. Prohibition against attacking civilians or civilian property. FM 27-10, para. 246; GP I, art. 5 l(2). Presumption of civilian property attaches to objects traditionally associated with civilian use (dwellings, school, etc.). GP I, art. 52(3).

b.
Protection of Medical Units and ~stablishments -Hospitals. FM 27- 10, paras. 257 and 258; GWS art. 19.

(1)Fixed or mobile medical units shall be respected and protected. They shall not be intentionally attacked.
(2)Protection shall not cease, unless they are used to commit “acts harmful to the enemy.”
(a) Warning requirement before attacking a hospital that is committing “acts harmful to the enemy.”
(b)Reasonable time to comply with warning, before attack.
(3)
When receiving fire from a hospital, there is no duty to warn before returning fire in self-defense. Example: Richmond Hills Hospital, Grenada; hospitals during combat in Operation Iraqi Freedom.

c.
Medical Transport. Ground transports of the wounded and sick or of medical equipment shall not be attacked if performing a medical function. GWS, art. 35. Under the Geneva Conventions of 1949, medical aircraft were protected from direct attack only if they flew in accordance with a previous agreement between the parties as to their route, time, and altitude. GP I extends further protection to medical aircraft flying over areas controlled by friendly forces. Under this regime, identified medical aircraft are to be respected, regardless of whether a prior agreement between the parties exists. GP I, art. 25. In “contact zones”, protection can only be effective by prior agreement; nevertheless medical aircraft “shall be respected after they have been recognized as such.” (GP I, art. 26 -considered customary international law by US.) Medical aircraft in areas controlled by an adverse party must have a prior agreement in order

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to gain protection. GP I, art. 27. See more developed discussion in the outline on the Geneva Convention on the Wounded and Sick.
d. Cultural Property. Prohibition against attacking cultural property. The 1954 Cultural Property Convention elaborates, but does not expand, the protections accorded cultural property found in other treaties. HR, art. 27; FM 27-10, para. 45,57. The Convention has not been ratified by the US (treaty is currently under review with a view toward ratification with minor understandings). See GP I, art. 53, for similar prohibitions. Cultural property includes buildings dedicated to religion, art, science, charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected.
(1)Misuse will subject them to attack.
(2)Enemy has duty to indicate presence of such buildings with visible and distinctive signs.
2. Works and Installations Containing Dangerous Forces. GP I, art. 56, and GP 11, art. 15. The rules are not U.S. law but should be considered because of the pervasive international acceptance of GP I and 11. Under the Protocols, dams, dikes, and nuclear electrical generating stations shall not be attacked -even if they are military objectives -if the attack will cause the release of dangerous forces and cause “severe losses7′ among the civilian population.
(U.S.
objects to “severe loss” language as creating a different standard than customary proportionality test -“excessive7′ incidental injury or damage.)

a.
Military objectives that are near these potentially dangerous forces are also immune from attack if the attack may cause release of the forces (parties also have a duty to avoid locating military objectives near such locations).

b.
May attack works and installations containing dangerous forces only if they provide “significant and direct support7′ to military operations and attack is the only feasible way to terminate the support. The U.S. objects to this provision as creating a standard that differs from the customary definition of a military objective as an object that makes “an effective contribution to military action.”

c.
Parties may construct defensive weapons systems to protect works and installations containing dangerous forces. These weapons systems may

not be attacked unless they are used for purposes other than protecting the installation.
3. Objects Indispensable to the Survival of the Civilian Population. Article 54 of GP I prohibits starvation as a method ofwarfare. 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.
E. Protective Emblems. FM 27- 10, para. 23 8. Objects and personnel displaying emblems are presumed to be protected under Conventions. GWS, art 38.
1. Medical and Religious Emblems
a.
Red Cross.

b.
Red Crescent.

c.
Lion and Sun.

d.
Red Star of David: Not mentioned in the 1949 Geneva Convention, but is protected as a matter of practice.

2.     Cultural Property Emblems
a.
“A shield, consisting of a royal blue square, one of the angles of which forms the point of the shield and of a royal blue triangle above the square, the space on either side being taken up by a white triangle.” 1954 Cultural Property Convention, art. 16 and 17.

b.
Hague Convention No. IX Concerning Bombardment by Naval Forces in Time of War (art. 5). “[Llarge, stiff, rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white.”

3. Works and Installations Containing Dangerous Forces. Three bright orange circles, of similar size, placed on the same axis, the distance between each circle being one radius. GP I, annex I, art. 16.
IV. WEAPONS
A. The regulation of use of weapons in conflict is governed by essentially two major precepts. The first is the law of war principle prohibiting unnecessary
Chapter 7 Means mu’ hkthods
suffering. The second is treaty law dealing with specific weapons or weapons systems.
B. Legal Review. Before discussing these areas, it is important to note first that all
U.S. weapons and weapons systems must be reviewed by the service TJAG for legality under the law of war. Interim Guidance, Defense Acquisition, DEPSECDEF Memo, 30 Oct 2002, AR 27-53, AFI 5 1-402, and SECNAVINST 571 1.8A. A review occurs before the award of the engineering and manufacturing development contract and again before the award of the initial production contract. Legal review of new weapons is also required under Article 36 of GP I.
1. The Test.     Is the acquisition and procurement of the weapon consistent with all applicable treaties, customary international law, and the law of armed conflict? Interim Guidance, Defense Acquisition, para. 3.2.1. In TJAG reviews, the discussion will often focus on whether the employment of the weapon or munition for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to its military effectiveness. This test cannot be conducted in isolation, but must be weighed in light of comparable, lawful weapons in use on the modem battlefield. Weapons may be illegal:
a.
Per se. Those weapons calculated to cause unnecessary suffering, determined by the “usage of states.” Examples: lances with barbed heads, irregular shaped bullets, projectiles filled with glass. FM 27- 10, para. 34.

b.
By improper use. Using an otherwise legal weapon in a manner to cause unnecessary suffering. Example: using a flamethrower against enemy troops in a bunker after dousing the bunker with gasoline; the intent being to inflict severe pain and injury on the enemy troops.

c.
By agreement or prohibited by specific treaties. Example: certain land mines, booby traps, and non-detectable fragments are prohibited under the Protocols to the 1980 Conventional Weapons Treaty.

C.
As noted above, Hague, article 22 states that the right of belligerents to adopt means of injuring the enemy is not unlimited. ,Furthermore, “it is especially forbidden . . .to employ arms, projectiles or material calculated to cause unnecessary suffering.” HR, art. 23e. The following weapons and munitions are considered under this general principle.

1. Small Arms Projectiles. Must not be exploding or expanding projectiles. The Declaration of St. Petersburg of 1868 prohibits exploding rounds of less than 400 grams (14 ounces). The 1899 Hague Convention prohibits expanding rounds. US practice accedes to these prohibitions as being customary international law. State practice is to use jacketed small arms ammunition (which reduces bullet expansion on impact).
a.
Hollow point ammunition. Typically, this is semi-jacketed ammunition that is designed to expand dramatically upon impact. This ammunition is prohibited for use in armed conflict against combatants by customary international and the treaties mentioned above. There are limited situations, however, where use of this ammunition is lawful because its use will significantly reduce collateral damage to noncombatants and protected property (hostage rescue, aircraft security).

b.
High Velocity Small Caliber Arms.

(1)Early controversy about M- 16 causing unnecessary suffering.
(2)
“Matchking” ammunition. Has a hollow tip–but is not expansive on impact. Tip is designed to enhance accuracy only and does not cause unnecessary suffering.

c.
Sniper rifles, SOcaliber machine guns, and shotguns. Much “mythology” exists about the lawfulness of these weapon systems. Bottom line: they are lawful weapons, although rules of engagement (policy and tactics) may limit their use.

d.
Superfluous Injury and Unnecessary Suffering Project: (SirUS): An attempt by the ICRC to bring objectivity to the review of legality of various weapons systems. The SirUS project attempted to use casualty survival rates off the battlefield, as well as the seriousness of the inflicted injury, as the criteria for determining if a weapon causes unnecessary suffering. The U.S. position is that the project was inherently flawed because its database of casualty figures is mostly based upon wounds inflicted in domestic disturbances, civil wars, fkom antipersonnel mines and from bullets of undetermined type. See Maj Donna Verchio, Just Say No! The SirUS Project: Well-Intentioned, but Unnecessary and Super-uous, 5 1 A.F.L. Rev. 183 (2001).

2. Fragmentation. FM 27-10, para 34.
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a.
Legal unless used in an illegal manner (on a protected target or in a manner calculated to cause unnecessary suffering).

b.
Unlawful if fragments are undetectable by X-ray (Protocol I, 1980 Conventional Weapons Treaty).

c.
Distinguish R2LP rounds (reduced ricochet, limited penetration). These rounds do fragment, but only upon striking a hard surface, such as a ship’s hull, and not in the body.

D.
The following weapons and munitions are regulated not only by the principle prohibiting unnecessary suffering, but also by specific treaty law. Most of the applicable law is relatively new, dating from post-Geneva Protocol implementation.

1. Landmines. Lawful if properly used, however, regulated by a number of different treaties. Keep in mind that while the U.S. has not signed all the applicable treaties, many of our allies have, and therefore it is important to understand what limitations our coalition partners may be facing and the impact on U.S. operations.
a.
The primary legal concern with landmines is that they violate the law of war principle of discrimination. A landmine cannot tell if it is being triggered by an enemy combatant or a member of the civilian population.

b.
When considering legal restrictions on landmines, three questions must be answered:

(1)What type of mine is it? Anti-personnel (APL), anti-tank, or anti-tank with anti-handling device?
(2)How is the mine delivered? Remotely or non-remotely?
(3)Does it ever become inactive? Is it “smart” or “dumb?’
c. The primary treaty that restricts U.S. use of mines is Amended Protocol
11. Amended Protocol I1 amends Protocol I1 to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW). The Senate ratified and the President signed the amendment on 24 May 1999. Amended Protocol 11:
(1)Expands the scope of the original Protocol to include internal armed conflicts;
(2)Requires that all remotely delivered APL be equipped with self- destruct devices and backup self-deactivation features (in other words, be smart);
(3)Requires that all non-remotely delivered APL not equipped with such devices (dumb mines) be used %ithin controlled, marked, and monitored minefields;
(4)Requires that all APL be detectable using available technology;
(5)Requires that the party laying mines assume responsibility to ensure against their irresponsible or indiscriminate use;
(6)Provides for means to enforce compliance.
(7)Amended Protocol I1 also clarifies the use of the M18 Claymore “mine” when used in the tripwire mode (Art. 5(6)). (When used in command-detonated mode, the Protocol does not apply, as the issue of distinction is addressed.) Claymores may be used in the tripwire mode without invoking the “dumb” mine restrictions of Amended Mines Protocol I1 if:
(a)
They are not left out longer then 72 hours;

(b)The Claymores are located in the immediate proximity of the military unit that emplaced them; and

(c)
The area is monitored by military personnel to ensure civilians stay out of the area.

d.
In addition to Amended Protocol 11, there exists a Presidential Decision Directive that sets out further U.S. policy on anti-personnel land mines. PDD 54 states that U.S. forces may no longer employ “dumb” (those that do not self-destruct or self-neutralize) anti-personnel land mines. See Presidential Decision Directive 54 (16 May 1996). Exceptions to this policy:

(1)Use of “dumb” mines on the Korean Peninsula to defend against and armed attack across the DMZ; and
(2)Use of “dumb” mines for training purposes.
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(3)Note: as of this writing PDD 54 is under review and may be modified in the near future.
e.     Although not applicable to the U.S., many nations, including many of our allies, have signed the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction. This treaty is commonly referred to as the Ottawa Treaty. The treaty entered into force on 1 March 1999. As of 1 April 2003, 146 states had signed the treaty, and 132 had ratified it. Although the U.S. joined the Process in September of 1997, it withdrew when other countries would not allow exceptions for the use of APL mines in Korea and other uses of smart APL. Note: Ottawa only bans APL; therefore Ottawa does not restrict our allies in regards to anti-tank or anti-tank with anti-handling device mines.
2.     Booby Traps. A device designed to kill or maim an unsuspecting person who disturbs an apparently harmless object or performs a normally safe act. Amended Protocol I1 of the 1980 Conventional Weapons Convention contains specific guidelines on the use of booby-traps in Article 7:
I. Without prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use booby-traps and other devices which in any way attached or associated with:
(a)
internationally recognizedprotective emblems, signs or signals;

(b)
sick, wounded or deadpersons;

(c)
burial or cremation sites or graves;

(d)
medical     facilities, medical equipment, medical supplies or transportation;

(e)
children’s toys or other portable objects or products speciJically designed for the feeding, health, hygiene, clothing or education of children;

Cfl food or drink;
(dkitchen utensils or appliances except in military establishments;

(h)
objects clearly of a religious nature;

(i)
historic monuments, works or art or places of worship which

constitute the cultural or spiritual heritage ofpeoples; 6) animals or their carcasses
a.     The above list is a useful “laundry list” for the operational law attorney to use when analyzing the legality of the use of a booby-trap. There is one important caveat to the above list. Sub-paragraph l(f) of article 7 prohibits the use of booby-traps against “food or drink.” Food and drink are not defined under the Protocol, and if interpreted broadly, could
181
Ch~lpter7 i\4ean.s uncl Methods
include such viable military targets as supply depots and logistical caches. Consequently, it was imperative to implement a reservation to the Protocol that recognized that legitimate military targets such as supply depots and logistical caches were permissible targets against which to employ booby-traps. The reservation clarifies the fact that stocks of food and drink, if judged by the United States to be of potential military utility, will not be accorded special or protected status.
3.
Cluster Bombs or Combined Effects Munitions: CEM is an effective weapon against such targets as air defense radars, armor, artillery, and personnel. However, because the bomblets are dispensed over a relatively large area and a small percentage of them typically fail to detonate, there is an unexploded ordinance hazard associated with this weapon. These submunitions are not mines, are acceptable under the laws of armed conflict, and are not timed to go off as anti-personnel devices. However, if the submunitions are disturbed or disassembled, they may explode, thus, the need for early and aggressive EOD clearing efforts. (USDoD Report to Congress: Kosovo/Operation Allied Force Ajler Action Report). See Maj. Thomas Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 5 1 A.F.L. Rev. 229 (2001).

4.
Incendiaries. FM 27-1 0, para. 36. Examples: Napalm, flame-throwers, tracer rounds, and white phosphorous. None of these are illegal per se or illegal by treaty. The only U.S. policy guidance is found in paragraph 36 of FM 27-10 which warns that they should “not be used in such a way as to cause unnecessary suffering.”

a.
Napalm and Flamethrowers. Designed for use against armored vehicles, bunkers, and built-up emplacements.

b.
White phosphorous. Designed for igniting flammable targets such as fuel, supplies, and ammunition and for use as a smoke agent. White phosphorous (Willy Pete) artillery and mortar ammunition is often used to mark targets for aerial bombardment.

c.
Protocol I11 of the 1980 Conventional Weapons Convention prohibits use of air-delivered incendiary weapons on military objectives located within concentrations of civilians. Has not been ratified by the U.S.

(1)The U.S. is currently considering ratifying the Protocol -with a reservation that incendiary weapons may be used within areas of civilian concentrations if their use will result in fewer civilian
182 Chapter 7 hlecms and Methods
casualties. For example: the use of incendiary weapons against a chemical munitions factory in a city could, cause fewer incidental civilian casualties. Conventional explosives would probably disperse the chemicals, where incendiary munitions would burn up the chemicals.
(2)Tracers are not incendiaries, Art 1 (l)(b).
5.
Lasers.     US Policy (announced by SECDEF in Sep. 95) prohibits use of lasers specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision. Recognizes that collateral or incidental damage may occur as the result of legitimate military use of lasers (rangefinding, targeting). This policy mirrors that found in Protocol IV of the 1980 Conventional Weapons Treaty. The Senate is reviewing Protocol IV for its advice and consent for ratification.

6.
Chemical Weapons. Poison has long been outlawed battle as it was considered a treacherous means of warfare. Chemical weapons more specifically have been regulated since the early 1900s by several treaties.

a.     The 1925 Geneva Protocol. FM 27-10, para 38, change 1. Applies to all international armed conflicts.
(1)Prohibits use of lethal, incapacitating, and biological agents. Protocol prohibits use of “asphyxiating, poisonous, or other gases and all analogous liquids, materials or devices. .. .”
(2)The U.S. considers the 1925 Geneva Protocol as applying to both lethal and incapacitating chemical agents.
(3)Incapacitating Agents: Those chemical agents producing symptoms that persist for hours or even days after exposure to the agent has terminated. U.S. views riot control agents as having a “transient” effect –and thus are NOT incapacitating agents. Therefore, the U.S. position is that the treaty does not prohibit the use of RCA in war. (Other nations disagree with interpretation.) See further discussion below on riot control agents.
(4)Under the Geneva Protocol of 1925 the U.S. reserved the right to use lethal or incapacitating gases if the other side uses them first. FM 27-10, para. 38b, change 1. The reservation did not cover the right to use bacteriological methods of warfare in second use. Presidential approval is required for use. E.O. 11850,40 Fed. Reg. 16187 (1975); FM 27- 10, para. 38c, change 1. HOWEVER, THE US RATIFIED THE CHEMICAL WEAPONS CONVENTION (CWC) IN 1997. THE CWC DOES NOT ALLOW THIS “SECOND USE.
(5)Riot Control Agents. U.S. has an understanding to the Treaty that these are not prohibited.
b.     1993 Chemical Weapons Convention (CWC). This treaty was ratified by the U.S. and came into force in April 1997.
(1)Provisions (twenty four articles). Key articles are:
(a)
Article I. Parties agree to never develop, produce, stockpile, transfer, use, or engage in military preparations to use chemical weapons. Retaliatory use (second use) notallowed; significant departure from 1925 Geneva Protocol. Requires destruction of chemical stockpiles. Each party agrees not to use Riot Control Agents (RCAs) as a “method of warfare.”

(b)
Article 11. Definitions of chemical weapons, toxic chemical, RCA, and purposes not prohibited by the convention.

(c)
Article 111. Requires parties to declare stocks of chemical weapons and facilities they possess.

(d)Articles IV and V. Procedures for destruction and verification, including routine on-site inspections.
(e)
Article VIII. Establishes the Organization for the Prohibition of Chemical Weapons (OPWC).

(f)
Article IX. Establishes “challenge inspection,” a short notice inspection in response to another party’s allegation of non- compliance.

7. Riot Control Agents (RCA). Use of riot control agents by U.S. troops is governed by four key documents. In order to determine which documents apply to the situation at hand, you must first answer one hndarnental question: is the U.S. currently engaged in war? If so, use of RCA is governed by the CWC and Executive Order 11 850. If not, then use of RCA
Chapter 7 Mecms clnd Methods
is governed by CJCSI 3 1 10.07A7 and, more tangentially, by the Senate’s resolution of advice and consent to the CWC.
a.     War. In determining if the U.S. is at war for purposes of use of RCA, the question is whether the international armed conflict the U.S. is involved in is of a scope, duration, and intensity to be an operation that triggers the application of the law of war (a CA 2 conflict).
(1)CWC. As noted above, the CWC prohibits use of RCA as a “method of warfare.” The President decides if a requested use of RCA qualifies as a “method of warfare.” As a general rule, during war, the more it looks like the RCA is being used on enemy combatants, the more likely it will be considered a “method of warfare” and prohibited.
(2)Executive Order 11 850. Guidance also exists in EO 11850. Note that EO 11850 came into force nearly 20 years before the CWC. EO 11850 applies to use of RCA and herbicides. It requires Presidential approval before use and only allows for RCA use in armed conflicts in defensive military modes to save lives, such as:
(a) controlling riots;
(b)dispersing civilians where the enemy uses them to mask or screen an attack;
(c) rescue missions for downed pilots, escaping PWs, etc.; and
(d)for police actions in our rear areas.
(3)The rationale for the prohibition against use of RCA on the battlefield
–
we do not want to give states the opportunity for subterfuge. Keep all chemical equipment off the battlefield, even if it is supposedly only for use with RCA. Secondly, we do not want an appearance problem -with combatants confusing RCA equipment as equipment intended for chemical warfare. EO 11850 is still in effect and RCA can be used in certain defensive modes with presidential authority. However, any use in which “combata&” may be involved will most likely not be approved.

b.
Military Operations Other Than War (MOOTW). During MOOTW operations, the CWC and EO 11 850 do NOT apply. Rather, CJCSI 31 1 O.O7A applies to RCA use during MOOTW operations. The . authorization for RCA use during a MOOTW may be at a lower level than

185
Cl1uyrer 7 Means and Methods
the President. CJCSI 3 1 10.07A states the United States is not restricted
by the Chemical Weapons Convention in its use of RCAs, including
against combatants who are a party to a conflict, in any of the following
cases:
(1)The conduct of peacetime military operations within an area of ongoing armed conflict when the United States is not a party to the conflict.
(2)Consensual peacekeeping operations when the use of force is authorized by the receiving state including operations pursuant to Chapter VI of the UN charter.
(3)Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the UN charter.
(4)These allowable uses are drawn from the language of the Senate’s resolution of advice and consent for ratification of the CWC (S. Exec. Res. 75 -Senate Report section 3373 of 24 April 1997). The Senate required that the President certify when signing the CWC that the CWC did not restrict in any way the above listed uses of RCA. In essence, then, the Senate made a determination that the listed uses were not “war,” triggering the application of the CWC.
(a) The implementation section of the resolution requires that the
President not modify E.O. 11850. See S. Exec Res. 75, section 2 (26)(b).
(b)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 U.S. is not engaged in the use of force of a scope, duration, and intensity that would trigger the laws of war with respect to U.S. forces.”
(5)Thus, during peacekeeping missions (such as Bosnia, Somalia, Rwanda and Haiti) it appears U.S. policy will maintain that we are not a party to the conflict for as long as possible. Therefore, RCA would be available for all purposes. However, in armed conflicts (such as Operation Iraqi Freedom, Desert Storm, and Panama) it is unlikely that the President will approve the use of RCA in situations where
Chapter 7
Mecms (2nd Methods
“combatants” are involved due to the CWC’s prohibition on the use of RCA as a “method of warfare.”
8.
Herbicides. EO 11850 renounces first use in armed conflicts, except for domestic uses and to control vegetation around defensive areas. (e.g., Agent Orange in Vietnam.).

9.
Biological. The 1925 Geneva Protocol prohibits bacteriological methods of warfare. The 1972 Biological Weapons Convention supplements the 1925 Geneva Protocol and prohibits the production, stockpiling, and use of biological and toxin weapons. U.S. renounced &luse of biological and toxin weapons.

10.Nuclear Weapons. FM 27- 10, para. 35. Not prohibited by international law. On 8 July 1996, the International Court of Justice (ICJ) issued an advisory opinion that “There is in neither customary nor international law any comprehensive and universal prohibition of the threat or use of nuclear weapons.” However, by a split vote, the ICJ also found that “The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict.” The ICJ stated that it could not definitively conclude whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of the state would be at stake. 35 I.L.M. 809 (1996).
V. TACTICS
A. “Tricking” the enemy
1. Ruses. FM 27-10, para. 48. Injuring the enemy by legitimate deception (abiding by the law of war–actions are in good faith). Examples of ruses include:
a. Naval Tactics. A common naval tactic is to rig disguised vessels or dummy ships, e.g., to make warships appear as merchant vessels.
(1) World War I -Germany: Germany often fitted her armed raiders with dummy funnels and deck cargoes and false bulwarks. The German raider Kormoran passed itself off as a Dutch merchant when approached by the Australian cruiser Sydney. Once close enough to open fire she hoisted German colors and fired, sinking Sydney with all
Chapter 7 Means and il4ethod.s
hands. See C. John Colombos, The International Law of the Sea 454- 55 (1962).
(2)World War I1 -Britain: British Q-ship program during WWII. The British took merchant vessels and outfitted them with concealed armaments and a cadre of Royal Navy crewmen disguised as merchant mariners. When spotted by a surfaced U-boat, the disguised merchant would allow the U-boat to fire on.them, then once in range, the merchant would hoist the British battle ensign and engage the U-boat. The British sank 12 U-boats by this method. This tactic caused the Germans to shift from surfaced gun attacks to submerged torpedo attacks. LCDR Mary T. Hall, False Colors and Dummy Ships: The Use of Ruse in Naval Warfare, Nav. War. Coll. Rev., Summer 1989, at
60.
b. 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. FM 27- 10, para. 5 1.
(1)World War I1 -Allies: The classic example of this ruse was the Allied Operation Fortitude prior to the D-Day landings in 1944. The Allies, through the use of false radio transmissions and false references in bona fide messages, created a fictitious First US Army Group, supposedly commanded by General Patton, located in Kent, England, across the English Channel from Calais. The desire was to mislead the Germans to believe the cross-Channel invasion would be there, instead of Normandy. The ruse was largely successful. John Keegan, Second World War 373-79 (1989).
(2)
Gulf War -Coalition: Coalition forces, specifically XVIII Airbome Corps and VII Corps, used deception cells to create the impression that they were going to attack near the Kuwaiti boot heel, as opposed to the “left hook” strategy actually implemented. XVIII Airbome Corps set up “Forward Operating Base Weasel” near the boot heel, consisting of a phony network of camps manned by several dozen soldiers. Using portable radio equipment, cued by computers, phony radio messages were passed between fictitious headquarters. In addition, smoke generators and loudspeakers playing tape-recorded tank and truck noises were used, as were inflatable Humvees and helicopters. Rick Atkinson, Crusade, 33 1-33 (1993).

c.
Use of Enemy Property. Enemy property may be used to deceive under the following conditions:

Chapter 7 Mems and Meth0d.s
(1)Uniforms. Combatants may wear enemy uniforms but cannotfight in them. Note, however, that military personnel not wearing their uniform may lose their PW status if captured and risk being treated as spies (FM 27-10, para. 54, 74; NWP 1-14M, para. 12.5.3; AFP 110-3 1, 8-6).
(a)
World War 11 -Germany: The most celebrated incident involving the use of enemy uniforms was the Otto Skorzeny trial arising from activities during the Battle of Bulge. Otto Skorzeny was brigade commander of the 150th SS Panzer Brigade. Several of his men were captured in US uniforms, their mission being to secure three critical bridges in advance of the German attack. 18 of Skorzeny’s men were executed as spies following the battle. Following the war, ten of Skorzeny’s officers, as well as Skorzeny himself, were accused of the improper use of enemy uniforms, among other charges. All were acquitted. The evidence did not show that they actually fought in the uniforms, consistent with their instructions. The case generally stands for the proposition that it is only the fighting in the enemy uniform that violates the law of war. (DA Pam 27- 16 1-2 at 54). For listing of examples of the use of enemy uniforms see W. Hays Parks, Air War and the Law of War, 32 A.F.

L.
Rev. 1,77-78 (1 990). For an argument against any use of the enemy’s uniform see Valentine Jobst 111, Is the Wearing of the Enemy’s Uniform a Violation of the Laws of War?, 35 Am. J. Int’l

L.
435 (1941).

(2)
Colors. The U.S. position regarding the use of enemy flags is consistent with its practice regarding uniforms, i.e., the U.S. interprets the “improper use” of a national flag (HR, art. 23(f).) to permit the use of national colors and insignia of enemy as a ruse as long as they are not employed during actual combat (FM 27-10, para. 54; NWP 1- l4M, para 12.5).

(3)Equipment. Must remove all enemy insignia in order to fight with the equipment. Captured supplies: may seize and use if state property. Private transportation, arms, and ammunition may be seized, but must be restored and compensation fixed when peace is made. HR, art. 53.
(4)Protocol I. GP I, Article 39(2) prohibits virtually all use of these enemy items. See NPW 1- l4M, para 12.5.3. Article 39 prohibits the use in an armed conflict of enemy flags, emblems, uniforms, or insignia while engaging in attacks or “to shield, favour, protect or impede military operations.” The U.S. does not consider this article reflective of customary law. This article, however, expressly does not apply to naval warfare, thus the customary rule that naval vessels may fly enemy colors, but must hoist true colors prior to an attack, lives on. GP I, art 39(3); NWP 1-14M, para. 12.5.1.
2. Treacheryperfidy. In contrast to the lawful ruses discussed above, treachery and perfidy are prohibited under the law of war. FM 27- 10, para. 50; HR. art. 23b. They involve injuring the enemy by his adherence to the law of war (actions are in bad faith). As noted below, treacherylperfidy can be further broken down into feigning and misuse.
a.
Condemnation. Condemnation of perfidy is an ancient precept of the LOW, derived from principle of chivalry. Perfidy degrades the protections and mutual restraints developed in the mutual interest of all Parties, combatants, and civilians. In practice, combatants find it difficult to respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their claim to protection under the LOW to gain a military advantage. Thus, the prohibition is directly related to the protection of war victims. Practice of perfidy also inhibits restoration of peace. Michael Bothe, et. al., New Rules for Victims ofArmed Conflicts, 202 (1982); FM 27-10, para. 50.

b.
Feigning and Misuse. Distinguish feigning from misuse. Feigning is treachery that results in killing, wounding, or capture of the enemy. Misuse is an act of treachery resulting in some other advantage to the enemy.

c.
Protocol I. According to GP I, Article 37(1), the killing, wounding, or capture via “[alcts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence [are perfidious, thus prohibited acts].” (U.S. considers customary international law.) Article 37(1) does not prohibit perfidy per se; only certain perfidious acts that result in killing, wounding, or capturing, although it comes very close. The ICRC could not gain support for an absolute ban on perfidy at the diplomatic conference.

Chapter 7 Means clnd Methods
Bothe at 203. Article 37 also refers only to confidence in international law (LOW), not moral obligations. The latter viewed as too abstract by certain delegations. (Id. at 204-05.) Note, however, that the US view includes breaches of moral, as well as legal obligation as being a violation, citing the broadcasting of an announcement to the enemy that an armistice had been agreed upon when it had not as being treacherous. FM 27-10, para 50.
d.
Feigning incapacitation by wounds/sickness. GPI, art. 37(l)(b). Wh’iteman says HR, Article 23b also prohibits this, e.g. faking wounds and then attacking approaching soldier. Marjorie M. Whiteman, Depft of State, 10 Digest of International Law 390 (1968); NWP 1-14M, para. 12.7.

e.
Feigning surrender or the intent to negotiate under a flag of truce. GP I, Art 37(l)(a). Note that in order to be a violation of GP I, Article 37, the feigning of surrender or an intent to negotiate under a flag of truce must result in a killing, capture, or surrender of the enemy. Simple misuse of a flag of truce, not necessarily resulting in one of those consequences is, nonetheless, a violation of Article 38 of Protocol I, which the U.S. also considers customary law. An example of such misuse would be the use of a flag of truce to gain time for retreats or reinforcements. Morris Greenspan, The Modern Law of Land Warfare 320-2 1 (1 959). Article 3 8 is analogous to the Hague IV Regulation prohibiting the improper use of a flag of truce, art 23(f).

(1)Falklands War -British: During the Battle for Goose Green, some Argentinean soldiers raised a white flag. A British lieutenant and 2 soldiers went forward to accept what they thought was a surrender. They were killed by enemy fire. The incident was disputed. Apparently, one group of Argentines was attempting to surrender, but not another group. The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers, but it was not treacherous if other Argentines, either unaware of the white flag or not wishing to surrender, killed them. This incident emphasizes the rule that the white flag is an indication of a desire to negotiate only and that its hoister has the burden to come forward. See Major Robert D. Higginbotham, Case Studies in the Law of Land Warfare 11: The Campaign in the Falklands, Mil. Rev., Oct. 1984, at 49.
(2)Desert Storm -Battle of Khafji incident was a perfidious act. Media speculated that Iraqi tanks with turrets pointed to the rear, then
Chapter 7 ilfians and hfethod~
turning forward to fire when action began, was perfidious act. DOD Report to Congress rejected that observation, stating that the reversed turret is not a recognized symbol of surrenderper se. “Some tactical confusion may have occurred, since Coalition ground forces were operating under a defensive posture at that time, and were to engage Iraqi forces only on a clear indication of hostile intent, or some hostile act.” Dep’t of Defense, Final Report to Congress: Conduct of the Persian Gulf War 621 (1 992).
(3)Desert Storm -On one occasion, however, Iraqi forces did apparently engage in perfidious behavior. In a situation analogous to the Falklands War scenario above, Iraqi soldiers waved a white flag and also laid down their arms. As Saudi forces advanced to accept the surrender, they took fire from Iraqis hidden in buildings on either side of street. Id. Similar conduct occurred during Operation Iraqi Freedom when Iraqis took some actions to indicate surrender and then opened fire on Marines moving forward to accept the surrender.
(4)Desert Storm -On another occasion an Iraqi officer approached Coalition force with hands up indicating his intent to surrender. Upon nearing the Coalition forces he drew a concealed pistol, fired, and was killed. Id.
f.
Feigning civilian, noncombatant status. “Attacking enemy forces while posing as a civilian puts all civilians at hazard.” GP I, art 37(l)(c); NWP 1-14M, para. 12.7.

g.
Feigning protected status by using UN, neutral, or nations not party to the conflict’s signs, emblems, or uniforms. GP I, art 37(l)(d).

(1)As an example, on 26 May 1995, Bosnian Serb commandos dressed in uniforms, flak jackets, helmets, weapons of the French, drove up to French position on a Sarajevo bridge in an APC with UN emblems. French forces thought all was normal. The commandos, however, then proceeded to capture French peacekeepers without firing a shot. Joel Brand, French Units Attack Serbs in Sarajevo, Wash. Post, May 28, 1995, at Al.
(2)It is not perfidy (a violation of Art 37) to (mis)use the emblem of the UN to try to gain protected status if the UN has member forces in the conflict as combatants (even just as peacekeepers). As in the case of the misuse of the flag of truce, misuse of a UN emblem that does not
192
Chapter 7
Mems i~ndMethods
result in a killing, capture, or surrender, is nonetheless, a violation of Art 38 of GPI because that article prohibits the use of the UN emblem without authorization.
h. Misuse of Red Cross, Red Crescent, cultural property symbol.
(1)Designed to reinforcelreaffirm HR, Article 23f.
(2)GWS requires that wounded & sick, hospitals, medical vehicles, and in some cases, medical aircraft be respected and protected. Protection lost if committing acts harmful to enemy. As an example, during the Grenada Invasion, US aircraft took fire from the Richmond Hills Hospital, and consequently engaged it. DA Pam 27-161-2, p. 53, n.
61.
(3)Cultural property symbols include 1954 Hague Cultural Property Convention, Roerich Pact, 1907 Hague Conventions symbol. Bothe at
209.
i.
Misuse of internationally recognized distress signals, e.g., ICAO, IMCO distress signals.

B.
Assassination. Hiring assassins, putting a price on the enemy’s head, and offering rewards for an enemy “dead or alive” is prohibited. (FM 27-10, para 3 1;

E.O.
12333.) Targeting military leadership, however, is not assassination. See

W.
Hays Parks, Memorandum of Law: Executive Order 12333and
Assassination, Army Law. Dec. 1989, at 4.

C.
Espionage. FM 27-10, para. 75; GP I, art. 46. Acting clandestinely (or on false pretenses) to obtain information for transmission back to friendly side. Gathering intelligence while in uniform is not espionage.

1.
Espionage is not a law of war violation.

2.
No protection, however, under Geneva Conventions for acts of espionage.

3.
Tried under the laws of the capturing nation. E.g., Art. 106, UCMJ.

4.
Reaching friendly lines immunizes spy for past espionage activities. Therefore, upon later capture as a lawful combatant, past spy cannot be tried for past espionage.

Chapter 7 Means and ibfethods
D. Belligerent or wartime reprisals. FM 27-10, para 497. An otherwise illegal act done in response to a prior illegal act by the enemy. The purpose of a reprisal is to get the enemy to adhere to the law of war.
1. Reprisals are authorized if the following requirements are met:
a.
it’s timely;

b.
it’s responsive to enemy’s act that violated the law of war;

c.
it follows an unsatisfied demand to cease and desist; and

d.
it is proportionate.

2.
Prisoners of war and persons “in your control” cannot be objects of reprisals. Protocol I prohibits reprisals against numerous targets such as the entire civilian population, civilian property, cultural property, objects indispensable to the survival of the civilian population (food, livestock, drinking water), the natural environment, installations containing dangerous forces (dams, dikes, nuclear power plants) (GP I, arts. 5 1-56). The U.S. specifically objects to Article 5 l(6) as not reflective of customary international law.

3.
US policy is that a reprisal may be ordered only at the highest levels
(President).

Chapter 7 Mems mu’ Methods
NOTES

Chapter 7
Means and Methods

NOTES

Chapter 7
Meczns and Methods

NOTES

Uluyter 7
Means and Methods

NOTES

Chapter 7
Meuns cmd Melhods

CHAPTER8
WAR CRIMES AND COMMAND RESPONSIBILITY
REFERENCES
1.
Constitution, art. I, 5 8, cls. 10 & 14, art. I, 5 10, art. VI.

2.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, arts. 49-5 1,6 U.S.T. 3 114, 75 U.N.T.S. 3 1, [hereinafter GWS].

3.
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, arts. 50-52, 6 U.S.T. 3217, 75

U.N.T.S. 85 [hereinafter GWS Sea].
4.
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 102, 105- 08, 129-131,6 U.S.T. 3316,75 U.N.T.S. 135 [hereinafter GPW].

5.
Geneva Convention Relative to the Protection of Civilians in Time of War, Aug. 12, 1949, arts. 146-148,6 U.S.T. 35 l6,75 U.N.T.S. 287 [hereinafter GC].

6.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977,

U.N. Doc. A1321144, Annex I, arts. 11, 85, 86, 87, reprinted in Dep’t of Army, Pamphlet 27-1-1 [hereinafter DA Pam 27- 1-1, Protocol I].
7.
Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 3,36 Stat. 2277,2290,205 Consol. T.S. 277,284 [hereinafter H IV].

8.
International Committee of the Red Cross, Commentary on I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 at 351-73 (Jean S. Pictet ed., 1952) [hereinafter I Pictet].

9.
UCMJ arts. 18,21,92 (1998).

10.
Manual for Courts-Martial, United States, pt. I, 5 2, R.C.M. 201(f)(l)(B), 201(g), R.C.M. 307(c)(2), R.C.M. 916 (2000).

11.
Dep’t of Defense, Directive 5100.77, DoD Law of War Program, fi(2.3. & E.2.e.(3) (December

9. 1998) [hereinafter DOD Dir. 5100.771.
12.
Chairman of the Joint Chiefs of Staff Instruction 5810.01B (25 March 2002)

13.
Dep’t of Army, Field Manual 27-10, The Law of Land Warfare, ch. 8 (18 July 1956) [hereinafter FM 27-10].

14.
Dep’t of Army, Pamphlet 27-161-2, International Law, ch. 8 (23 Oct. 1962) [hereinafter DA Pam 27-161-21.

15. International Military Tribunal, TFUAL OF THE MAJOR WAR CRIMINALS (1 947) (42 volumes).
16. TRIALS OF WAR CRIMINALS THE NUREMBERG TRIBUNALSBEFORE MILITARY UNDER CONTROL COUNCILLAW NO. 10 (1950) (15 volumes) bereinafter Trials of War Criminals].
17. International Japanese War Crimes Trials in the International Military Tribunal for the Far East (209 volumes).
199
Chuptrv 8 Wur C’rmes und Cornrnur~d Rrsponsibihj~
18.
United Nations War Crimes Commission, LAW REPORTS OF TRIALS (1948)

OF WAR CRIMINALS (1 5 volumes).

19.
United Nations War Crimes Commission, HISTORY OF THE UNITEDNATIONSWAR CRIMES
COMMISS~ON

(1948).
20.
Statute of the International Criminal Tribunal for the Former Yugoslavia. S.C.Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N.Doc. S/RES/808 (1993); further amended in U.N. Security Council Resolutions 1166 (13 May 1998), 1329 (30 Nov 2000) and 141 1 (17 May 2002).

21.
Report of the Secretary-General Pursuant to Para. 2 of Security Council Resolution 808 (1993),

U.N. Doc. Sl25704 (1993), reprinted in 32 I.L.M. 1159 (1993) [hereinafter Rept.of Secretary- General].
22.
Rules of Procedure & Evidence, International Criminal Tribunal for the Former Yugoslavia Since 1991, Seventh Session, the Hague, U.N. Doc. IT/32/Rev. 22 (Dec. 13,2001).

23.
S.C. Res, 955, U.N. SCOR, U.N. DOC. S/RES/955(1994), reminted in 33 I.L.M. 1598, Nov.8, 1994 [hereinafter Rwanda Statute].

24.
18 U.S.C. 5 2441, P.L., 104-192 (War Crimes Act of 1996, as amended).

25.
https://www.un.org/icty; http:/hmv.ictr.org; https://www.un.org/law/icc; wwwsierra-

leone.org/documents-specialcourt.htm1

26.
William H. Parks, Command Responsibility For War Crimes, 62 MIL. L. REV. 1 (1973).

27.
Michael Srnidt, Yamashita, Medina, and Beyond, Command Responsibility in Contemporary Operations, 164 Mil. L. Rev. 155 (2000).

28.
Matthew Lippman, Humanitarian Law: The Uncertain Contours of Command Responsibility, 9 Tulsa J. Comp. & Int’l L. 1 (2001).

29.
SUN TZU, THE ART OF WAR (Samuel B. Griffith trans., Oxford Univ. Press 1963).

30.
LYNN MONTROSS, WAR THROUGH THE AGES 105, 164 (Third Edition, 1960).

31.
Theodor Meron, Crimes and Accountnbility in Shakespeare, 92 Am. J. Int’l L. 1 (1998).

32.
Theodor Meron, Shakespeare’s Henry the Fifth and the Law of War, 86 Am. J. Int’l L. 1 (1992).

33.
YORAM DINSTEIN & MALA TAE3ROY, WAR CRIMES IN INTERNATIONAL LAW (1996).

34.
Henry T. King, Jr., The Meaning ofNuremberg, 30 Case W. Res. J. Int’l L. 143 (1998).

I. OBJECTIVES:
A. The history of the law of war as it pertains to war crimes and war crimes
prosecutions, focusing on the enforcement mechanisms.

B. The definition of war crimes.
C. The doctrine of command responsibility.
D. Under what jurisdiction and in what forums war crimes may be prosecuted.
11.     HISTORY AND DEVELOPMENT OF WAR CRIMES AND WAR
CRIMES PROSECUTIONS.

200
Chapter 8 War Crzmes trnd Comm~rndRe.pnsihli(v
A. Warfare in China, 500 B.C. The ancient Chinese were governed by certain rules of war. For example, it was forbidden in combat to strike elderly men or further injure an enemy previously wounded. Sm Tzu, THE ART OF WAR (Samuel B. Griffith trans., Oxford Univ. Press 1963).
B. Byzantine Empire, 527 -107 1 A.D. Even when surrounded by numerous and savage enemies, the Byzantine Horse-Archers’ creed included immunity for women and other non-combatants. LYNN MONTROSS, THE AGES
WAR THROUGH
105, 164 (Third Edition, 1960).

C. Middle Ages. Warriors developed a code of conduct that became known as chivalry and the forerunner to modem laws of war. The code was a result of the notion that those that bore arms were honorable and those that did not lacked honor. The focus was on the preservation of honor between combatants, not on humanitarian protections for non-combatants. For example, although outlawed in many codes of chivalry, rape was considered a proper incentive in some armies for soldiers involved in siege warfare. Jus Armorum or Jus Militare, the Law of Arms, was not a body of law between nations; but rather, a body of norms which governed the conduct of military professionals. These rules regulated the conduct of soldiers within Christendom, but not those outside such as Muslims or non-Christians. Theodor Meron, Crimes and Accountability in Shakespeare, 92 Am. J. Int’l L. 1 1998); Theodore Meron, Shakespeare’s Henry the Fifth and the Law of War, 86 Am. J. Int’l L. 1 (1992); YORAM DINSTEIN
&
MALATABORY, ININTERNATIONAL
WAR CRIMES LAW (1996).
D. The Scottish Wars of Independence From England. Scottish national hero Sir William Wallace was tried in England in 1305 for the wartime murder of civilians. G.W.S. BARROW, ROBERTBRUCE203 (1965) (reporting that Sir Wallace allegedly spared “neither age nor sex nor nun”).
E. The Trial of Peter Von Hagenbach, 1439. An international tribunal of judges from 28 states stripped Hagenbach of his knighthood and sentenced him to death for murder, rape, perjury and other crimes against “the laws of God and man,” what today would be described as Crimes Against Humanity. William H. Parks, Command Responsibility For War Crimes, 62 MIL. L. REV. 1 (1973).
F. The American War of Independence. The most frequently punished violations were those committed by forces of the two armies against the persons and property of civilian inhabitants. Trials consisted of courts-martial convened by commanders of the offenders. George L. Coil, War Crimes of the American Revolution, 82 ML.L. REV. 171, 173-81 (1978).
201
C1qvtc.r 8 Wcu Crimes und Command Responsihilily
G. The American Civil War. In 1865, Captain Henry Wirz, a former Confederate officer and commandant of the Andersonville, Georgia prisoner of war camp, was tried and convicted and sentenced to death by a Federal military tribunal for murdering and conspiring to ill-treat Federal prisoners of war. J. MCELROY, ANDERSONVILLE(1 879); W.B. HESSELTINE, CIVIL WAR PRISONS (1930); LAW OF WAR: A DOCUMENTARY VOL. 1 783 798 (Leon Friedman, ed.)
HISTORY. –
(1 972).

H. The Anglo-Boer War. In 1902, British courts-martial tried Boers for acts contrary to the usages of war. THE MILNER PAPERS:SOUTHAFRICA, 1 897- 1 899, 1899-1905 (1933).
I.     Counter-insurgency operations in the Philippines. Brigadier General Jacob H. Smith, US Army, was tried and convicted by court-martial for inciting, ordering and permitting subordinates to commit war crimes. L. C. Green, Command Responsibility in International Humanitarian Law, 5 TRANSNAT’L
L. & CONTEMP. PROBS.3 19, 326 (1995); S. DOC. 213, 57’h Cong. 2nd Session, p. 5.
J.     World War I. Because of German resistance to the extradition–under the 1919 Versailles peace treaty-of persons accused of war crimes, the Allies agreed to permit the cases to be tried by the supreme court of Leipzig, Germany. The accused were treated as heroes by the German press and public, and many were acquitted despite strong evidence of guilt. DA Pam 27-1 61 -2 at 221.
K. World War 11. Victorious allied nations undertook an aggressive program for the punishment of war criminals. This included the joint trial of 24 senior German leaders (in Nuremberg) and the joint trial of 28 senior Japanese leaders (in Tokyo) before specially created International Military Tribunals; twelve subsequent trials of other German leaders and organizations in Nuremberg under international authority and before panels of civilian judges; thousands of trials prosecuted in various national courts, many of these by British military courts and US military commissions. DA Pam 27-161-2 at 224-35; NORMAN E. TUTOROW, WAR CRIMINALS, TRIALS: AN
WAR CRIMES, AND WAR CRIMES
ANNOTATED AND SOURCE

BIBLIOGRAPHY BOOK 4-8 (1 986).
L.     Geneva Conventions. Marked the codification–beginning in 1949 when the conventions were opened for signature–of specific international rules pertaining to the trial and punishment of those committing “grave breaches” of the conventions. Pictet at 357-60.
M. U.S. soldiers committing war crimes in Vietnam were tried by US courts-martial under analogous provisions of the UCMJ. MAJOR GENERAL S. PRUGH,
GEORGE
LAWAT WAR: VIETNAM

1964- 1973 76-77 (1975); W. Hays Parks, Crimes in Hostilities, Marine Corps Gazette, Aug. 1976, at 16-22.
N. Panama. In a much-publicized case arising in the 82d Airborne Division, a First Sergeant charged, under UCMJ, art. 1 18, with murdering a Panamanian prisoner, was acquitted by a general court-martial. See US v. Bryan, Unnumbered Record of Trial (Hdqtrs, Fort Bragg 3 1 Aug. 1990) [on file with the Office of the SJA, 82d Airborne Div.].
0.
The Persian Gulf War. Although the United Nations Security Council (UNSC) invoked the threat of prosecutions of Iraqi violators of international humanitarian law, the post-conflict resolutions were silent on criminal responsibility. S.C. Res. 692, U.N. SCOR, 2987th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864 (1991); see also Theodore Meron, The Case for War Crimes Trials in Yuaoslavia, Foreign Affairs, Summer 1993, at 125.

P.
The Former Yugoslavia. On 22 February 1993, the UNSC established the first international war crimes tribunal since the Nuremberg and Far East trials after World War 11. S.C. Res. 808, U.N. SCOR, 3175th mtg., U.N. Doc. S/RES/808 (1993). On 25 May 1993, the Council unanimously approved a detailed report by the Secretary General recommending tribunal rules of procedure, organization, investigative proceedings and other matters. S.C. Res. 827, U.N. SCOR, 3217th mtg., U.N. Doc. S/RES/827 (1993).

Q.
Rwanda. On Nov. 8, 1994 the UNSC adopted a Statute creating the International Criminal Tribunal for Rwanda. S.C. Res. 955, U.N. SCOR, U.N. Doc. S/RES/955 (1994). Art. 14 of the Statute for Rwanda provides that the rules of procedure and evidence adopted for the Former Yugoslavia shall apply to the Rwanda Tribunal, with changes as deemed necessary.

R.
Sierra Leone. On August 14,2000 the UNSC adopted Resolution 1315, which authorized the Secretary General to enter into an agreement with Sierra Leone and thereby establish the Special Court for Sierra Leone (signed January 16, 2002). The court is a hybrid international-domestic Court to prosecute those allegedly responsible for atrocities in the Sierra Leone.

S.
The International Criminal Court. The treaty entered into force on 1 July 2002. As of 22 December 2003,92 countries have ratified the Rome Statute of the International Criminal Court.

203
Chupter 8 Wur Crimes and C’ommu17tlResponsibility
1.
Although the U.S. is in favor of a standing permanent forum to address war crimes, the US does not support the treaty as written. The United States signed the Rome Treaty on 3 1 December 2000. Based on numerous concerns, however, President George W. Bush directed on 6 May 2002 that notification be sent to the Secretary General of the United Nations, as the depositary of the Rome Statute, that the United States does not intend to become a party to the treaty and has no legal obligations arising from its signature on 3 1 December 2000.

2.
A brief summary of the position of the United States is in the statement made on 6 May 2002 by Marc Grossman (see Appendix A).

3.
The United Nations Security Council passed Resolution 1487 on June 12, 2003 (although with abstentions by France, Germany and Syria). This requests that the ICC not commence or proceed with investigation or prosecution of any case involving current or former officials or personnel from a contributing state that is not a party to the ICC over acts or omissions relating to a UN established or authorized operation. This is to continue for 12 months with the expressed intent to renew the request each year (and it continues the same request started in UNSC Resolution 1422).

4.
During its session held in New York from 3 to 7 February 2003, the Assembly of States Parties elected the eighteen judges of the Court for a term of office of three, six, and nine years. The judges constitute a forum of international experts that represents the world’s principal legal systems. Seven were elected from the Western European and others Group of States (WEOG), four from the Latin American and the Caribbean Group of States (GRULAC), three from the Asian Group of States, three from the African Group of States, one from the Group of Eastern Europe. Seven are female and eleven are male judges.

5.
In accordance with Article 38 of the Rome Statute, the 18 judges of the Court elected the Presidency on 11 March 2003. It is composed of Judge Philippe Kirsch (Canada) as President, Judge Akua Kuenyehia (Ghana) as First Vice- President, and Judge Elizabeth Odio Benito (Costa Rica) as Second Vice- President of the Court. The Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor. However, the Presidency will coordinate and seek the concurrence of the Prosecutor on all matters of mutual concern.

..
204
Chapter 8
War Crimes and C’ornrncznd Responsibi1it.v

6.
On 26 March 2003, Luis Moreno-Ocampo became the first Chief Prosecutor for the ICC. In July 2003, he rejected requests to investigate allegations of war crimes by US forces during the war in Iraq because the ICC is not “mandated to prosecute such acts since neither Iraq nor the United States is a state party to the court.” He has’stated that the ICC may investigate charges of crimes against humanity for the massacre of thousands of civilians in Congo.

7.
On 24 June 2003, Mr. Bruno Cathala from France was appointed first Registrar of the Court, he will hold office for a renewable term of five years and will exercise his fimctions under the authority of the President.

T. President George W. Bush issued an order on November 13,2001 authorizing the trial by military commission of certain terrorists or others supporting or aiding terrorism against the United States (66 Fed. Reg. 57833).
1.
This order was further refined by DoD Military Commission Order No. 1 dated March 21,2002 and eight DoD Military Commission Instructions dated April 30,2003.

2.
On July 3,2003, President Bush determined that six enemy combatants currently held by the US are subjected to his Military Order of November 13, 200 1.

U. With the approval of the Civilian Provisional Authority, The Iraqi Governing Council approved the creation of a Special Iraqi Court on December 9,2003. It will be run by Iraqis to try members of former President Saddam Hussein’s government on charges of genocide, crimes against humanity, war crimes and a number of specific offenses under Iraqi law, such as misappropriation of government funds and the invasion of another Arab nation.
1.
The court will try the most senior members of the regime for crimes committed between July 17, 1968, when the Baath Party came to power, and May 1,2003, the day President Bush declared an end to major combat in Iraq.

2.
The court will be staffed by Iraqis, but will use international legal experts as advisors to the judges, lawyers and investigators. There is also the potential for international judges to be appointed if needed.

3.
There will be 10 trial chambers, each with a five-judge panel and a nine- judge appellate level court.

Chapter 8 War Crimes and C’on.mrand Responsibility
111. WHAT IS A WAR CRIME?
A. Definition. The lack of a clear definition for this term stems from the fact that both “war” and “crime” themselves have multiple definitions. Some scholars assert that “war crime” means any violation of international law that is subject to punishment. However, it appears that there must be a nexus between the act and some type of armed conflict.
1. “In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as lawful members of armed forces, war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders.” L. OPPENHEIM,
2 INTERNATIONAL
LAW9 25 1 (7th ed., H. Lauterpacht, 1955); accord TELFORD TAYLOR,NUREMBERG 19-20 (1970).
AND VIETNAM
2. “Crimes committed by countries in violation of the international laws governing wars. At Nuremberg after World War 11, crimes committed by the Nazis were so tried.” BLACK’S LAW DICTIONARY
15 83 (6th ed. 1990); cf.FM
27-10, para. 498 (defining a broader category of “crimes under international
law” of which “war crimes” form only a subset and emphasizing personal
responsibility of individuals rather than responsibility of states).
3.
“The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.” FM 27-10, at para. 499.

4.
As with other crimes, there is an Actus Reus and Mens Rea element.

5.
Application of the principle of nullum crimen sine lege requires that the law to be applied in the trial be binding on the defendant at the time the offense was committed. Application of either customary international law or applicable treaty provisions is required.

6.
Nulla poena sine lege requires that acts that may be punished as war crimes be clearly defined such that the defendant is on notice.

7.
Prosecution of war crimes and difficulties arising there from:

a.     Partiality
(1)War crimes prosecutions are subject to criticism as “Victor’s Justice” vice truly principled prosecution. A primary focus must be on a
206
Chapter 8
War Crimes and Cornrntrnd Respo17siDili&

fundamentally fair system of justice with consistent application of the
laws applied to all.
(2)In the trial of Admiral Donitz in part for the crime of not coming to the aid of enemy survivors of submarine attacks he argued the point that this was in fact the policy of U.S forces in the Pacific under General Nimitz. 22 I.M.T. 559 (1949).
(3)Influence of Realpolitik impacts prosecutions.
(a) Yamashita. Appearance of expedited trial with sentence (death) announced on 7DEC45. Justice Rutledge stated in his dissent that the trial was “the uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander.” 327 U.S. 1,4 1 (1946).
(b)
War crimes prosecutions not pursued post conflict. In Korean Conflict, 23 cases were ready for trial against EPWs in US custody yet they were released under terms of the armistice. Prosecution not mentioned in First Gulf War Ceasefire agreement.

b.
Legality.

(1)Ongoing issues with respect to nullurn crirnen sine lege and expost facto laws and balancing gravity of offenses yielding no statute of limitations against reliability of evidencelwitness testimony.
(2)Lack of a coherent system to define and enforce this criminal system presupposes a moral order superior to the states involved. This legally positivistic system requires a shared ethic that may or may not exist and is certainly disputed.
(3)Status of individuals under international law is relatively new, although arguably has now crystallized into customary international law principle. Historically states were held responsible as such, however, beginning with the Treaty of Versailles and definitely after WWII individuals were held responsible as actors for the state. In addition historically individuals were prosecuted in national courts for war crimes but now focus is moving to international tribunals.
c. Recording history. Didactic function of war crimes trials is important but may interfere with evidentiary procedures, e.g. by admitting more evidence than may otherwise be admitted. 207 Chapter 8 Wur CZirrres und Cbmmund Re.sl~onsihility
McCormack and Simpson, eds., The Law of War Crimes: National and International Approaches (1997)
B. The Nuremberg Categories. The Charter of the International Military Tribunal defined the following crimes as falling within the Tribunal’s jurisdiction:
1.
Crimes Against Peace. Planning, preparation, initiation, or waging of a declared or undeclared war of aggression, or war otherwise in violation of international treaties, agreements, or assurances. This was a charge intended to be leveled against high-level policy planners, not generally at ground commanders.

2.
Violation of the Laws and Customs of War. The traditional violations of the laws or customs of war. For example, targeting non-combatants.

3.
Crimes Against Humanity.     A collective category of major inhumane acts committed against any (internal or alien) civilian population before or during the war. SeeCharter of the International Military Tribunal, art. 6, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, reprinted in 1TIUALSOF WAR CRIMINALS 257 (noting that only one

9-16. See generally OPPENHEIM
accused was found guilty solely of crimes against peace and two guilty solely
of crimes against humanity).
C. Grave Breaches Versus Simple Breaches of the Law of War. The codification in 1949 of crimes involving certain serious conduct gave rise to a distinction between those crimes and acts violative of other customs or rules of war. For a grave breach, there must first be an international armed conflict. Second, the victim must be a “protected person” in one of the conventions. GWS, art. 50; GWS Sea, art. 51; GPW, art. 130; GC, art. 147.
1.
Grave Breaches. Serious felonies. Examples include: Willful killing; Torture or inhumane treatment; Biological experiments; Willfully causing great suffering or serious injury to body or health; Taking of hostages; Extensive destruction of property not justified by military necessity; Compelling a prisoner of war to serve in the armed forces of his enemy; Willfully depriving a prisoner of war of his rights to a fair and regular trial.

2.
Simple Breaches. Examples include: Making use of poisoned or otherwise forbidden arms or ammunition; Treacherous request for quarter;

208
Chupter 8 War Crimes ~2ndCoinmc-mu’Responsibility
Maltreatment of dead bodies; Firing on localities which are undefended and
without military significance; Abuse of or firing on the flag of truce; Misuse
of the Red Cross emblem; Use of civilian clothing by troops to conceal their
military character during battle; Improper use of privileged buildings for
military purposes; Poisoning of wells or streams; Pillage or purposeless
destruction; Compelling prisoners of war or civilians to perform prohibited
labor; Killing without trial spies or other persons who have committed hostile
acts; Violation of surrender terms. See FM 27-10, para. 504.
3.     Protocol I of the 1949 Geneva Conventions lists additional acts that constitute a grave breach of that Protocol. Cf.Protocol I, arts. 11(4), 85.
D. Violations Charged in current tribunals.
1. International Criminal Tribunal for the Former Yugoslavia,
a.
Crimes against Peace are not among listed offenses to be tried.

b.
Violations of the Laws or Customs of War (War Crimes)–traditional offenses such as murder, wanton destruction of cities, towns or villages or devastation not justified by military necessity, firing on civilians, plunder of public or private property and taking of hostages.

(1)The Opinion & Judgment in the Tadic case set forth elements of proof required for finding that the Law of War had been violated:
(a)
An infringement of a rule of International humanitarian law (Hague, Geneva, other);

(b)Rule must be customary law or treaty law;

(c)
Violation is serious; grave consequences to victim or breach of law that protects important values;

(d)Must entail individual criminal responsibility; and
(e)
May occur in international or internal armed conflict.

c.
Crimes Against Humanity. Those inhumane acts that affront the entire international community and humanity at large. Crimes when committed as part of a widespread or systematic attack on civilian population.

(1)Charged in the current indictments as murder, rape, torture, and persecution on political, racial, and religious grounds, extermination and deportation.
(2)In the Tadic Judgment, the Court cited elements as:
(a) A serious inhumane act as listed in Statute;
(b)Act committed in international internal armed conflict;
(c) At the time accused acted there were ongoing widespread or systematic attacks directed against civilian population;
(d)Accused knew or had reason to know helshe was participating in widespread or systematic attack on population (actual knowledge);
(e)
Act was discriminatory in nature; and

(f)
Act had nexus to the conflict.

(3)
Crimes against humanity also act as a gap filler to the crime of Genocide because a crime against humanity may exist where a political group becomes the target.

d.
Grave Breaches. As defined by the Geneva Conventions, may occur only in the context of an international armed conflict. There are eight as listed in outline, above.

(1)Charged in indictments as willful killing, torture, ,inhumane treatment, and extensive destruction of property not justified by military necessity or causing great serious injury to body or health.
(2)The Tadic court found there was no international armed conflict during the time covered by the indictment and therefore victims were not protected persons. Therefore, the court felt it lacked jurisdiction to hear grave breaches because the court first determined that the conflict was purely internal. The court concluded that for a prosecution of a grave breach, the elements are:
(a) One of eight listed acts committed;
(b)International armed conflict; and
210
Chupter 8
War Crimes and Cornmi~nd Responsihilit,~

(c)
Act committed against a protected person or property.

(3)
On July 15, 1999, the Appellate Chamber reversed the Trial Chamber and found that the conflict was international. The Appellate Chamber therefore found Tadic guilty of9 counts of grave breaches. The Trial Chamber had based its finding of not guilty solely on the grounds that the conflict was internal so the Appellate Chamber actually found him guilty of the counts rather than sending the case back to the Trial Chamber.

(4)In the Celebici case, the ICTY found that the indictment covered a period of international armed conflict. Three of the four accused were convicted of grave breaches.
e.     Genocide. Any of the listed acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
(1)Has been charged as persecution, murder, torture, serious bodily injury done to ethnic groups at detention camps, and where civilians fired upon and killed due to national or ethnic affiliation. Includes preventing births within a group, transferring children of group, serious bodily injury to member of a group or killing members of a group.
(2)Genocide v. “Ethnic Cleansing.” Ethnic cleansing is a subset of genocide; it is not a separate crime.
2. International Criminal Tribunal for Rwanda.
a.
Genocide. Same definition as above. Charged in all indictments for acts such as torturing or killing of Tutsis.

b.
Crimes against Humanity. Crimes when committed as part of widespread or systematic attack against any civil population on national, political, ethnic, racial or religious grounds.

(1)
Charged in all indictments for acts such as extermination of all Tutsis in a village, murder, torture or rape of ethnic group (Tutsi) or liberal political supporters.

c.
Article 3 Common to the Four Geneva Conventions and Additional Protocol 11. There are eight acts specified in the statute, including taking of hostages; violence to life, health, and physical or mental well being; terrorism; pillage; and executions without judgment by regularly constituted court. This list is illustrative, not exhaustive.

(2)Fills gap in definition of genocide. Authorizes prosecution for persecution on political grounds.
(1)These are war crimes committed in the context of an internal armed conflict and traditionally left to domestic prosecution, but made subject to international prosecution pursuant to the Rwanda Statute.
(2)Charged in all indictments for acts in which the indictee personally participated in or directed the crime. For example, running over a person with a vehicle to induce them to “talk,” burning homes, rape, and murder.
(3)
Tadic interlocutory appellate court decision on jurisdiction held that Common Article 3 protections apply in both international and internal armed conflict. The Tadicjudgment set out elements as follows (ICTR statute links ICTR to ICTY jurisprudence):

(a)
An armed conflict whether international or internal;

(b)Victim is person taking no part in hostilities;
(c) Act against victims is one of those listed in Common Article 3 or Protocol 11; and
(d)
Act committed in context of armed conflict (need not be while the conflict is ongoing).

E.
International Criminal Court. The ICC has jurisdiction over the following crimes:

1.
Genocide. “For the purpose of this Statute, “genocide” means .. . acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.. .” There does not appear to be a need to tie the crime of genocide with an armed conflict in order for the ICC to have jurisdiction. This is consistent with the Genocide convention.

2.
Crimes against Humanity. “For the purpose of this Statute, “crimes against humanity” means . .. acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of

212
Chapter 8
War Crirnes ~indCommand Responsihilit,~

the attack.. .” This includes acts such as murder, extermination, enslavement,
deportation or forcible transfer, imprisonment or severe depravation of
physical liberty, torture, rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, persecution against any identifiable group
based on political, racial, national ethnic, cultural, religious, gender.. .,
enforced disappearance, apartheid, and other inhumane acts.
a.
Although arguably customary international law no longer requires it, traditionally, there had to be a link between crimes against humanity and an armed conflict, however, the ICC Statute does not specifically require such a nexus.

b.
However, jurisdiction exits only where the “attacks” are “widespread or systematic.” This language suggests that there must be something akin to an armed conflict or at least a large-scale governmental abuse.

3.     War Crimes. For the purposes of the ICC, war crimes means:
a. In the case of an International Armed Conflict:
(1)Grave Breaches of the Geneva Conventions.
(2)
Serious violations of the Laws and Customs of War applicable in international armed conflict. The statute lists what it considers to be serious violations.

b.
In the case of an Internal Armed Conflict:

(1)Violations of Common Article 3.
(2)Other violations of the laws and customs of war “applicable .. . within the established framework of international law.”
(a) The Statue provides a laundry list of these crimes from various treaties.
(b)It also criminalizes the attack of personnel, equipment, installations, or vehicles involved with a UN peacekeeping or humanitarian mission.
(c) Recognizes that the Statute does not apply to situations of mere internal disturbances and tensions that do not rise to the level of a Common Article 3 conflict.
4. Crime of Aggression. Article 5(2) states that the ICC will have jurisdiction over the crime of aggression after a provision is adopted defining the crime and setting out the conditions under which the ICC will exercise this jurisdiction.
F. Common Article 3 of the Four Geneva Conventions.     Minimum standards that Parties to a conflict are bound to apply, in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting parties. Nothing in Common Article 3 discusses individual criminal liability.
1.
ICTY has held that prosecutions for violations of Common Article 3 can be brought in international as well as internal armed conflicts.

2.
The International Criminal Court statute provides for prosecution of violations of Common Article 3 in non-international armed conflicts. See Rome Statute, article 8(c).

3.
18 U.S.C. $2441 now permits prosecutions for violations of Common Article 3 in the U.S. federal court system.

G. Genocide. In 1948, the U.N. General Assembly defined this crime to consist of killing and other acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, “whether committed in time of peace or in time of war.” Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 11, 1948, art. 2, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). U.S. ratification was given advice and consent by Senate in the Genocide Convention Implementation (Proxmire) Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045 (codified at 18 U.S.C. 3 1091).
H. Other Treaties. Violations of treaties to which the United States is a party also create bases for criminal liability. For example, the 1993 Chemical Weapons Convention and the 1980 Conventional Weapons Convention.
I.     Conspiracy, Incitement, Attempts, and Complicity. International law allows for punishment of these forms of crime. GPW, art. 129 (subjecting to penal sanctions “persons alleged to have committed, or to have ordered to be committed” serious war crimes) (emphasis added); Allied Control Council Law No. 10, art. 11, para. 2, Dec. 20, 1945, reprinted in 1 TRIALS OF WAR CRIMINALS 16; S. C. Res. 827, U.N. SCOR, U.N. DOC. S/RES/827 (1993), art.7; S. C. Res. 955, U.N. SCOR, U.N.DOC S/RES/955, art. 6; FM 27-10, 500.
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J.     Distinctives of Crimes against Humanity:
1.     General Requirements of Crimes against Humanity:
a.     There is an “attack.” This is distinct from any ongoing armed conflict. An attack for these purposes does not require an ongoing internal or international armed conflict but may be conducted by a regime against its own people. This differs from the original definition in Article 6(c) of the Nuremburg Charter that required a nexus to an armed conflict and reflects a change in customary international law. See Antonio Cassese, Crimes Against Humanity, in Cassese, Gaeta and Jones, eds., THE ROME STATUTE OF THE INTERNATIONAL COURT, 1, at 356.
CRIMINAL ~01.
b.
There is a nexus between that attack and the act(s) of the accused. Requires an act by the defendant, which by its nature or consequences is liable to further the attack AND the defendant knows that there is this broader attack and helshe is part of it.

c.
The attack is directed against any civilian population. The subject civilian population must be the primary object of the attack and not just an incidental victim. This element addresses the broader attack, not the immediate victim of the defendant’s action. “Any” denotes the need to identify some characteristic used to distinguish this group, i.e. a trait or location, from a more general population. This may be limited as in the ICTR Statute (only national, political, ethnic, racial, or religious discrimination), however, with the exception of persecution there is no specific discriminatory intent required. The idea of “population” requires more than just an isolated or random act against a few individuals. .

d.
The attack is systematic or widespread. This addresses the larger scale of the attack, i.e. the number of victims or the organized nature of the acts.

e.
The defendant must know of the attack and that hisher acts are part of that attack or may further that attack. This is the key mens rea element that distinguishes Crimes Against Humanity.

In addition to these general requirements, there must be a foundational crime, likely to be identified in the courts statute, i.e. murder, enslavement, deportation, torture, rape, etc.
3.
The idea that the offense is a “crime against humanity” derives from the notion that the act injures not just the victim(s), but tears at the fabric of what it means to be human.

4.
Differs from war crimes because:

a.
War crimes require an armed conflict whereas Crimes Against Humanity do not.

b.
War crimes do not require a connection to a widespread or systematic attack.

c.
War crimes are a broader category of offenses, some of which could be the underlying foundational offense for a Crime Against Humanity. Note that the additional element to prove a crime against humanity overcomes problems of multiplicious charging for a single act.

5.     Differs from Genocide because:
a.
Mens rea element in genocide requires intent to destroy all or part of a group, while Crimes Against Humanity does not.

b.
Genocide does not require proof of a widespread or systematic attack. It could actually be the acts of one person with requisite intent.

c.
Victims of Genocide can be anyone, however, Crimes Against Humanity must be committed against a civilian population.

d.
Genocide must be based upon national, ethnic, racial or religious identity and Crimes Against Humanity address broader categories.

6.     “Hermann Goering was a criminal against humanity, but so was the unremarkable German citizen who denounced his Jewish neighbor to the Gestapo, knowing what his neighbor’s fate would be.”
See Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the
International Criminal Tribunals for The Former Yugoslavia and for Rwanda,
43 HARV.INT’LL.J. 237 (2002).
K. Defenses in a War Crimes Prosecution. Not well settled based upon the competing interests of criminal law principles and the seriousness of protecting victims from war crimes, crimes against humanity, etc. Defenses available will
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Chapter 8
War Crirnes clnd Cornmcmd Responsibilit,~

be specifically established in the court’s constituting documents (although an argument from customary international law is always open as a possibility for a zealous defense counsel).
1.
Official Capacity or Head of State Immunity. While historically this was a possible defense rooted in sovereign immunity, current jurisprudence indicates that it is likely no longer available.

2.
Superior Orders. Generally, it is only a possible defense if the defendant was required to obey the order, the defendant did not know it was unlawful and the order was not manifestly unlawful.

3.
Duress. May be available as a defense, however, it may also only be taken into account as a mitigating factor depending on the specific law governing the court. For example, the ICTY and ICTR only allow duress to be considered as a mitigating factor and not as a full defense. In general, duress requires that the act charged was done under an immediate threat of severe and irreparable harm to life or limb, there was no adequate means to avert the act, the actlcrime committed was not disproportionate to the evil threatened (crime committed is the lesser of two evils), and the situation must not have been brought on voluntarily by the defendant (i.e. did not join a unit known to commit such crimes routinely).

4.
Lack of Mental Responsibility. Not clearly defined in customary international law. Possibly available if the defendant, due to mental disease or defect, did not know the nature and quality of the criminal act or was unable to control histher conduct.

IV.     COMMAND RESPONSIBILITY FOR THE CRIMINAL ACTS OF SUBORDINATES
A. Commanders may be held liable for the criminal acts of their subordinates even if the commander did not personally participate in the underlying offenses if certain criteria are met. Where the doctrine is applicable, the commander is accountable as if he or she was a principal.
B. As with other customary international law theories of criminal liability, the doctrine dates back almost to the beginning of organized professional armies. In his classical military treatise, Sun Tzu explained that the failure of troops in the field cannot be linked to “natural causes,” but rather to poor leadership. International recognition of the concept of holding commanders liable for the criminal acts of their subordinates occurred as early as 1474with the trial of
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Clrupter 8 ~J’LZ~Crimes anti Conznzund Responsibility
Peter of Hagenbach. William H. Parks, Command Responsibility for War Crimes, 62 MIL L. REV. 1 (1973).
C. A commander is not strictly liable for all offenses committed by subordinates. The commander’s personal dereliction must have contributed to or failed to prevent the offense. Japanese Army General Tomoyuki Yamashita was convicted and sentenced to hang for war crimes committed by his soldiers in the Philippines. Although there was no evidence of his direct participation in the crimes, the Military Tribunal determined that the violations were so widespread in terms of time and area, that the General either must have secretly ordered their commission or failed in his duty to discover and control them. Most commentators have concluded that Yamashita stands for the proposition that where a commander knew or should have known that his subordinates were involved in war crimes, the commander may be liable if he or she did not take reasonable and necessary action to prevent the crimes. US v. Tomoyuki Yamashita, Military Commission Appointed by Paragraph 24, Special Orders 110, Headquarters United States Army Forces Western Pacific, 1 Oct. 1945. William H. Parks, Command Responsibility For War Crimes, 62 MIL L. REV. 1 (1973).
D. Two cases prosecuted in Germany after WWII hrther helped to define the doctrine of command responsibility.
1.
In the High Command case, the prosecution tried to argue a strict liability standard. The court rejected this, however, and stated: “Military subordination is a comprehensive but not conclusive factor in fixing criminal responsibility . . .A high commander cannot keep completely informed of the details of military operations of subordinates . . .He has the right to assume that details entrusted to responsible subordinates will be legally executed . . .There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations.”

2.
The court in the Hostage Case found that knowledge might be presumed where reports of criminal activity are generated for the relevant commander and received by that commander’s headquarters.

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Chapter 8 War Crimes trnd Corn~nand Resporzsibi1il.v
E.     Protocol I, art. 86. Represents the first attempt to codify the customary doctrine of command responsibility. The mens rea requirement for command responsibility is “knew, or had information, which should have enabled them to conclude” that war crimes were being committed and “did not take all feasible measures within their power to prevent or repress the breach.”
F.     The International Criminal Tribunals for the Former Yugoslavia & Rwanda.
1.
“Individual Criminal Responsibility: The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” ICTY Statute, art. 7(3); ICTR Statute, art. 6(3).

2.
In ICTR, the doctrine of superior responsibility is used in numerous indictments, for example those against Theoneste Bagosora (assumed official and defacto control of military and political affairs in Rwanda during the 1994genocide) and Jean Paul Akayesu (bourgmestre (mayor), responsible for executive functions and maintenance of public order within his commune), high-ranking civilian officials in the Rwandan national and local governments, respectively.

3.
In ICTY, the doctrine of command responsibility is used in numerous indictments, to include those against Slobodan Milosevic (President of the FRY) (See Appendix), Radovan Karadzic (as founding member and President of Serbian Democratic Party) and Gen. Ratko Mladic (Commander of JNA Bosnian Serb Army).

G. The International Criminal Court establishes its definition of the requirements for the responsibility of Commanders and other superiors in Article 28 of the Rome Statute. Note that it denotes the responsibility for military commanders and those functioning as such (subparagraph a) differently from other superiors,
i.e. civilian leaders (subparagraph b).
1.     Subparagraph a states: “A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
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Chczpter 8 Wur C~*in~es
anti Command Responszbililj~
a.
That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

b.
That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

2.     Subparagraph b states: “With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
a.
The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

b.
The crimes concerned activities that were within the effective responsibility and control of the superior; and

c.
The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

H.
Prosecution of command responsibility cases in the U.S. Military.

1.
It is U.S. Anny Policy that soldiers be tried in courts-martial rather than international forums. FM 27-1 0, para. 507.

2.
No separate crime of command responsibility or theory of fiability, such as conspiracy, for command responsibility in UCMJ. For a discussion of this and some proposed changes, see Michael L. Smidt, Yamashita, Medina and Beyond: Command Responsibility in Contemporary Military Operations, 164 MIL.L. REV. 155 (2000).

3.
UCMJ, art. 77, Principals. For a person to be held liable for the criminal acts of others, the non-participant must share in the perpetrators purpose of design, and “assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist.. ..” Where a person has a duty to act, such as a security guard, inaction alone may create liability. However, Art.

220
Chupler 8
War Crirnes cmd Cornrnclnd Responsibilit?,

77 suggests that actual knowledge, not a lack of knowledge due to negligence, is required.
a.
At the court-martial of Captain Medina for his alleged participation in the My Lai incident in Vietnam, the military judge instructed the panel that they would have to find that Medina, the company commander, had actual knowledge in order to hold him criminally liable for the massacre. There was not enough evidence to convict Captain Medina using that standards and he was acquitted of the charges.

b.
Accordingly, it appears that in domestic courts-martial, a prosecutor must establish actual knowledge on the part of the accused. See USv. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973); USv.Medina, C.M. 427162

(A.C.M.R.
1971).

c.
Army Policy. “The commander is responsible if he ordered the commission of the crime, has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.” FM 27-10,T 501; see also TC 27-10-3 at 19-21.

V. FORUMS FOR THE PROSECUTION OF WAR CRIMES
A. International v. Domestic Crimes
1.
Built on the concept of national sovereignty, jurisdiction traditionally follows territoriality or nationality.

2.
In war crimes prosecutions, the veil of sovereignty is pierced.

3.
Universal international jurisdiction first appeared in Piracy cases where the goal was to protect trade and commerce on the high seas, an area generally believed to be without jurisdiction.

4.
Universal jurisdiction in war crimes first came into being in the days of chivalry where the warrior class asserted its right to punish knights that had violated the honor of the profession of arms irrespective of nationality or location. The principle purpose of the law of war eventually became humanitarianism. The international community argued that crimes against “God and man” transcended the notion of sovereignty.

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Clrcpter 8 Wi~rCrimes and C’omrncmd Responsibilily
B. Current International Jurisdictional Bases.
1.
International Criminal Court.

2.
Ad hoc tribunal under the authority of UN Charter (ICTY or ICTR) or separate treaty (Sierra Leone).

3.
Some states claim universal jurisdiction over all war crimes despite the lack of any nexus to the alleged crime.

a.
Belgium passed a law in 1993 invoking universal jurisdiction over any war crimes which did not require either complainants or accused to have a connection to Belgium. After successfully trying four cases from Rwanda, many complaints were filed with the courts. The statute was amended in April 2003 to state that mandatory investigation could begin only if the complaint had a direct link to Belgium. The statute was further revised effective August 1,2003 when the previous statute was repealed and pending complaints nullified. (repeal and nullification upheld by the Belgian Supreme Court in September 2003).

C.
Domestic Jurisdictional Bases. Each nation provides its own jurisdiction.     The following is the current U.S. structure.

1. General Courts-Martial.
a.
In addition to the jurisdiction to try U.S. service members, the military may try by general court-martial anyone subject to trial for violations of the law of war. UCMJ, art. 18.

b.
If there is a declared war, then civilians accompanying U.S. forces may be prosecuted in the same forum as U.S. soldiers. See UCMJ, art. 2(a)(10). UCMJ jurisdiction, both personal and substantive, over civilians accompanying the force exists only during “time of war.” This time of war qualifier has been interpreted to require an actual declaration of war. USv. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363 (1970).

2. The War Crimes Act of 1996 (18 U.S.C. $2441) (amended in 1997). Authorizes the prosecution of individuals in federal court if the victim or the perpetrator is a US national (as defined in the Immigration and Nationality Act) or member of the armed forces of the US, whether inside or outside the US. Jurisdiction attaches if the accused commits:
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Chupter 8 Var Crimes trnd Commtmci Responsibilitv
a.
A Grave Breach of the 1949 Geneva Conventions.

b.
Violations of certain listed articles of the Hague Conventions.

c.
Violations of Common Article 3 of the Geneva Conventions, and of Protocol I or Protocol I1 of the Geneva Conventions when and if the US becomes parties to either of the Protocols.

d.
Violations of Protocol I1 to the Amended Conventional Weapons Treaty.

D.
Military Commissions.

1.
Military commissions, tribunals, or provost courts may try individuals for violations of the law of war. UCMJ, art. 21. This jurisdiction is concurrent with that of a general court-martial.

2.
Historical use can be traced back to Gustavus Adolphus and his use of a board of officers to hear law of war violations and make recommendations on their resolution. Frequent use in British military history, which was incorporated into the U.S. Military from its beginning. Used first in U.S. to try Major John Andre for spying in conjunction with General Benedict Arnold. Later used by then General Andrew Jackson after the Battle for New Orleans in 18 15, and again during the Seminole War and the Mexican- American War. Used extensively in Civil War to deal with people hostile to Union forces in “occupied” territories. Their used continued in all subsequent conflicts and culminated in World War I1 where military commissions prosecuted war crimes both in the United States and extensively overseas. Such use places the legitimacy of military commissions to try persons for war crimes firmly in customary international law.

3.
Constitutional Authority. “Congress and the President, like the courts, possess no power not derived from the Constitution.” Ex Parte Quirin,317

U.S.
1,25 (1942).

a.
Congressional authority to create military commissions derived from Article I, section 8, clauses 1, 10, 1 1, 14 and 18. Especially relevant is clause 10, which grants authority to define and punish . .. offenses against the Law of Nations.”

b.
Presidential authority is derived from Article 11, section 2, clause 1 (powers as Commander in Chief).

c.
Confirmed by the Supreme Court in Exparte Quirin, In re Yamashita, and Madsen v. Kinsella. The first two recognized the dual authority of the Congress and President, while the third concluded that absent congressional action to the contrary, the President has authority as the Commander in Chief to create military commissions.

4.     Types of Military Commissions. A key distinguishing factor regarding not only jurisdictional basis, but also crimes that may be tried and who is subject to trial by military commission is determining which type of military commission is at issue.
a.
Martial Law Courts, when used within the U.S. or its territories when replacing the civil government.

b.
Military Government Courts, when used outside of the U.S. (or within the

U.S.
in rebel territory during the Civil War) in lieu of the civil government.

c.
War Courts, when used by a military commander for the purpose of trying someone for violations of the law of war.

5.     Limitations on Jurisdiction based on Location.
a.
Historically, offenses within a military commission’s jurisdiction (when sitting as a Military Government Court or a War Court) must have been committed (1) within a theater of war, (2) within the territory controlled by the commander ordering the trial, and (3) during a time of war.

b.
In the Civil War, all three types of military commissions were used extensively, especially after Lincoln’s 1862 declaration of a state of martial law throughout the country. Some thought the expansive use authorizing the trial of U.S. citizens outside of a zone of occupation or insurrection was not proper, while others accepted this stating the entire country was within a theater of war. In Exparte Milligan,71 U.S. (4 Wall.) 2 (1866), the Supreme Court limited the jurisdiction to areas under valid martial law or occupation, thus commissions were still valid in the occupied South.

c.
World War I1 saw the next extensive use and due to the global nature of the war, the “theater of war” requirement lost much relevance. For example, in Quirin, neither the trial nor the defendants’ crimes were

224
Chuptev 8 War Crimes (2nd Cornm~lnd Responsibili~v
committed in the theater of war as traditionally defined; yet the Supreme Court said the military commission had jurisdiction because the crime was committed when the defendants passed through the U.S. military lines and remained in the U.S. (U.S. briefing argued that the global nature of the war put “every foot of this country within the theater of war.”).
6. Limitations on Jurisdiction based on the Person.
a. U.S. citizens.
(1)Military commissions lack jurisdiction to try U.S. civilians when the civil courts are still open. This does not apply to areas under valid martial law or areas in rebellion; however, these circumstances will be extremely limited, even during a state of war. See Exparte Milligan and Duncan v. Kahanamoku, 327 U.S. 304 (1 946).
(2)Military commissions acting as a Military Government Court may try
U.S. citizens for violations in an occupied territory. Madsen v. Kinsella, 343 U.S. 341 (1952).
(3)Military Commissions (sitting as a War Court) may try U.S. citizens who engage in belligerent acts against the U.S. for war crimes. Quirin, 3 17 U.S. at 37 (“Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.”).
b. Foreign Nationals.
(1)During international armed conflict, under Geneva Convention 111, articles 84, 85, and 102, the U.S. can only use military commissions to try prisoners of war if they are also used to try U.S. military personnel. The U.S. does not currently use military commissions to try U.S. service members.
(2)Dwing international armed conflict, Geneva Convention IV, articles 64,66 and 70 authorize, but place some restrictions on, the use of military commissions to try protected civilians in occupied territories.
(3)Habeas Corpus Issues.
Chapter 8 PVar Crimes urd Lbwrrnund Rrsponsibility
(a) May have access to U.S. court review based on territorial jurisdiction, i.e. the crimes, trial or confinement are in the U.S. or its territories.
(b)Will not have access to habeas review if they are nonresident enemy aliens whose crimes, trial, and confinement are all outside of the U.S. or its territories. Johnson v. Eisentrager, 339 U.S. 763 (1950).
7.
Absent action by the President pursuant to art. 36, UCMJ, to set rules and procedures, and in the absence of applicable international law, military commissions “shall be guided by the appropriate principles of law and rules of procedure and evidence prescribed for courts-martial.” MCM, pt. I, &

2(b)(2).

8.
In theory, could provide very limited evidentiary and procedural formality; see e.g, Yamashita, 327 US 18, and a very streamlined appeal process. See Johnson v. Eisentrager, 339 US. 763 (1950).

9.
International treaty obligations, however, may provide a floor of procedural rights. See Geneva Convention 111 and the International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171 (to which the U.S. is a party). See also HOWARD S. LEVIE, PRISONERS

OF WARIN INTERNATIONAL ARMEDCONFLICT
321 n. 29, 335 n. 98, 383 (1976); IV Pictet at 413-14; 2 Final Record of the Di~lomatic Conference of Geneva of 1949 389-90; JOHN
N. MOORE,ET. AL., NATIONAL LAW 373 (1990).
SECURITY
VI. CONCLUSION
Chapter 8 War Crimes clnd C’ornrrumd Respor~siOilr~v
a party to the Rome Statute of the International Criminal Court. This morning, at the instruction of the President, our mission to the United Nations notified the UN Secretary General in his capacity as the depository for the Rome Statute of the President’s decision. These actions are consistent with the Vienna Convention on the Law of Treaties.
The decision to take this rare but not unprecedented act was not arrived at lightly. But after years of working to fix this flawed statute, and having our constructive proposals rebuffed, it is our only
alternative.
Historical Perspective
Like many of the nations that gathered in Rome in 1998 for the negotiations to create a permanent International Criminal Court, the United States arrived with the firm belief that those who perpetrate genocide, crimes against humanity, and war crimes must be held accountable -and that horrendous deeds must not go unpunished.
The United States has been a world leader in promoting the rule of law. From our pioneering leadership in the creation of tribunals in Nuremberg, the Far East, and the International Criminal Tribunals for the former Yugoslavia and Rwanda, the United States has been in the forefront of promoting international justice. We believed that a properly created court could be a useful tool in promoting human rights and holding the perpetrators of the worst violations accountable before the world -and perhaps one day such a court will come into being.
A Flawed Outcome
But the International Criminal Court that emerged from the Rome negotiations, and which will begin functioning on July 1 will not effectively advance these worthy goals.
First, we believe the ICC is an institution of unchecked power. In the United States, our system of government is founded on the principle that, in the words of John Adams, “power must never be trusted without a check.” Unchecked power, our founders understood, is open to abuse, even with the good intentions of those who establish it.
But in the rush to create a powerful and independent court in Rome, there was a refusal to constrain the Court’s powers in any meaningful way. Proposals put forward by the United States to place what we believed were proper checks and balances on the Court were rejected. In the end, despite the best efforts of the U.S. delegation, the final treaty had so many defects that the United States simply could not vote for it.
Take one example: the role of the UN Security Council. Under the UN Charter, the UN Security Council has primary responsibility for maintaining international peace and security. But the Rome Treaty removes this existing system of checks and balances, and places enormous unchecked power in the hands of the ICC prosecutor and judges. The treaty created a self-initiating prosecutor, answerable to no state or institution other than the Court itself.
In Rome, the United States said that placing this kind of unchecked power in the hands of the
228
Chupter 8 Wuv Criines (milCornrnand Responsibili(v
prosecutor would lead to controversy, politicized prosecutions, and confusion. Instead, the US. argued that the Security Council should maintain-its responsibility to check any possible excesses of the ICC prosecutor. Our arguments were rejected; the role of the Security Council was usurped.
Second, the treaty approved in Rome dilutes the authority of the UN Security Council and departs from the system that the framers of the UN Charter envisioned.
The treaty creates an as-yet-to-be defined crime of “aggression,” and again empowers the court to decide on this matter and lets the prosecutor investigate and prosecute this undefined crime. This was done despite the fact that the UN Charter empowers only the Security Council to decide when a state has committed an act of aggression. Yet the ICC, free of any oversight from the Security Council, could make this judgment.
Third, the treaty threatens the sovereignty of the United States. The Court, as constituted today, claims the authority to detain and try American citizens, even though our democratically-elected representatives have not agreed to be bound by the treaty. While sovereign nations have the authority to’try non-citizens who have committed crimes against their citizens or in their territory, the United States has never recognized the right of an international organization to do so absent consent or a UN Security Council mandate.
Fourth, the current structure of the International Criminal Court undermines the democratic rights of our people and could erode the fundamental elements of the United Nations Charter, specifically the right to self defense.
With the ICC prosecutor and judges presuming to sit in judgment of the security decisions of States without their assent, the ICC could have a chilling effect on the willingness of States to project power in defense of their moral and security interests.
This power must sometimes be projected. The principled projection of force by the world’s democracies is critical to protecting human rights -to stopping genocide or changing regimes like the Taliban, which abuse their people and promote terror against the world.
Fifth, we believe that by putting US. officials, and our men and women in uniform, at risk of politicized prosecutions, the ICC will complicate US. military cooperation with many friends and allies who will now have a treaty obligation to hand over U.S. nationals to the Court -even over
U.S. objections.
The United States has a unique role and responsibility to help preserve international peace and security. At any given time, U.S. forces are located in close to 100 nations around the world conducting peacekeeping and humanitarian operations and fighting inhumanity.
We must ensure that our soldiers and government officials are not exposed to the prospect of politicized prosecutions and investigations. Our President is committed to a robust American engagement in the world to defend freedom and defeat terror; we cannot permit the ICC to disrupt that vital mission.
Chapter 8 Wur Crimes and Commund Krspotzsibility
Our Efforts
The President did not take his decision lightly.
After the United States voted against the treaty in Rome, the US. remained committed and
engaged-working for two years to help shape the court and to seek the necessary safeguards to prevent a politicization of the process. U.S. officials negotiated to address many of the concerns we
saw in hopes of salvaging the treaty. The U.S. brought international law experts to the preparatory
commissions and took a leadership role in drafting the elements of crimes and the procedures for the
operation of the court.
While we were able to make some improvements during our active participation in the UN Preparatory Commission meetings in New York, we were ultimately unable obtain the remedies necessary to overcome our fundamental concerns.
On December 3 1,2000, the previous administration signed the Rome Treaty. In signing President
Clinton reiterated “our concerns about the significant flaws in the treaty,” but hoped the US. signature would provide us influence in the future and assist our effort to fix this treaty. Unfortunately, this did not prove to be the case.
On April 11,2002, the ICC was ratified by enough countries to bring it into force on July 1 of this year. Now we find ourselves at the end of the process. Today, the treaty contains the same significant flaws President Clinton highlighted.
Our Philosophy
While we oppose the ICC we share a common goal with its supporters -the promotion of the rule of law. Our differences are in approach and philosophy. In order for the rule of law to have true meaning, societies must accept their responsibilities and be able to direct their future and come to terms with their past. An unchecked international body should not be able to interfere in this delicate process.
For example: When a society makes the transition from oppression to democracy, their new government must face their collective past. The state should be allowed to choose the method. The government should decide whether to prosecute or seek national reconciliation. This decision should not be made by the ICC.
If the state chooses as a result of a democratic and legal process not to prosecute fully, and instead to grant conditional amnesty, as was done in difficult case of South Africa, this democratic decision should be respected.
Whenever a state accepts the challenges and responsibilities associated with enforcing the rule of law, the rule of law is strengthened and a barrier to impunity is erected. It is this barrier that will create the lasting goals the ICC seeks to attain. This responsibility should not be taken away from states.
230
Choprev 8 War Crirnes rind Cornrnrrnd Responsibililj
2173 Celebici Appeals Judgement, para. 238. Information available to the superior which can provide the requisite notice includes, for example, reports addressed to the superior, the tactical situation, and the training. instruction and character traits of subordinate officers and troops. Celebici Appeals Judgement, para. 238,
IT-02-54-T
Necessary and Reasonable Measures 1027.A superior must take “necessary and reasonable measures” to satisfy his or her obligation to prevent offences or punish offenders under Article 7(3).2174 The adequacy of these measures is commensurate with the material ability of a superior to prevent or punish.2 175 Insofar as a superior is in effective control, therefore, he or she must exercise whatever ability he or she has to prevent crimes or punish perpetrators.
1028. The Trial Chamber should consider the accused’s “actual ability or effective capacity” to take action, rather than his legal or formal authority.2176 “A superior is not obliged to perform the impossible[;] [hlowever, the superior has a duty to exercise the powers he has within the confines of those limitations”.2177 The duty to prevent or to punish “includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himselY.2 178 Whether the accused’s effort to prevent or punish the crimes committed by subordinates rises to the level of “necessary and reasonable measures” is for the Trial Chamber to evaluate under the facts of the particular case.2179
1029. The obligation to prevent “or” to punish “does not provide the accused with two alternative and equally satisfying options7′.21 80 If the accused failed to prevent crimes he knew or had reason to know were about to happen, “he cannot make up for the failure to act by punishing the subordinates afterwards”.218 1 Similarly, an accused who lacked the opportunity to prevent crimes by assuming command after they were committed by subordinates would not be excused from the duty to punish.2182
PERTINENT ARTICLE FROM THE ICTY STATUTE:
Article 7
Individual criminal responsibility

I. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
2.
The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3.
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4.
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Chapter 8 Wur Crimes und Corrirnund Responsibility
NOTES

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NOTES

NOTES

Chapter 8
War Crirnes t-md C(1rnmandResponsibi1it.v

THE LAW OF’ WAR AND MILITARY OPEMTIONS OTHER THAN WAR
REFERENCES
1.     Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277,205 Consol. T.S. 277, including the regulations thereto [hereinafter

H.IV or HR].
2.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug
12, 1949,6 U.S.T. 3316,75 U.N.T.S. 135 bereinafter GC].

3.
The 1977 Protocols Additional to the Geneva Conventions of 1949, Dec 12, 1977, 16

I.L.M. 1391 [hereinafter GP I & 111.
4.
The 1954 Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, May 14, 1954,249 U.N.T.S. 216 [hereinafter 1954 Cultural Property
Conv.].

5.
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956)
[hereinafter DA PAM 27-11.

6.
Dept. of Army, Pamphlet 27-1 -1, Protocols To The Geneva Conventions of 12 August
1949 (1 September 1979) bereinafter DA PAM 27-1 -11.

7.
Dept. of Army, Pamphlet 27-161-2, Intemational Law, Volume I1 (23 October 1962)
[hereinafter DA PAM 27-161 -21.

8.
Dept. of Army, Field Manual 27-10, The Law of Land Warfare (18 July 1956) [hereinafter FM 27-10].

9.
Dept. of Army, Field Manual 41-10, Civil Affairs Operations (1 1 January 1993)
[hereinafter FM 4 1 -101.

10.
Dept. of Army, Regulation 190-57, Civilian Internee–Administration, Employment, and Compensation (4 March 1987) [hereinafter AR 190-571.

11.
Jean S. Pictet, Commentary To Geneva Convention IV Relative To The Protection Of
Civilian Persons In Time Of War (1958) [hereinafter Pictet].

12.
Yves Sandoz, Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (1 987) bereinafter Protocols Commentary].

13.
Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts, A Collection of
Conventions, Resolutions and Other Documents (2d ed. 1988).

14.
Gerhard von Glahn, Law Among Nations (1992).

15.
L. Oppenheim, Intemational Law (7th ed., H. Lauterpacht, 1955) [hereinafter
Oppenheim].

16.
Universal Declaration of Human Rights, G.A. res. 217 A(III), December 10, 1948, U.N.
Doc. N810, at 71 (1948).

Chuptrr 9 Law of Wur und IZfOOTW
17.
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), December 16,1966,21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A16316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.

18.
Frank Newrnan and David Weissbrodt, International Human Rights (1996).

19.
Frank Newrnan and David Weissbrodt, Selected International Human Rights Instruments (1996).

20.
U.N. Charter.

I. INTRODUCTION.
A. Military Operations Other than War (MOOTW).
1. MOOTW encompass a wide range of activities where the military instrument of national power is used for purposes other than the large-scale combat operations usually associated with war. Doctrine for Joint Operations, Joint Pub 3.0 (Feb 1995) Fereinafter JP 3.01. See also, Dep’t of Army, Field Manual 100-5, Operations (14 June 1993) [hereinafter FM 100-51. While there are various types of MOOTW (see FM 100-5), peace operations have spawned the majority of law of war related issues.
B. Law of War.
1. Traditional law of war regimes do not technically apply to MOOTW Examples include the following:
a.     Operation Just Cause (Panama): “Inasmuch as there was a regularly constituted government in Panama in the course of JUST CAUSE, and
U.S.
forces were deployed in support of that government, the Geneva Conventions did not apply …nor did the U.S. at any time assume the role of an occupying power as that term is used in the Geneva Conventions.” Memorandum from W. Hays Parks to the Judge Advocate General of the Army of 10/1/90.

b.
Operation Restore Hope (Somalia): The 1949 Geneva Conventions do not apply because an international “armed conflict” does not exist.” Operation Restore Hope After Action Report, Office of the Staff Judge, Unified Task Force Somalia (12 Apr 1993).

c.
Operation Uphold Democracy (Haiti): “The mandate of the MNF in Haiti was not military victory or occupation of hostile territory; rather it was “to establish and maintain a secure and stable environment ….” Moreover,

Chapter 9 Law of War and A4OOTW
the Carter-Jonassaint agreement -and the Aristide government’s assent to that agreement -resulted in an entry that was based on consent and not hostilities between nations. Under these circumstances, the treaties and customary legal rules constituting the law of armed conflict do not strictly apply. LAWAND MILITARY IN HAITI, 1994
OPERATIONS -1995: LESSONS LEARNEDFOR JUDGEADVOCATES,
Center for Law and Military Operations 47 (1 1 December 1995) (quoting Theodore Meron, Extraterritoriality ofHuman Rights Treaties, 89 Am. J. Int’l L. 78-82 (1995)).
d. Operation Joint Endeavor (Bosnia-Herzegovina). In preparation to deploy to Bosnia, the commanders of the lStArmored Division spent a great deal of time preparing to meet the civilian challenge “posed by stability operations . . .those operations that exist outside the scope of armed conflict, but place soldiers in situations where they must simultaneously act to protect civilians and protect themselves from civilians.” See Jim Tice, The Busiest Major Command, Army Times, Oct. 30, 1995, at 22-23.
2. Although not falling under the rubric of “international armed conflict,” MOOTW consistently involve the potential, if not actual, employment of military force. This “disconnect” mandates that JA’s search for legal standards to guide the treatment of traditional victims of conflict, e.g. wounded, detainees, and civilians.
a.     This search begins with Dep’t of Def. Directive 5100.77, DOD Law of War Program, (9 December 1998), which establishes the POLICY that
“[Tlhe Armed Forces of the United States shall comply with the law
of war in the conduct of military operations and related activities in
armed conflict, however such conflicts are characterized.” (The
United Nations employs a similar standard to guide the actions of
personnel deployed on its operations, discussed infua).
b.
Because in many cases US. forces simply do not have the resources to fully comply with all the requirements of the law of war, this policy has been interpreted to require U.S. forces “to apply the provisions of those treaties [the Geneva Conventions] to the extent practicable and feasible.”

W.
Hays Parks memorandum, supra.

3.     Recent MOOTW demonstrate that compliance with such a policy still results in “gaps” for the JA looking for standards of treatment for the various individuals encountered during such operations. What follows is a discussion of the legal standards, both international and domestic, applicable
241
Chapter 9 Ltw of War und ILlOOTlV
either expressly or by analogy to the treatment of civilians, detainees, and the sick and wounded during MOOTW.
11. THE IMPACT OF THE NATURE OF OPERATIONS.
A. THE: CONFLICT SPECTRUM. Contemporary military operations cover a broad spectrum of “hostilities.”
1.
At one extreme is invasion, MOOTW cover the rest of the spectrum, from “coerced invitation” to port calls.

2.
Applicability of specific LOW Conventions is, as a result of the TRIGGERING ARTICLES of these Conventions, contingent on the nature of any given operation.

a.     INTERNATIONAL ARMED CONELICT. According to Common Article 2 of the four Geneva Conventions, any contention between states leading to the intervention of armed force satisfies the definition of international armed conflict.
(l)cLInternationalArmed Conflict” is the TECHNICAL TRIGGER for application of the LOW.
(2)This is an extremely broad definition, intended to ensure expansive application of humanitarian law.
b. UNCOERCED INVITATION. If the armed forces of one country enter another country by truly voluntary invitation, the LOW is TECHNICALLY not triggered. As a matter of Public International Law, host nation law normally governs the conduct of the visiting armed force during such operations.
(l)U.S. practice is to employ SOFAS as a mechanism for ensuring application of host nation law does not operate to the detriment of U.S. forces.
(2)
There is no legal requirement for the application of the LOW to such situations.

c.
MOOTW (Coerced Invitation?). Many MOOTW are found at the center of the CONFLICT SPECTRUM.

Chapter 9 Law of Wm and h1OOTW
(l)U.S. forces enter the host nation without invitation, but under some color of authority that serves to remove the operation from the realm of “international armed conflict.” [e.g.a Chapter VI Peacekeeping mission].
(2)Although such operations involve the risk, and often the reality, of hostilities between U.S. forces and host nation forces, the purported authority underlying the presence of U.S. forces removes the dispute element of the “international armed conflict” definition.
(3)This situation results in a vacuum of legal authority governing the conduct of U.S. forces in such situations.
(a) The “semi-permissive” nature of the operation acts to displace host nation law;
(b)The lack of a “dispute between states” acts to prevent triggering of the LOW.
(4)This vacuum of legal authority is not accompanied by a coordinate absence of legal issues facing the force.
(a)MOOTW have consistently involved substantial legal issues which, if present in the context of an international armed conflict, would be resolved by application of the LOW.
(b)These issues generally fall under the same categories as legal issues related to traditional military operations:
(i)
Targeting;

(ii)
Treatment of captured personnel;

(iii) Treatment of civilians;
(iv)
Treatment of the wounded and sick.

B.
There is a natural tension between the law and policy which dictate the justification for a military operation and the legal standards which we apply in the context of the operations.

1. Public International Law governs the conduct of states vis-d-vis other states, while . . ,
Chapter 9
Law oj-War und MOOTW
2.
The Law of War governs the conduct of combatants in warfare and provides protections for the victims of war.

3.
The result of this tension, or conflict of purpose, is that the Law of War (because of its truly humanitarian purpose) becomes a default position, or guide, for our conduct.

111. THE ANALYTICAL RESPONSE
A. The JA must craft resolutions to these legal issues using systematic and
innovative analytical approach based on an amalgamation of four primary
sources of law.

1.
Fundamental Human Rights under International Law;

2.
Host Nation Law;

3.
Conventional Law -Treaty Law agreed upon by states (specific protections for specific individuals); and

4.
Domestic Law and Policy (including extension “by analogy” of other sources of law not technically applicable).

IV.
MOOTW AND TARGETING ISSUES.

A.
As a general rule, there is no modification of general LOW targeting principles during MOOTW.

1.
Rules of Engagement will normally determine the legally justified uses of force during MOOTW.

2.
In accordance with DoD Instruction 5 100.77, and CJCS Instruction 5810.01,

as a matter of policy, the U.S. complies with LOW principles during all conflicts and Military Operations Other Than War.
B. What about United Nations Operations?
1. During other peace operations, e.g. peacekeeping operations, the UN position is that its forces will comply with the “principles and spirit” of International Humanitarian Law (Law of War). This is reflected in the model United Nations SOMA, which essentially utilizes this same law by analogy approach to regulating the conduct of the military forces executing United Nations missions.
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Chapter 9 Law of War und k10OTbV
a.
The Status of Forces Agreement between the UN and Haiti for the UN Mission in Haiti is an example of this policy: “The UN will ensure that UNMIH carries out its mission in Haiti in such a manner as to respect fully the principles and spirit of the general international conventions on the conduct of military personnel. These international conventions include the four Geneva Conventions, the Additional Protocols, and the 1954 Hague Cultural Property Convention.”

C.
JAs must ensure that Rules of Engagement are consistent with general LOW targeting principles.

V.
MOOTW AND CAPTURED PERSONNEL

A.
Combatants Captured by U.S. Forces.

1. U.S. policy is to treat all captured personnel in accordance with the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War.
a.
This policy is focused on ensuring such captives are “respected and protected” in accordance with the spirit of the Convention.

b.
U.S. forces will often lack the capability to comply with every detailed provision of the PW Convention. JAs should bear in mind that these provisions are not legally binding during MOOTW. Focus on ensuring a “respect and protect” mentality among the force. Law by analogy (application of GPW where possible) offers the solution to most MOOTW detainee issues.

2.
Host nation personnel will normally be handed over to the legitimate government, once such government is established or assumes functional control of the country.

3.
Host nation law may offer a guide to treatment of detainees, during a permissive or semi-permissive intervention. [e.g.Haiti].

B. Treatment of “Friendly” Personnel Detained by a Hostile Party: Convention on the Safety of United Nations and Associated Personnel, Dec. 9, 1994, 34 I.L.M.
842.
1.
Signed by 43 countries, including the U.S., as of May 1997. It entered into force on 15 January 1999.

2.
A response to the rising casualty figures among UN personnel deployed in support of peace operations (130 killed in 1993). Evan Bloom, Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, 89 A.J.I.L. 62 1 (1995).

3.
UN and associated personnel and UN operations are broadly defined so as to include associated military contingents, NGOs, contractors, and others. Forces such as the NATO force in Bosnia and UNMIH qualify for protection. Statement of U.S. Ambassador Karl F. Inderfurth to the UN General Assembly of 12/9/94.

4.
Scope of Application: All cases involving UN and associated personnel and UN operations outside of those Chapter VII enforcement actions in which any UN forces are engaged as combatants against organized armed forces and to which the international law of armed conflict applies.

a.
Refer to UN Security Council Resolution to determine if the operation is a Chapter VII operation.

b.
Determining whether the operation iS an enforcement action that requires a review of the object and purposes of the resolution, e.g. is the use of force authorized? Is the action undertaken regardless of the Parties to conflict’s consent? Bloom at 94.

c.
Finally, are UN personnel engaged as combatants? As discussed above, this is a difficult determination to make. The UN and U.S. position was that UN forces in Somalia and in Bosnia did not become combatants. No clear guidance as to when UN forces become combatants currently exists. Operation Desert Storm and traditional peacekeeping missions provide clear examples of non-applicability of the convention (i.e., LOW applies) and applicability (UN Convention applies), respectively.

5.     Main goal of the Convention is to provide for universal criminal jurisdiction for those committing serious offenses against these personnel.
a.     Prosecute or extradite standard. Designed to put pressure on govenunents to take more responsible action in protecting UN personnel. Denies “safe haven” to the attackers. Mahnoush H. Arsanjani, Protection of United Nations Personnel (draft), speech to Duke University Conference on Strengthening Enforcement of Humanitarian Law, 311 01%.
Chapter 9 Law of Wi~rand MOOTW
b. Consequently, this convention and the grave breach provisions of the Geneva conventions provide seamless protection to the participants. Inderfurth statement, supra.
6.
Crimes enumerated in the convention include murder, kidnapping, or other attacks on the person or premises of UN and associated personnel.

7.
If captured, these personnel are not to be interrogated and are to be promptly released. Pending their return, they are to be treated consistently with principles and spirit of the Geneva Convention.

8.
UN and associated personnel always retain their right of self-defense.

VI. MOOTW AND THE TREATMENT OF CIVILIANS
A. CIVILIAN PROTECTION LAW (CPL). CPL is an “analytical template” developed to describe the process for establishing protection for civilians across the operational spectrum. The CPL analytical process rests on the four “tiers” of legal authority:
B. TIER 1:Fundamental Human Rights Recognized as Binding International Law by the United States.
1.
APPLICATION. All civilians, regardless of their status, are entitled to first tier protections. This first tier provides a foundation for JAs that represents the starting point for the legal analysis involved in the protection of civilians. Because this “core of rights” never changes, it also serves as an excellent defaulttstart point for soldier training prior to deployment.

2.
COMPOSITION. This tier is composed of those basic protections for individuals amounting to fundamental rights recognized as international law. These rights are reflected within numerous international declarations and treaties which reflect customary international law.

a.     The Restatement Standard. According to tj 702 of the Restatement of the Foreign Relations Law of the United States, “[A] state violates international law if, as a matter of state policy, it practices, encourages, or condones
(1)Genocide,
(2) Slavery or slave trade, (3)The murder or causing the disappearance of individuals,
(4) Torture or other cruel, inhuman, or degrading treatment of punishment,
(5)Prolonged arbitrary detention,
(6)Systematic racial discrimination, or
(7)
a consistent pattern of gross violations of internationally recognized human rights’

b.
The Common Article 3 Standard. Originally intended to serve as the preface to the Geneva Conventions (it was to provide the purpose and direction statement for the four conventions), it was instead adopted as the law to regulate the controversial “non-international conflicts.”

(1)Common Article 3 is technically a component of humanitarian law, not human rights law. However, the international community now considers the protections established by this provision so fundamental that they have essentially “crossed over” to status as human rights.
(a) ICJ Position: In 1986, the International Court of Justice ruled that Common Article 3 serves as a “minimum yardstick of protection” in all conflicts, not just internal conflicts.’
(b)More expanded Common Article 3. Many experts assert Common Article 3 is applicable to any type of operation, regardless of whether’ or not such an operation can be described as a conflict. This mirrors U.S. practice in recent operations.
(2)
Common Article 3 forbids:

(a)
Torture;

(b)All violence to life or limb;
‘ While this provision seems to open the door to limitless argument as to what falls within this category, the comment to the Restatement indicates that to trigger this category, the violations must be the result of state policy. The rights in this category are reflected in the Universal Declaration of Human Rights and other international covenants. However, violations must not only be in accordance with state policy, but must be repeated and notorious. As a practical matter, few states establish policies in violation of such rights, even if defacto violations occur.
‘Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4 (June 27).
Chapter 9 Law of War and hfOOTW
(c)Taking of hostages;
(d)Degrading/humiliating treatment;
(e)
Punishment without fair and regular trials; and

(f)
Failure to care for and protect the wounded and sick.

(3)Relationship between Humanitarian Law and Human Rights Law. Military practitioners must recognize these two terms are not interchangeable (or entirely consistent).
(a) Humanitarian Law refers to those conventions from the law of war that protect the victims of war (primarily the Geneva Conventions). Human Rights Law refers to a small core of basic individual rights embraced by the international community during the past forty years as reflected in various declarations, treaties, and other international provisions beginning with the UN Charter and Universal Declaration of Human Rights.
(b)Intemational humanitarian law regulates the conduct of state vis-&-vis state, whereas human rights law regulates the conduct of state vis-h-vis individual. The right to protection under humanitarian law is vested not in the individual, but in the state. Under human rights law, the protection flows to the individual directly, and theoretically protects individuals from their own state, which was a radical transition of international law.
(i)
Traditional View: Displacement. At the outbreak of armed conflict, human rights law, generally considered a component of The Law of Peace, is displaced by Humanitarian Law, which is generally considered a component of the Law of War.

(ii)
Emerging View: Dual Application. At the outbreak of armed conflict, human rights law remains applicable and supplements humanitarian law (human rights law is said to apply to human conduct regardless of where along the peace, conflict, war continuum such conduct is found, and regardless of what state commits the violation).

c.
The Amalgamated List. While there are some distinctions between the Restatement list and the Common Article 3 list, the combination results in the following well accepted human rights protected by international law:

249
C/lUptW 9 Law of WLIYnnd MOOTW’
(1)Freedom from slavery or genocide;
(2)The right to a fair and regular trial;
(3)The right to be cared for when sick;
(4)The right to humane treatment when in the hands of a state;
(5)Freedom from torture and cruel, inhum.an, or degrading treatment;
(6)Freedom from murder, kidnapping, and other physical violence;
(7)Freedom from arbitrary arrest and detention;
(8)The right to be properly fed and cared for when detained or under the protection of a nation;
(9)Freedom from systematic racial discrimination (to include religious discrimination);
(10)
Freedom from violation of other internationally recognized human rights if the violation occurs as a result of state policy. (Examples of such violations include systematic harassment, invasion of the privacy of the home, denial of fair trial, grossly disproportionate punishment, etc.)

d.
The Statutory Reinforcement. The prohibition under international law against violation of these “Tier 1” rights is reinforced by various domestic statutes intended to ensure U.S. policy does not support nations which violate such rights. These include:

(1)United States Foreign Assistance Act: no assistance may be provided “to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial of the right to life, liberty, and the security of the person . . .” 22 U.S.C. 8 2151n.(a);
(2)The Agricultural Trade Development and Assistance Act of 1954, as amended 7 U.S.C. 8 1712 (precluding agreement to finance sale of agricultural commodities to such governments);
Chapter 9 Law of’WLTYund MOOTW
(3)International Financial Institutions Act of 1977,22 U.S.C. $9 262d and 262(1) (establishing United States policy to oppose assistance to such governments by international financial institutions).
e. Universal Declaration Reinforcement.
(1)The Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948. It is not a treaty, however many provisions have attained the level of customary international law.
(2)U.S. position and that of most commentators is that only the core articles within the Declaration have achieved status as customary international law. These articles include:
(a) The Common Article 3 “type” protections; and
(b)Provisions that relate to prohibiting “any state policy to practice, encourage, or condone genocide; slavery; murder; torture; or cruel, inhuman or degrading treatment; prolonged arbitrary detention; [the denial ofl equal treatment before the law.”‘
(c) Whether Declaration provisions which guarantee the right to private property reflect customary international law is less clear. The U.S. does recognize the customary status of at least the Declaration’s “core of rights to private pr~perty.”~
(3)Distinguish between saying we are applying Common Article 3 type protections and providing protections “consistent with” the Declaration.
(a)Less flexibility. The Declaration’s core articles are reflections of customary law and must be observed. No caveat of “acting consistent with” will insulate U.S. from fUture obligations to comply with these provisions.
(b)Declaration provisions the U.S. does not consider reflective of customary international are technically not binding on the U.S. However, these may nonetheless be integrated into the planning
RESTATEMENT (THIRD)OF THE FOREIGNRELATIONS LAWOF THE UNITEDSTATES,at 5 702.
Id. 3 702 k.
251 Chapter 9
LCIMJ
uf Vforanti MOOTW
phase of operations and serve as guidance. The U.S. supports the spirit of the Declaration and acts consistent with all provisions unless doing so is wholly impractical.
C. TIER 2: Host Nation (HN) Law Providing Specific Rights to an Indigenous Population.
1. APPLICATION. U.S. policy and international law require the observance of host nation law unless such law “constitutes a threat to … security or an obstacle to the application of [international law].”5 Therefore, these laws must be observed so long as they are not displaced as a result of the nature of the operation, or conflict with binding international law obligations (in most cases such an obligation would come from Tier 1). The traditional rule is that host nation law applies unless:
a.
Waived by international agreement, SOFA, or SOMA (in which case there is conventional international law in the form of an agreement which displaces the host nation law);

b.
U.S. forces engage in combat with host nation forces (in which case international humanitarian law displaces host nation law); or

c.
U.S. forces enter under the auspices of a U.N. sanctioned security enforcement mission (a Chapter VII action without the consent of the host nation).

2.
COMPOSITION. Second tier protections include any protections afforded by host nation law that retain viability after the entry of U.S. forces. The most common forms of host nation protections involve rules that regulate deprivation of property and liberty.

3.
SOURCES. The host nation’s (1) constitution, (2) criminal code (both substantive and procedural rules), (3) environmental protection regime, and

(4)
civil codes that deal with use of property. In addition, any (5) SOFAS, SOMAS, or international agreements that impact the application of host nation law.

a.
If host nation law applies to U.S. forces during a MOOTW, this includes ALL host nation law. JA’s must be alert to international human rights

* FM 27-10, supra note 9, at para. 369 and GC, supra note 3, at art. 64.
Chapter 9 Law of War und MOOTW
obligations of the host nation, even if not binding under U.S. law, because such obligations become binding as host nation law.
b. JAs should seek information on host nation law and applicable international agreements from the unified command.
(1)Attempt to identify those countries whose host nation law may be applicable to our operations during OPLAN review.
(2)Attempt to gain information regarding host nation laws from sources such as Civil Affairs units and higher headquarters. Work with Civil Affairs staff elements to develop soldier guides for host nation law.
4.     THE CONFLICT SPECTRUM. Applicability of host nation law may be contingent on the nature of the operation, and range from no host nation law application (armed conflict) to total control of host nation law (presence by invitation).
a.
MOOTW (Coerced Invitation?). U.S. forces enter the host nation as neither invaders or guests. Therefore, the obligation to follow host nation law is questionable. The response: sensitivity to host nation law, but refusal to treat such law as absolutely binding on U.S. forces. Operations UPHOLD DEMOCRACY and JOINT ENDEAVOR are examples of this type of status. (Adherence to Tier 1 obligations should help to ensure our forces retain the moral high ground even if they are not in full compliance with host nation law).

D.
TIER 3: Conventional Law (The Hard Law).

1.     APPLICATION. The third tier of protections is based on international obligations imposed upon U.S. forces by treaties or functional equivalent instruments. These obligations may often depend on the circumstances that surround the operation and the particular status of the civilians.
a.     Example: Third tier protections bestowed upon a person who satisfies the definitional requirements necessary to be considered a “refugee.” The “refugee” is entitled to a protected status by operation of conventional law (The Refugee Protocol).
2. COMPOSITION. This tier includes protections bestowed by treaties and other international agreements imposing binding obligations on U.S. forces,
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either directly or through executing legislation. Such treaties provide protections to specific groups of persons under specific circumstances. The conventions of the third tier. when triggered, are viewed to bind absolutely the conduct of the United States. During any period of armed conflict involving U.S. forces, all Law of War Conventions fall within this category.
3.     SOURCES. The sources of law differ depending upon the type of operation and the status of the person. For example, the 1967 Refugee Protocol and the Refugee Act of 1980 provide protections for individuals granted that status. Third Tier law includes the various Law of War conventions. The most significant of these conventions are the Hague Regulations, the Geneva Convention Relative to the Protection of Civilian Persons, and Protocols I and I1 Additional to the Geneva and include the Hague convention^.^
a.
Although not ratified by the U.S., we acknowledge many provisions of the Protocols reflect customary international law.

b.
Because we do not want our practice to contradict our refusal to ratify these protocols, we characterize our compliance with the principles represented therein as either compliance with customary international law, or application of law by analogy.

4.     HUMAN RIGHTS TREATIES: ASPIRATION v. OBLIGATION. Not included within this group of conventions are the various human rights conventions ratified by the United States. Although the United States aspires to act in compliance with such treaties, certain domestic legal doctrines render these treaties non-obligatory during military operations outside U.S. territory.
a.     The “decade of ratification.” In the past decade Presidents Reagan, Bush and Clinton have ratified a number of important human rights treaties potentially impacting the conduct of U.S. forces during future military operations.
(1)These treaties include the International Covenant of Civil and Political Rights (ratified in 1992); the Convention on the Prevention and Punishment of the Crime of Genocide (ratified in 1988); and the
These protections, however, apply only in a very narrow set of circumstances. First, hostilities that satisfy the GC, article 2 definition of armed conflict (Common Article 2) must be present. Second, the civilians must be situated under the even narrower circumstances required by each of the individual subparts of the foregoing treaties.
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Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or punishment (ratified in 1994).
b. Domestic Law of Treaty Obligation. The following two doctrines of treaty obligation explain why many of these human rights treaties are not binding on U.S. forces operating outside the U.S.
(1)Extraterritoriality. Although the United States has ratified a number of important human rights treaties, it has reduced the importance of these treaties by stating that these regimes do not have extraterritorial application. (The opposite view is espoused by other nations and a number of well-recognized international law authorities).
(a)
Traditional presumption: human rights law is directed at regulating the way nations treat their own population. Under this view, human rights treaties do not apply extraterritorially unless the parties agree to such application.

(b)
Scope articles. Many treaties include articles specifically establishing the scope of application. For instance, article 2 of the International Covenant of Civil and Political Rights states that the treaty applies to “all individuals within [a party’s] territory and subject to its jurisdiction.”

(i)
These provisions do not eliminate controversy, which turns on the meaning of “subject to their jurisdiction.”

(ii)
U.S. position is that this term does not include civilians in areas outside the U.S. where our forces conduct MOOTW. Many experts believe, however, this language extends jurisdiction to such persons.

(iii) This interpretation might dramatically alter the U.S. treaty obligation during the course of overseas operations. (The U.S. took no reservation, and made no understanding or declaration in regard to this issue).
(2)Non-Self-Executing (NSE) Treaties. The U.S. has made a written NSE declaration during the ratification process, which it has appended to each of these treaties (interestingly, the U.S. did not take a formal NSE reservation to any of the treaties). This theoretically removes these treaties from consideration during the course of both domestic and overseas operations.
(a) Treaties considered non-self executing do not bind U.S. forces absent executing legislation.
(b)If “executed,” the legislation, and not the treaty, binds U.S. forces.
(c)
Although the U.S. has not enacted legislation to execute obligations under these treaties, it does consider them during the planning and execution phases of overseas operations.

(i)
This is a policy-based consideration and not a legally-obligated consideration. (Remember, however, that a provision of a treaty that reflects customary international law is binding on

U.S. operations regardless of whether the treaty is self- executing).
(ii) Using non-obligatory provisions of such treaties to guide the development of policy for military operations falls under Tier
4:
Law by AnalogyExtension.

E.
TIER 4: U.S. Domestic Law & Policy (Including Law by AnalogyIExtension).

1. APPLICATION. The 4thtier of protections emerges when JAs blend law by analogy and extension, common sense, and mission imperatives.
a.
There are several sources of authority for the process of “law by analogy.” Both DoD Dir. 5100.77 (DoD’s Law of War Program) and the Standing Rules of Engagement (SROE) require that the Law of War and similar domestic law and policy be applied in all military operations, even where not technically triggered, to the extent such application is feasible. Additionally, any other law that logically forms the basis of an analogy should be considered.

b.
Recent operations demonstrate this process. During Operations PROVIDE COMFORT, RESTORE HOPE, and UPHOLD DEMOCRACY.

c.
JAs dealt with the paradox of operations not considered international armed conflict which nonetheless virtually satisfied the classical elements of formal occupation. Accordingly, many of the responsibilities, rights,

Chapter 9 Low of War and MOOTW
protections, and obligations established by traditional occupation law were observed by analogy and extension.
(1)This process of using analogy to other bodies of civilian protection law to develop a structure for dealing with civilian populations is essential to fill the void of authority that results from the lag time for international law to develop standards to apply to such situations.
(2)The significance of applying such a process may extend beyond any given operation. Because international law emerges from the customary practice of nations, our conduct may in fact form a foundation for future international law standards.
2.     COMPOSITION. JAs familiar with the nature and likely impact on civilians of any given operation must search for third tier conventions; domestic statutes, executive orders, and directives. The objective of this process is to ascertain sources-of law that will enable the force to meet mission requirements while providing civilian protection rules sufficient to maintain the legal legitimacy of the operation. Then, using third tier law as guidance, JAs synthesize lessons learned, common sense, operational realities, and mission imperatives to develop fourth tier rules.
a.
These rules must then be translated into operational parameters and transmitted to the force.

b.
Relative to most MOOTW, third tier protections become especially significant in this process. When policy makers and JAs begin the process of determining what rules will belong within a package of fourth tier protections, the third tier almost always provides a logical start point for conducting such an analysis.

(1)Using such law to create a “package” of rules for the protection of civilians is an example of the U.S. acting “consistent with” laws that are not technically obligatory. This is a critical caveat that must be included in fourth tier application of such law.
VII. MOOTW AND OBLIGATIONS TOWARD THE WOUNDED & SICK
A. Medical activities as part of the MOOTW mission.
1. Medical activities may be undertaken as a primary mission during MOOTW. For example, health service support operations may be part of, if not the
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primary goal of, a larger humanitarian and civic assistance (HCA) program. In such cases, a primary mission is to seek out the sick and provide care to designated portions of the civilian population. JOINT PUB 4-02, DOCT~E FOR HEALTHSERVICE IN JOINT OPERATIONS 1 -IV -2 (15 NOV.
SUPPORT IV -1994). See also MG George A. Fisher memorandum regarding Medical- Civil Action Guidelines of 1/25/95.
2.     Medical activities may also be focused primarily on supporting combat units. Law of war issues are most likely to arise under such circumstances. This raises the issue of what humanitarian standards are applicable.
a.
The following discussion of such standards is drawn from the Geneva Wounded and Sick Convention (GWS) and experiences during Operation Restore Democracy.

b.
Two excellent sources of lessons learned in this area are Memorandum fiom MG George A. Fisher, MNF Medical Rules of Engagement (ROE) Policv of 1/25/95, and Asbjorn Eide, Allan Rosas, Theodor Meron

Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards 89 A.J.I.L. 215 (1995) (discussing certain minimum humanitarian standards applicable to all situations).
B. Humanitarian Standards.
1.
Respect and protect the wounded and sick (Article 12 GWS). The obligation not to attack the wounded and sick and to provide basic care. The type of basic care provided is discussed infia in terms of emergency care. The category of wounded and sick persons is generally considered to include civilians.

2.
Search for and collect wounded and sick and the dead (Article 15, GWS). This standard does not’translate well to MOOTW. At best it can be applied to the extent practicable and feasible. W. Hays Parks memorandum, supra.

a.
Note that even under the GWS, this requirement is subject to military practicability, i.e. the obligation is not absolute.

b.
Furthermore, the obligation to search for civilian wounded under GC Article 16 (“as far as military consideration allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded [civilians]) is not as strong as the obligation to search for those

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protected under the GWS (primarily members of the armed forces). This
language recognizes the primacy of civilian authorities in the matter of
caring for civilians. See DEP’TOF ARMYFIELDMANUAL8-10, HEALTH
SERVICE INA THEATER para. 3-17 (1 Mar 1991).
SUPPORT OF OPERATIONS,
c.
Finally, consistent with the primacy of civilian authorities mentioned above, there are also sovereignty issues at play in situations such as those encountered in Panama and Haiti. “Primary responsibility for the collection, burial, and accountability for the wounded and dead lay with the Government of Panama. U.S. assumption of any responsibility for the burial of deceased Panamanians, military or civilian, would have constituted a breach of Panama’s sovereignty without its express consent.” W. Hays Parks memorandum, supra.

d.
Consequently, the U.S. policy in Haiti was to render emergency care required to save life, limb, or eyesight to Haitian civilians. Thus, on site medical personnel were permitted to provide emergency stabilization, treatment, and to arrange transportation to civilian hospitals. Additionally, in Haiti, treatment was provided to those persons injured as a result of U.S. actions. See MG Fisher memorandum, supra.

3.     Medical, religious and other humanitarian personnel shall be respected and protected. U.S. forces should have no difficulty complying with this standard.
APPENDIX A
CPL AND CIVILIAN DETAINMENT
I. DEPRIVATION OF LIBERTY.
A. Four types of deprivation:
1.
Detainment;

2.
Internment;

3.
Assigned residence;

4.
Simple imprisonment (referred to as confinement in AR 190-57):

a.
Includes pre/post-trial incarceration.

b.
Pretrial confinement must be deducted fiom any post-trial period of confmement.

c.
A sentence of to imprisonment may be converted to a period of internment.

d.
GC Arts. 68-71.

B.
DETAINMENT IN MOOTW.

1.     Detainment defined: Not formally defined in International Law. Although it may take on characteristics of confinement, it is more analogous to internment (which is formally defined and explained in the LOW). Within Operation JOINT ENDEAVOR detention was defined as “a person involuntarily taken into custody for murder, rape, aggravated assault, or any act or omission as specified by the IFOR Commander which could reasonably be expected to cause serious bodily harm to (1) civilians, (2) non- belligerents, or (3) IFOR per~onnel.”~
I The distinction between confinement and internment is that those confined are generally limited to a jail cell (“CI camp stockade”), while internees remain free to roam within the confines of an internee camp. AR 190-57, para. 2-12.
See TASKFORCEEAGLE:JOINTMILITARY POLICY AND PLANNING HANDBOOK(2 1
COMMISSION GUIDANCE Mar. 1996).
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2.     Detainment is Typically Authorized (by a designated task force commander) For:
a.
Serious crimes (as described above);

b.
Posing a threat to US. forces (or based upon COMBATANT
COMMANDER authority, the coalition force);

c.
Violating rules set out by the intervention forces. For example, the IFOR in Operation JOINT ENDEAVOR authorized detainment for persons who attempted to enter controlled areas or attack IFOR pr~perty.~

d.
Obstructing the forces’ progress (obstructing mission accomplishment in any number of ways to include rioting, demonstrating, or encouraging others to do so).

3.
While these categories have proved effective in past operations, JA’s must ensure that the categories actually selected for any given operation are derived from a mission analysis, and not simply from lessons learned.

4.
The LOW (and therefore, the Geneva Conventions) does (do) not technically apply to MOOTW. However, pursuant to the fourth tier methodology, the LOW should be used as guidance during MOOTW.

5.
In MOOTW, JAs should:

a.
Advise their units to exhaust all appropriate non-forcible means before detaining persons who obstruct friendly forces.

b.
Look to the mission statement to determine what categories of civilians will be detained. The USCINCENT Operation Order for Unified Task Force Somalia (1992) set out detailed rules for processing civilian detainees. It stated that:

c.
In the area under hs control, a commander must protect the population not only from attack by military units, but also from crimes, riots, and other forms of civil disobedience. To this end, commanders will: . . . Detain those accused of criminal acts or other violations of public safety and security.

‘Id.
d. After determining the type of detainees that will find their way into U.S. hands, they should apply the four-tiered process of CPL to determine what protections should be afforded to each detainee.
(1)Tier 1: Detainment SOPS might provide that all detainees will be afforded rights “consistent with” with the Universal Declaration of Human Rights and Common article 3.
**
The term “consistent with” is a term of art insulating the U.S. from
assertions of formal recognition that we are bound to certain obligations.
The U.S. does not say anyone is entitled to anything. This ties in with the
confusion relative to which protections under the Universal Declaration
are customary law and which are not.
(2)These protections are translated into rules such as those listed below, which were implemented by the IFOR during Operation JOINT ENDEAVOR:
(a) Take only items from detainees that pose an immediate threat to members of the force or other detainees.
(b)Use minimal force to detain or prevent escape (this may include deadly force if ROE permits).
(c)
Searches must be conducted in such a way as to avoid humiliation and harassment.

(d)Detainees shall be treated humanely.

(e)
Detainees shall not be physically abused.

(f)
Contact with detainees may not be of a sexual nature.

(3)Detainees may not be used for manual labor or subservient tasks.
(4)Tier 2: Apply procedural protections afforded by the host nation to individuals detained under similar conditions. For example, if the host nation permits the right to a magistrate review within so many hours, attempt to replicate this right if feasible.
(5) Tier 3 : No specific Conventions apply.
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(6)Tier 4: JOINT ENDEAVOR SOPs provide detainees with the right to EPW treatment (EPW status is not bestowed, although a few SOPs incorrectly state that it is).
(7)
Categorization and Segregation. The SOPs then go on to provide that the detainees will be categorized as either criminal or hostile (force protection threats). Those accused of crimes must be separated from those detained because they pose a threat to the force. In addition, detainees must be further separated based upon clan membership, religious beliefs, or any other factor that might pose a legitimate threat to their safety.

e.
In both Somalia and Haiti, the U.S. ran extremely successful Joint Detention Facilities (JDFs). The success of these operations was based upon a simple formula.

(1)Detain people based upon clear and principled criteria.
(2)Draft a JDF SOP with clear rules that each detainee must follow and rights to which each detainee is entitled.
(3)Base the quantity and quality of the rights upon a principled approach: CPL.
6. When in the fourth tier (law by analogy) look to the GC, in addition to the GPW when dealing with civilians. The practice of JTF JAs in Operations RESTORE HOPE and RESTORE DEMOCRACY was to look only to the GPW. This caused a number of problems “because the GPW just did not provide an exact fit.”
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SNAPSHOT OF MOOTW DETAINMENT RULES (ANALOGIZED FROM THE GC AND OTHER APPLICABLE DOMESTIC AND INTERNATIONAL LAW).
A. Every civilian has the right to liberty and security. NO ONE SHALL BE SUBJECTED TO ARBITRARY ARREST OR DETENTION. Int’l Cov. on Civil & Pol. Rts. Art. 9. Univ. Declar. of Human Rights Art. 9. This is consistent with the GC requirement that detention be reserved as the commander’s last option. GC, Art. 42.
B. Treatment will be based upon international law, without distinction based upon “race, colour, sex, language, political or other opinion, national or social origin, property, birth, or other status.” Univ. Declar. of Human Rights Art. 2.
C. No detainee shall be subjected to cruel, inhuman, or degrading treatment. Univ. Declar. of Human Rights, Art. 5.
D. Detain away fi-om dangerous areas. GC, Arts. 49 and 83.
E.     The place of detainment must possess (to the greatest extent possible) every possible safeguard relative to hygiene and health. GC Art.85.
F.     Detainees must receive food (account shall be taken of their customary diet) and clothing in sufficient quantity and quality to keep them in a good state of health. GC, Art. 89.
G. Detainees must be maintained away from PWs and criminals. GC, Art. 84. In fact, U.S. commanders should establish three categories of detainees:
1.
Those detained because of suspected criminal Activity;

2.
Those detained because they have been convicted of criminal; and

3.
Those detained because they pose a serious threat to the security of the force (an expectation of future activity, whether criminal or not.

H. Detainees shall be detained in accordance with a standard procedure, to which the detainee shall have access. GC, Art. 78. Detainees have the right to appeal their detention. The appeal must be processed without delay. GC, Art.78.
I.     Adverse decisions on appeals must (if possible) be reviewed every six months. GC, Art. 78.
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J.     Detainees retain all the civil rights (HN due process rights), unless incompatible with the security of the Detaining Power. GC, Art. 80.
K. Detainees have a right to free medical attention. GC, Arts. 81, 91, & 92.
L.     The Detaining Power must provide for the support of those dependent on the detainee. GC, Art. 81.
M.
Families should be lodged together during periods of detainment. Detainees have the right to request that their children be brought to the place of detainment and maintained with them. GC, Art. 82.

N.
Forwarding Correspondence.

1.
In absence of operational limitations, there are no restrictions on the number or length of letters sent or received. In no circumstance, will the number sent fall below two cards and four letters. AR 190-57, para. 2-8.

2.
No restriction with whom the detainee may correspond. AR 190, para. 2-8.

3.
No restriction on the number or type of correspondence to either military authorities or Protecting Power (ICRC).

The foregoing rules applicable to internment, found in Section IV of Geneva IV and AR 190-57, are but an abbreviated list of the complete list of rules that apply.
APPENDIX B
CPL AND THE TREATMENT OF PROPERTY
I. TREATMENT OF PROPERTY.
A. Tier 1. Every person has the right to own property, and no one may be arbitrarily deprived of such property. Univ. Declar. of Human Rights Art. 17.
B. Tier 2. The property laws of the host nation will control to the extent
appropriate under Public International Law (The Picard Spectrum).

1. Consider the entire range of host nation law, from its constitution to its property codes. For example in Operation UPHOLD DEMOCRACY the JTF discovered that the Haitian Constitution afforded Haitians the right to bear arms. This right impacted the methodology of the JTF Weapons Confiscation Program.
C. Tier 3. If a non-international armed conflict is underway, only Common Article 3 applies, which provides no protection for property. If an international armed conflict is underway, the property protections found with the fourth Geneva Convention apply. The protections found within this convention are described in chapter six as the nine commandments of property protection.
1. During an international armed conflict, any destruction not “absolutely necessary” for the conduct of military operations is a war crime (GC, art. 53). Further, if that destruction, devastation, or taking of property is “extensive” or comprehensive, the crime is considered a grave breach of the law of war (GC, art. 147). Accordingly, the “prosecute or extradite” mandate would apply to the individual/individuals responsible for such misconduct (GC, art. 146).
a.
What does “extensive damage” mean? In the official commentary to the convention, Pictet states that “extensive” means more than a “single incident.” However, Pictet does not discuss the possibility of a single attack that is of great scope (destruction of an entire city grid or more).

b.
Is this definition limited only to property in the hands of the enemy? Pictet also notes that article 147 modifies and supplements only article 53. This is important because article 53 only applies to property within occupied territory. Accordingly, if a warring nation were to bomb a

Chapter 9 Law of War und MOOTW
civilian factory, and this bombing was not of absolute military necessity, one might conclude it is not a grave breach, and maybe not a breach at all (although it might violate article 23 of the Hague Regulations).
D. Tier 4 (Law by Analogy).
1.
Follow the nine commandments of property use during armed conflict.

2.
The occupying power cannot destroy “real or personal property . . . ,except where such destruction is rendered absolutely necessary”. GC Art. 53.

3.
Pillage. Defined as the “the act of taking property or money by violence.” Also referred to as plundering, ravaging, or looting.”

a.
Forbidden in all circumstances (one of the general provision protections of Section I).

b.
Punishable as a war crime or as a violation the UCMJ

c.
The property of a protected person may not be the object of a reprisal. GC Art. 33.

d.
Control of Propem.     The property within an occupied territory may be controlled by the occupying power to the extent:

(1)Necessary to prevent its use by hostile forces.
(2)To prevent any use that is harmful to the occupying power.
(3)NOTE: As soon as the threat subsides, private property must be returned. FM 27-10, Para. 399.
E.     Understand the relationship between the battlefield acquisition rules of Tier Three’s conventional law property protections and the U.S. Military’s Claims System. See Operational Law Handbook and chapter six of this deskbook.
F. Protection of Civilian Property Under the Third Convention. For persons under the control of our forces (detained persons, etc.), the United States has frequently provided protection of property provided to EPWs under the Third Geneva Convention. For instance, all effects and articles of personal use, except arms and military equipment shall be retained by an EPW (GPW, art. 18). This same type of protection has a natural extension to civilians that fall under military control.
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APPENDIX C
CPL AND DISPLACED PERSONS
I. TREATMENT OF DISPLACED PERSONS (REFUGEES).
A. Generally, nations must provide refugees with same treatment provided to aliens and in many instances to a nation’s own nationals. The most basic of these protections is the right to be shielded from danger.
1. REFUGEE DEFINED. Any Person:
a.
Who has a well-founded fear of being persecuted for reasons of race, religion, nationality, social group, religion, or political association;

b.
Who is outside the nation of his nationality; and

c.
Is without the protection of his own nation, either because:

(1)That nation is unable to provide protection, or
(2)The person is unable to seek the protection, due to the well-founded fear described above.
**     Harsh conditions, general strife, or adverse economic conditions are not
considered “persecution.” Individuals fleeing such conditions do not fall
within the category of refugee.
**     The UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status is an excellent source of information on this subject. However,
practitioners must recognize that the standards established by the UNHCR do
not always correspond with U.S. policy.
2.     MIGRANT DEFINED: Those who do n~t’necessaril~
qualify for refugee status and the accompanying rights. The 1967 Protocol is not self-executing and therefore does not bestow any rights upon a person claiming refugeelrefugelpolitical asylum status. Nation states are free to apply the definitional elements found with the Protocol.
B. MAIN SOURCES OF LAW:
1.
1951 Convention Relating to the Status of Refbgees (RC). The RC bestows refugee statuslprotection on pre- 195 1 refugees.

2.
1967 Protocol Relating to the Status of Refugees (RP). The RP bestows refugee status/protections on post- 195 1 rehgees.

Chapter 9 Law of War and MOOTW
a.
Adopts same language as 195 1 Convention.

b.
U.S. is a party (1 10 ratifying nations).

3.     1980 Refugee Act (8 U.S.C. $ 1101). Because the RP was not self- executing, this legislation was intended to help U.S. law conform to the 1967
RP.

a.
Applies only to refugees located inside the U.S.’

b.
This interpretation was challenged by advocates for Haitian refugees interdicted on the high seas pursuant to Executive Order. They asserted that the international principle of “non-refoulment” (non-return) applied to refugees once they crossed an international border, and not only after they entered the territory of the U.S.

c.
The U.S. Supreme Court ratified the government interpretation of “non- refoulment” in United States v. Sale. This case held that the RP does not prohibit the practice of rejection of rehgees at our borders. (This holding is inconsistent with the position of the UNHCR, which considers the RPto prohibit “refoulment” once a refugee crosses any international border).

4.     Immigration and Nationality Act (8 USC $1253).
a.
Prohibits Attorney General from deporting or returning aliens to countries that would pose a threat to them based upon race, religion, nationality, membership in a particular social group, or because of a particular political opinion held.

b.
Does not limit U.S. authority outside of the U.S. (Foley Doctrine on, Extraterritoriality of U.S. law).

5.     Migration and Rehgee Assistance Act of 1962 (22 USC $2601).
a.     Qualifies refugees for U.S. assistance.
Although the phrase “within the U.S.”was removed in 1980, the courts have steadfastly interpreted this only to apply to the difference in the status of aliens already within the U.S. “Within the US.” is a term of art used to apply to persons who have legally entered the U.S. A person who is physically within the U.S., having entered illegally, is not “within the U.S.”
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b.
Application conditioned upon positive contribution to the foreign policy interests of U.S.

C.
RETURNEXPULSION RULE.

1.
No Return Rule (RP art. 33). Parties may not return a refugee to a territory where his life or fieedom would be threatened on account of his race, religion, nationality, social group, or political opinion.

2.
No Expulsion Rule (RP arts. 32 & 33). Parties may not expel a refugee in absence of proper grounds and without due process of law.

3.
According to the Supreme Court, these prohibitions are triggered only after an individual crosses a U.S. border. This is the critical distinction between the U.S. and UNHCR interpretation of the RP which creates the imperative that refugees be intercepted on the high seas and detained outside the US.

4.
Grounds for Return or Expulsion.

a.
Expulsion: (1) national security, (2) public order, or (3) danger to the community.

b.
Return: (1) national security or (2) danger to the community.

5.     Burden of Proof.
a.
National security or public order = reasonable grounds.

b.
Danger to community = conviction of serious crime.

c.
Public Health Risks (e.g. HIV Positives):
(1)Excludable as a threat to national security.

(2)Attorney General may waive medical exclusion for “humanitarian reasons.”
6.     Other Traditional Exclusion Grounds:
a.
Prostitution

b.
Membership in communist or other totalitarian political group.

c.
Aliens who have made previous illegal entries.

D.
FREEDOMS AND RIGHTS. Generally, these rights bestow (1) better treatment than aliens receive, and (2) attach upon the entry of the refugee into the territory of the party.

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1.
Freedom of Religion (equal to nationals).

2.
Freedom to Acquire, Own, and Convey Property (equal to aliens).

3.
Freedom of Association (equal to nationals).

4.
Freedom of Movement (equal to aliens).

5.
Access to Courts (equal to nationals).

6.
Right to Employment (equal to nationals with limitations).

7.
Right to Housing (equal to aliens).

8.
Public Education (equal to nationals for elementary education).

9.
Right to Social Security Benefits (equal to nationals).
10.Right to Expedited Naturalization.

E. DETAINMENT (See MOOTW DETAINMENT above).
1.
U.S. policy relative to Cuban Refugees (MIGRANTS) is to divert and detain.

2.
General Principles of International Law forbid “prolonged & arbitrary” detention.

3.
Detention that preserves national security is not arbitrary.

4.
No statutory limit to the length of time for detention (4 years held not an abuse of discretion).

5.
Basic Human Rights apply to detained or “rescued” refugees.

F. POLITICAL ASYLUM. Protection and sanctuary granted by a nation within its borders or on the seas, because of persecution or fear of persecution as a result of race, religion, nationality, social group, or political opinion.
G. TEMPORARY REFUGE. Protection given for humanitarian reasons to a national of any country under conditions of urgency in order to secure life or safety of the requester against imminent danger. NEITHER POLITICAL
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ASYLUM NOR TEMPORARY REFUGE IS A CUSTOMARY LAW RIGHT.
A number of plaintiffs have attempted to assert the right to enjoy international
temporary rehge has become a peremptory right under the doctrine ofjus
cogens. The federal courts have routinely disagreed. Consistent with this view,
Congress intentionally left this type of relief out of the 1980Refugee Act.
1.     U.S. POLICY
a.     Political Asylum.
(1)The U.S. shall give foreign nationals full opportunity to have their requests considered on their merits.
(2)Those seeking asylum shall not be surrendered to a foreign jurisdiction except as directed by the SECARMY.
(3)These rules apply whether the requester is a national of the country wherein the request was made or &om a third nation.
(4)The request must be coordinated with the host nation, through the appropriate American Embassy or Consulate.
** This means that U.S. military personnel are neverauthorized to grant asylum.
b. Temporary Refuge. The U.S., in appropriate cases, shall grant refuge in foreign countries or on the high seas of any country.
** This is the most the US.military should ever bestow.
H. IMPACT OF LOCATION WHERE CANDIDATE IS LOCATED.
1.     IN TERRITORIES UNDER EXCLUSIVE U.S. CONTROL & ON HIGH SEAS:
a.
Applicants will be received in DA facilities or on aboard DA vessels.

b.
Applicants will be afforded every reasonable protection.

c.
Refuge will end only if directed by higher authority, “through the SECARMY.”

d.
Military personnel may QOJ grant asylum.

e.
Arrangements should be made to transfer the applicant to the DOJ INS ASAP. Transfers don’t require DA approval (local approval).

f.
All requests must be forwarded in accordance with AR 550- 1,f7.

g.
Inquiries from foreign authorities will be met by the senior Army official present with the response that the case has been referred to higher authorities.

h.
No information relative to an asylum issue will be released to public, without HQDA approval.

Chapter 9 Ltrw of Pl.i~rand iZ/IOOTW
(1)Immediately report all requests for political asylum/temp. refuge” to the Army Operations Center (AOC) at Commercial (703) 697-02 18 or DSN 227-021 8.
(2)The report will contain the information contained in AR 550-1
(3)The report will not be delayed while gathering additional information
(4) Contact International and Operational Law Division, Army OTJAG (or service equivalent). The AOC immediately turns around and contacts the service TJAG for legal advice.
2. IN FOREIGN TERRITORIES :
a.
All requests for either political asylum or temporary refuge will be treated as requests for temporary refuge.

b.
The senior Army officer may grant refuge if he feels the elements are met: If individual is being pursued or is in imminent danger of death or serious bodily injury.

c.
If possible, applicants will be directed to apply in person at U.S. Embassy.

d.
During the application process and refuge period the refugee will be
protected. Refuge will end only when directed by higher authority.

Chapter 9 Low of War andM00TW
NOTES

Chapter 9
Lclw of War und MOOTW

NOTES

Chapter 9
Law of Wur and hfOOTW

NOTES

NOTES

Chapter 9
Law of War und h1OOTW

HUMAN RIGHTS
REFERENCES
1.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T.3516.

2.
Restatement (Third) of the Foreign Relations Law of the United States.

3.
Universal Declaration of Human Rights, G.A. Res. 217 A (111), UN Doc. A1810 at 71 (1948).

I. INTRODUCTION
A. To best understand human rights law, it may be useful to think in terms of obligation versus aspiration. This results from the fact that human rights law exists in two forms: treaty law and customary international law.’ Human rights law established by treaty generally only binds the state in relation to its own residents; human rights law based on customary international law binds all states, in all circumstances. For official U.S. personnel (“state actors” in the language of human rights law) dealing with civilians outside the territory of the United States, it is customary international law that establishes the human rights considered fundamental, and therefore obligatory. Analysis of the content of this customary international law is therefore the logical start point for this discussion.
11.     CUSTOMARY INTERNATIONAL LAW HUMAN RIGHTS: THE
OBLIGATION

A. If a specific human right falls within the category of customary international law, it should be considered a “fundamental” human right. As such, it is binding on U.S. forces during all overseas operations. This is because customary international law is considered part of U.S. lawYzand human rights Iaw operates to regulate the way state actors (in this case the U.S. armed forces) treat all humans.’ If a “human right” is considered to have risen to the status of customary international law, then it is considered binding on U.S. state actors
See RESTATEMENT(THIRD) OF THE FOREIGN RELATIONSLAWOF THE UNITEDSTATES,at 3 701.
See the Paquete Habana The Lola, 175 U.S. 677 (1900); see also supra note 1 at 5 11 1.
Supra note 1 at 5701.
279
Chapter 10 firnun Rights
wherever such actors deal with human beings. According to the Restatement
(Third) of Foreign Relations Law of the United States, international law is
violated by any state that “practices, encourages, or condones””a violation of
human rights considered customary international law. The Restatement makes
no qualification as to where the violation might occur, or against whom it may
be directed. Therefore, it is the customary international law status of certain
human rights that renders respect for such human rights a legal obligation on the
part of U.S. forces conducting operations outside the United States, and not the
fact that they may be reflected in treaties ratified by the United States. Of
course, this is a general rule, and judge advocates must look to specific treaties,
and any subsequent executing legislation, to determine if this general rule is
inapplicable in a certain circ~mstance.~ This is the U.S. position regarding
perhaps the three most pervasive human rights treaties: the Covenant on Civil
and Political Rights, the Covenant on Economic, .Social and Cultural Rights, and
the Refugee Convention and Refugee Protocol.
B. Unfortunately, for the military practitioner there is no definitive “source list” of those human rights considered by the United States to fall within this category of fundamental human rights. As a result, the judge advocate must rely on a variety of sources to answer this question. Among these sources, the most informative is the Restatement (Third) of Foreign Relations Law of the United States. According to the Restatement, the United States accepts the position that certain fundamental human rights fall within the category of customary international law, and a state violates international law when, as a matter of policy, it practices, encourages, or condones any of the following:
1.
Genocide,

2.
Slavery or slave trade,

3.
Murder or causing the disappearance of individuals,

4.
Torture or other cruel, inhumane, or degrading treatment or punishment,

5.
Prolonged arbitrary detention,

6.
Systematic racial discrimination, or

Supra note 1, at $702.
According to the Restatement, as of 1987, there were 18 treaties falling under the category of “Protection of Persons,” and therefore considered human rights treaties. This does include the Universal Declaration of Human Rights, or the United Nations Charter, which are considered expressions of principles, and not binding treaties.
Chaptev 10
Iiurnan Rights
7.     A consistent pattern of gross violations of internationally recognized human right^.^
Although international agreements, declarations, and scholarly works suggest that the list of human rights binding under international law is far more expansive than this list, the Restatement’s persuasiveness is reflected by the authority relied upon by the drafters of the Restatement to support their list. Through the Reporters’ Notes, the Restatement details these sources, focusing primarily on U.S. court decisions enunciating the binding nature of certain human rights, and federal statutes linking international aid to respect by recipient nations for these human rights.’ These two sources are especially relevant for the military practitioner, who must be more concerned with the official position of the United States than with the suggested conclusions of legal scholars. This list is reinforced when it is combined with the core provisions of the Universal Declaration of Human Rightsqone of the most significant statements of human rights law, some portions of which are regarded as customary international law9), and article 3 common to the four Geneva Conventions of 1949 (which although a component of the law of war, is used as a matter of Department of Defense Policy as both a yardstick against which to assess human rights compliance by forces we s~pport,’~
and as the guiding source of soldier conduct across the spectrum of conflict1′). By “cross- leveling” these sources, it is possible to construct an “amalgamated” list of those human rights judge advocates should consider customary international law. These include the prohibition against any state policy that results in the conclusion that the state practices, encourages, or condones:
1.     Genocide,
Yupra note 1, at 5702.
‘Supra note 1, at $702, Reporters’ Notes.
G.A. Res. 217A (III), UN Doc. A/810, at 71 (1948).
RICHARD B. LILLICH & FRANKNEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW AND POLICY 65-67 (I 979); RICHARD B. LILLICH, INTERNATIONAL OF LAW,POLICY,
HUMAN RIGHTS:PROBLEMS AND PRACTICE,117-127 (2d. ed. 1991); Filartigav. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980). Other commentators assert that only the primary protections announced within the Declaration represent customary law. These protections include the prohibition of torture, violence to life or limb, arbitrary arrest and detention, and the right to a fair and just trial (fair and public hearing by an impartial tribunal), and right to equal treatment before the law. GERHARD VON GLAHN, LAW AMONG NATIONS 238 (1992) [hereinafter VON
GLAHN].
‘*SeeDEP’T OF THE ARMY REG. 12- 15, JOINT SECURITY ASSISTANCE TRAINING,para. 13-3.
” See DoD DIR. 5100.77; see also CJCS INSTR. 5810.01B.
Chapter 10 Humurz right.^
2.
Slavery or slave trade,

3.
Murder of causing the disappearance of individuals,

4.
Torture or other cruel, inhuman, or degrading treatment or punishment,

5.
All violence to life or limb,

6.
Taking of hostages,

7.
Punishment without fair and regular trial,

8.
Prolonged arbitrary detention,

9.
Failure to care for and collect the wounded and sick,”

10.Systematic racial discrimination, or
11 .A consistent pattern of gross violations of internationally recognized human rights.

D.
A judge advocate must also recognize that “state practice” is a key component to a human rights violation. What amounts to state practice is not clearly defined by the law. However, it is relatively clear that acts which directly harm individuals, when committed by state agents, fall within this definition.” This results in what may best be understood as a “negative” human rights obligation-to take no action that directly harms individuals. The proposition that U.S. forces must comply with this “negative” obligation is not inconsistent with the training and practice of U.S. forces. For example, few would assert that

U.S. forces should be able to implement plans and policies which result in cruel or inhumane treatment of civilians. However, the proposition that the concept of “practicing, encouraging, or condoning” human rights violations results in an affirmative obligation-to take affirmative measures to prevent such violations by host nation forces or allies-is more controversial. How aggressively, if at
l2This provision must be understood within the context from which it derives. This is not a component of the Restatement list, but instead comes from Article 3 of the Geneva Conventions. As such, it is a “right” intended to apply to a “conflict” scenario. As such, the JA should recognize that the “essence” of this right is not to care for every sick and wounded person encountered during every military operation, but relates to wounded and sick in the context of some type of conflict. As such, it is legitimate to consider this obligation limited to those individuals whose wound or sickness is directly attributable to U.S. operations. While extending this protection further may be a legitimate policy decision, it should not be regarded as obligatory.
“See supra note 1, Reporters’ Notes.
Chapter 10 Hurnun Rights
all, must U.S. forces endeavor to prevent violations of human rights law by third parties in areas where such forces are operating?
E.     This is perhaps the most challenging issue related to the intersection of military operations and fundamental human rights: what constitutes “encouraging or condoning” violations of human rights? Stated differently, does the obligation not to encourage or condone violations of fundamental human rights translate into an obligation on the part of U.S. forces to intervene to protect civilians from human rights violations inflicted by third parties when U.S. forces have the means to do so? The answer to this question is probably no, despite plausible arguments to the contrary. For the military practitioner, the undeniable reality is that resolution of the question of the scope of U.S. obligations to actively protect fundamental human rights rests with the National Command Authority, as reflected in the CJCS Standing Rules of Engagement. This resolution will likely depend on a variety of factors, to include the nature of the operation, the expected likelihood of serious violations, and perhaps most importantly, the existence of a viable host nation authority.
F. Potential responses to observed violations of fundamental human rights include reporting through command channels, informing Department of State personnel in the country, increasing training of host nation forces in what human rights are and how to respond to violations, documenting incidents and notifying host nation authorities, and finally, intervening to prevent the violation. The greater the viability of the host nation authorities, the less likelihood exists for this last option. However, judge advocates preparing to conduct an operation should recognize that the need to seek guidance, in the form of the mission statement or rules of engagement, on how U.S. forces should react to such situations, is absolutely imperative when intelligence indicates a high likelihood of confronting human rights violations. This imperative increases in direct correlation to the decreasing effectiveness of host nation authority in the area of operations.
111. HUMAN RIGHTS TREATIES: THE ASPIRATION
A. The original focus of human rights law must be re-emphasized. Understanding this original focus is essential to understand why human rights treaties, even when signed and ratified by the United States, fall within the category of “aspiration” instead of “obligation.” That focus was to protect individuals fi-om the harrnhl acts of their own governments.14 This was the “groundbreaking”
l4 See supra note 1 and accompanying text.
283
Chapter 1I) I-lunlun Rights
aspect of human rights law: that international law could regulate the way a government treated the residents of its own state. Human rights law was not originally intended to protect individuals from the actions of any government agent they encountered. This is partly explained by the fact that historically, other international law concepts provided for the protection of individuals from the cruel treatment of foreign nations.”
B. It is the original scope of human rights law that is applied as a matter of policy by the United States when analyzing the scope of human rights treaties. In short, the United States interprets human rights treaties to apply to persons living in the territory of the United States, and not to any person with whom agents of our government deal in the international community.16 This theory of treaty interpretation is referred to as “non-extraterritoriality.”” The result of this theory is that these international agreements do not create treaty based obligations on U.S. forces when dealing with civilians in another country during the course of a contingency operation. This distinction between the scope of application of fundamental human rights, which have attained customary international law status, versus the scope of application of non-core treaty based human rights, is a critical aspect of human rights law judge advocates must grasp.
C. While the non-extraterritorial interpretation of human rights treaties is the primary basis for the conclusion that these treaties do not bind U.S. forces outside the territory of the U.S., judge advocates must also be familiar with the concept of treaty execution. According to this treaty interpretation doctrine,
See supra note 1 at Part VII, Introductory Note.
l6 While the actual language used in the scope provisions of such treaties usually makes such treaties applicable to “all individuals subject to [a states]jurisdiction” the United States interprets such scope provisions as referring to the United States and its territories and possessions, and not any area under the functional control of United States armed forces. This is consistent with the general interpretation that such treaties do not apply outside the territory of the United States. See supra note 1 at •.322(2)and Reporters’ Note 3; see also CLAIBORNE PELL REPORTON THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS, S. EXEC. COC. NO. 102-23(Cost Estimate) (This Congressional Budget Office Report indicated that the Covenant was designed to guarantee rights and protections to people living within the territory of the nations that ratified it).
”See Theodore Meron, Extraterritorialiv of Human Rights Treaties, 89 AM. J. INT’L L. 78-82 (1995). See also CENTER FOR LAW AND MILITARYOPERATIONS, THEJUDGEADVOCATE GENEML’SSCHOOL, UNITED STATES ARMY, LAW AND MILITARYOPERATIONS IN HAITI, 1994-1995–LESSONS LEARNEDFOR JUDGE ADVOCATES 49 (1995) [hereinafter CLAM0 HAITIREPORT], citing the human rights groups that mounted a defense for an Amy captain that misinterpreted the Civil and Political Covenant to create an affirmative obligation to correct human rights violations within a Haitian Prison. Lawyers’ Committee for Human Rights, Protect or Obey: The United States Army versus CPT Lawrence Rockwood 5 (1995) (reprinting an amicus brief submitted in opposition to a prosecution pretrial motion).
284 Chapter 10 Human Rights
although treaties entered into by the U.S. become part of the “supreme law of the land,” ‘”some are not enforceable in U.S. courts absent subsequent legislation or executive order to “execute” the obligations created by such treaties.19
D. This “self-execution” doctrine relates primarily to the ability of a litigant to secure enforcement for a treaty provision in U.S. courts.’O However, the impact
l8 US. CONST. art VI. According to the Restatement, “international agreements are law of the United States and supreme over the law of the several states.” Supra note 1, at $1 I 1. The Restatement Commentary states the point even more emphatically: “[Tlreaties made under the authority of the United States, like the Constitution itself and the laws of the United States, are expressly declared to be ‘supreme Law of the Land’ by Article VI of the Constitution.” Id. at cmt. d.
l9 The Restatement Commentary indicates:
In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations. Accordingly, the intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementation by legislation or appropriate executive or administrative action. If the international agreement is silent as to its self-executing character and the intention of the United States is unclear, account must be taken of any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and any expression by the Senate or the Congress in dealing with the agreement. After the agreement is concluded, often the President must decide in the first instance whether the agreement is self-executing, ie.,whether existing law is adequate to enable the United States to carry out its obligations, or whether further legislation is required . . . Whether an agreement is to be given effect without further legislation is an issue that a court must decide when a party seeks to invoke the agreement as law . . .
Some provisions of an international agreement may be self-executing and others non-self- executing. If an international agreement or one of its prqvisions is non-self-executing, the United States is under an international obligation to adjust its laws and institutions as may be necessary to give effect to the agreement.
Supranote 1, at cmt h. See also Foster v. Neilson, 27 U.S. (2 Pet.) 253,254 (1 829). In Foster,the Court focused upon the Supremacy Clause of the United States Constitution and found that this clause reversed the British practice of not judicially enforcing treaties, until Parliament had enacted municipal laws to give effect to such treaties. The Court found that the Supremacy Clause declares treaties to be the supreme law of the land and directs courts to give them effect without waiting for accompanying legislative enactment. The Court, however, conditioned this rule by stating that only treaties that operate of themselves merit the right to immediate execution. This qualifying language is the source of today’s great debate over whether or not treaties are self-executing; seealso DEP’T OF ARMY, PAMPHLET 27-1 61-1, LAW OF PEACE,VOLUMEI para. 8- 23 (1 September 1979) [hereinafter DA PAM 27-161-11, which states:
[wlhere a treaty is incomplete either because it expressly calls for implementing legislation or because it calls for the performance of a particular affirmative act by the contracting states, which act or acts can only be performed through a legislative act, such a treaty is for obvious reasons not self-executing, and subsequent legislation must be enacted before such a treaty is enforceable. . . On the other hand, where a treaty is full and complete, it is generally considered to be self-executing. . .
“See supra note 1, at cmt h.
Chapter 10
Hunlarl Rights
on whether a judge advocate should conclude that a treaty creates a binding obligation on U.S. forces is potentially profound. First, there is an argument that if a treaty is considered non-self-executing, it should not be regarded as creating such an obligation.” More significantly, once a treaty is executed, it is the subsequent executing legislation or executive order, and not the treaty provisions, that is given effect by U.S. courts, and therefore defines the scope of
U.S.
obligations under our law.”

E.
The U.S. position regarding the human rights treaties discussed above is that “the intention of the United States determines whether an agreement is to be self-executing or should await implementing legi~lation.”~~

Thus, the United States position is that its unilateral statement of intent, made through the vehicle of a declaration during the ratification process, is determinative of the intent of the parties. Accordingly, if the United States adds such a declaration to a treaty, the declaration determines the interpretation the United States will apply to determining the nature of the ~bligation.~~
F.     The bottom line is that compliance with international law is not a suicide pact nor even unreasonable. Its observance, for example, does not require a military force on a humanitarian mission within the territory of another nation to immediately take on all the burdens of the host nation government. A clear example of this rule is the conduct of U.S. forces Operation UPHOLD DEMOCRACY in Haiti regarding the arrest and detention of civilian persons. The failure of the Cedras regime to adhere to the minimum human rights
2′ There are several difficulties with this argument. First, it assumes that a U.S. court has declared the treaty non-self-executing, because absent such a ruling, the non-self-executing conclusion is questionable: “[Ilf the Executive Branch has not requested implementing legislation and Congress has not enacted such legislation, there is a strong presumption that the treaty has been considered self-executing by the political branches, and should be considered self-executing by the courts.” Supra note 1, at $1 11, Reporters Note 5. Second, it translates a doctrine of judicial enforcement into a mechanism whereby U.S. state actors conclude that a valid treaty should not be considered to impose international obligations upon those state actors, a transformation that seems to contradict the general view that failure to enact executing legislation when such legislation is needed constitutes a breach of the relevant treaty obligation. “[A] finding that a treaty is not self-executing (when a court determines there is not executing legislation) is a finding that the United States has been and continues to be in default, and should be avoided.” Id.
22 “[Ilt is the implementing legislation, rather than the agreement itself, that is given effect as law in the United States.” Id. Perhaps the best recent example of the primacy of implementing legislation over treaty text in terms of its impact on how U.S. state actors interpret our obligations under a treaty was the conclusion by the Supreme Court of the United States that the determination of refugee status for individuals fleeing Haiti was dictated not pursuant to the Refugee Protocol standing alone, but by the implementing legislation for that treaty -the Refugee Act. United States v. Haitian Centers Council, Inc. 113 S.Ct. 2549 (1993).
See supra note 1 at 5 13 1.
24 See supra note 1 at 3 111, cmt.
Chapter I0 Human Rights
associated with the arrest and imprisonment of its nationals served as part of the United Nation’s justification for sanctioning the operation. Accordingly, the United States desired to do the best job it could in correcting this condition, starting by conducting its own detention operations in fill compliance with international law. The United States did not, however, step into the shoes of the Haitian government, and did not become a guarantor of all the rights that international law requires a government to provide its own nationals.
G. Along this line, the Joint Task Force (JTF) lawyers first noted that the Universal Declaration of Human Rights does not prohibit detention or arrest, but simply protects civilians from the arbitrary application of these forms of liberty denial.” The JTF could detain civilians who posed a legitimate threat to the force, its mission, or other Haitian civilian^.^^
H. Once detained, these persons become entitled to a baseline of humanitarian and due process protections. These protections include the provision of a clean and safe holding area; rules and conduct that would prevent any form of physical maltreatment, degrading treatment, or intimidation; and rapid judicial review of their individual detention.” The burden associated with filly complying with the letter and spirit of the Universal Declaration of Human Rights2″ermitted the United States to safeguard its force, execute its mission, and reap the benefits of “good press.”29
Z5 Common Article 3 does not contain a prohibition of arbitrary detention. Instead, its limitation regarding liberty deprivation deals only with the prohibition of extrajudicial sentences. Accordingly, the judge advocates involved in Operation Uphold Democracy and other recent operations looked to the customary law and the Universal Declaration of Human Rights as authority in this area. It is contrary to these sources of law and United States policy to arbitrarily detain people. Judge advocates, sophisticated in this area of practice, explained to representatives from the International Committee of the Red Cross the distinction between the international law used as guidance, and the international law that actually bound the members of the Combined Joint Task Force (CJTF). More specifically, these judge advocates understood and frequently explained that the third and fourth Geneva Conventions served as procedural guidance, but the Universal Declaration (to the extent it represents customary law) served as binding law.
26 ‘LThe newly arrived military forces (into Haiti) had ample international legal authority to detain such persons.” Deployed judge advocates relied upon Security Council Resolution 940 and article 51 of the United Nations Charter. See CLAM0 HAITIREPORT, supra note 17, at 63.
27 See supra note 17 at 64-65.
Reprinted for reference purposes in the Appendix is the Universal Declaration of Human Rights. This is intended to serve as a resource for judge advocate to utilize as a source of law to “analogize” from when developing policies to implement the customary international law human rights obligations set out above.
29 The judge advocates within the 10th Mountain Division found that the extension of these rights and protections served as concrete proof of the establishment of institutional enforcement of basic humanitarian considerations. This garnered “good press” by demonstrating to the Haitian people, “the human rights groups,
287
I.     Accurate articulation of these doctrines of non-extraterritoriality and non-self- execution is important to ensure consistency between United States policy and practice. However, a judge advocate should bear in mind that this is background information, and that it is the list of human rights considered customary international law that is most significant in terms of policies and practices of
U.S. forces. The judge advocate must be prepared to advise his or her commander and staff that many of the “rights” reflected in human rights treaties and in the Universal Declaration, aIthough not binding as a matter of treaty obligation, are nonetheless binding on U.S. forces as a matter of customary international law.
and the International Committee of the Red Cross (ICRC) that the US. led force” was adhering to the Universal Declaration principles. See OPERATION UPHOLD DEMOCRACY, DIVISION,
1OTH MOUNTAIN OFFICE OF THE STAFF JUDGE ADVOCATE MULTINATIONAL REPORT7-9 (March 1995)
FORCE HAITI AFTER-ACTION [I OTH MOUNTAIN AAR].
288
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Human Rights
APPENDIX A
UNIVERSAL DECLARATION OF HUMAN RIGHTS
Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice, and peace in the world.

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of
mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men and women and have determined to promote social
progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of
universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this
pledge,
Now, therefore,

The General Assembly
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall
strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national
and international, to secure their universal and effective recognition and observance, both among the peoples of Member
States themselves and among the peoples of territories under their jurisdiction.

Article 1
All human beings are born fiee and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinctions of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international statusof the country territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and the security of person.
C’hapfer10 Hun~unRights
Article 4
No one shall be held in slavery or servitude, slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are .entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11
1.
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence.

2.
No one shall be heidguilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13
1.
Everyone has the right to freedom of movement and residence within the borders of each state.

2.
Everyone has the right to leave any country, including his own, and to return to his country.

Chapter I0 Huwrun Rights
Article 14
I. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
1.
Everyone has the right to a nationality.

2.
No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16
1.
Men and women of full age, without any limitation due to race, nationality or religion, have the right to many and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2.
Marriage shall be entered into only with the free and full consent of the intending spouses.

3.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17
1.
Everyone has the right to own property alone as well as in association with others.

2.
No one shall be arbitrarily deprived of his property.

Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of kontiers.
Article 20
1.
Everyone has the right to freedom of peaceful assembly and association.

2.
No one may be compelled to belong to an association.

Article 21
1.
Everyone has the right to take part in the government of his country, directly or through freely chosen representative.

2.
Everyone has the right of equal access to public service in his country.

3.
The will of the people shall be the pasis of the authority of government; this will shall be expressed in periodic and

genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
1.
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

2.
Everyone, without any discrimination, has the right to equal pay for equal work.

3.
Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4.
Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with
Pay.
Article 25
1.
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26
1.
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2.
Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3.
Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27
I. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Chapter 10 Humun Rights
Article 29
1.
Everyone has duties to the community in which alone the free and full development of his personality is possible.

2.
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3.
These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
NOTES

Chapter 10
Humun Rights

NOTES

Chapter 10
Hun~unright,^

NOTES

Chaptev 10
Human Rights

INDEX

Afghanistan………………………………43.47. 64. 84. 85. 90
Aggression……………………………………………..3 41. 214
Al-Qaida ……………………………………………………….86. 90
Andersonville………………………………………..7 109. 202
Anticipatory self-defense ………………………………………45
Article 2(4) …………………………………………11. 39. 45. 48
Article 51 ……………….44. 45.46. 47. 142. 166. 173. 194
Assassination …………………………………………………… 193
Auxiliary personnel …………………………………………….. 7 1

Belligerency………………………………………………………..89
Belligerent ……………………… 1. 62. 67. 89. 102. 117. 194
Biological Weapons ……………………………….2 I. 163. 187
Biological Weapons Convention ……………..2 1. 163. 187
Booby Traps ……………………………………………………..I8 I
Bosnia …..66. 82. 93. 144. 186.200. 203. 209.216.219.

227.241. 246
Caroline ……………………………………………………………..45 Chapter VI …………….. 39. 40. 41. 42. 186. 243. 246. 252 Chapter VII ……………………39. 40. 41. 42. 186. 246. 252 Chemical Weapons …………..21. 163. 183. 184. 186. 2 14 Chemical Weapons Convention ………..2 1. 184. 186. 2 14 Civilian Internees …62.75.80.90.94.97. 102. 137. 153 Civilians 22. 53.60. 80. 82.87. 138. 139. 140. 157. 170.
171. 199 Cluster Bombs ………………………………………………….. 182 Code of Conduct 103. 109. 110. 111. 112. 113.114. 115 Combatant……………………………….48. 91. 169. 189. 245 Command Responsibili ty …200.201.202.217.218. 220 Common Article 2 ..5. 11. 13. 21.26.27. 37.38. 39.40.
45.48. 60. 61.62.63.64. 65.69.81. 82. 83. 84. 85.
86. 191. 193.219. 242 Common Article 3 28.29. 38.40.41.43. 62.63. 64. 65.
66.67.69.70.71. 80. 84. 85.86. 122. 143. 144. 145.
177. 190. 191.204.212.213.214.223.248.249.
25 1. 266 Conventional International Law …………………………… 20 Conventional Weapons Treaty ………………………………. 22 Crimes against Humanity ………………………21 1.212. 215 Cultural Property 21. 137. 163. 172. 173. 175. 176. 193.
Customary International Law ………………20. 24. 30. 153

Detainees …..62.75. 81.91. 92. 105. 106. 137. 153.262.
264. 265
Discrimination…………………………………………………. 166
Dislocated civilian ………………………………………………81
Distinction……………………………………………89. 164. 166
Dunant. Hemy ……………………………………………… 13. 51

E
Emblems……………………………………………………… 176
Enduring Freedom ………………………………. 47, 8 1. 85, 90
Enemy Property …………………………………………………189
Espionage …………………………………………………………193

F
Foreign Relations Law …………2.20, 247.251. 279, 280

C
General Assembly 35.37,38,40,41,42,214,246,251. 289 General Order 100 ……………………………………………….13 Geneva Convention I …. 13,22, 137, 170, 171,225.226. 239 Geneva Convention LII …………………. 170. 225. 226, 267 Geneva Convention IV ….. 137, 141, 146, 147. 149, 155, 158, 171,225, 239 Geneva Protocol of 1925 ………………………………. 21, 183 Genocide…..210,211,212.214,216,247,254,280, 281 Grave Breach of Geneva Conventions ….. 155, 208.210. 213, 223 Grotius………………………………………………………………… 8 Gulf War ….82. 95, 98. 99, 100, 113, 147, 168. 188. 192.
203. 207
H
Hagenbach. Peter von ………………………………. 20 218 Hague Convention .. 5, 10, 11, 13.21,75, 124, 137, 156, 163, 176, 178. 193, 199,223.225,239. 254 Hague Cultural Property Convention .21,172, 173.193. 245 Haiti.43, 93,97, 103, 186,240.245,259,263,284,286,
287. 288 Herbicides…………………………………………………….. 187 Hors de Combat ………………………………………………… 171 Hostage Case …………………………………………………… 218 Human Rights30,64. 100, 138,240,241.244.247,249, 264,266,272,279,281. 284 Human Rights, Customary Law …………………………. 281 Human Rights, Universal Declaration of, text ………..289 Humanity…. 164, 168,201, 208,209.211,212,215, 216
Defectors…………………………………………………………… 89
Deserters ……………………………………………………………. 89

Identity Card ……………………………………………………….87

. .
Incendmes ……………………………………………………… 182
Indiscriminate…………………………………….. 157, 163, 170
Installations Containing Dangerous Forces ……. 175, 176
Internal Armed Conflict ………………………….. 28, 80, 213
International Armed Conflict 19,26,51, 56,75, 80, 199,

213,226, 242 International Court of Justice ………….. 38, 144, 187, 248 International Criminal Cou rt …. 203,212,214,215,219,
222, 227
Invasion ………………………………………… 64, 82, 148, 193
Iraq ………..42,43, 44,46, 95,98,99, 113, 147, 148, 205
Iraqi Freedom ………………………… 82, 148, 174, 186, 192
Iraqi War Crimes Court ……………………………………… 205

Jus adBelIum ……………………….4. 5. 6. 7. 10. 11. 12. 13
Jus in Bello …………………………… 4. 5. 6. 11. 12. 13. 164
Just War ……………………………………………. 7. 8. 9. 12. 35

Kellogg-Briand Pact ………………………………………. 11. 35
Kosovo ……………………………………………….. 43. 83. 182

Landmines ……………………………………………………….. 179 Lasers …………………………………………………………….. 183 Law of Land Warfare ….19.25. 51. 54. 66.75. 116. 137.
163. 191. 199.220. 239
League of Nations ……………………………………. 10. 11. 35
Levee en mass ……………………………………………… 53. 12 1
Libya ……………………………………………………………….. 46
Lieber. Francis ………………………………….. 13. 77. 78. 164

Macedonia …………………………………………………………. 83
Malrnedy …………………………………………………….. 5. 165
Martial Law Courts ……………………………………………224
Means and Methods …………………………………………….21
Medical

Aircraft ………………………………………………………….67
Auxiliaries …………………………………………………….. 62
Material …………………………………………………………66
Personnel …………………….51. 61. 62. 63. 89. 171. 172
Mercenaries…………………………………………………..89
Military Commission ..105.205.218. 223. 224.225. 260
Military Government Courts ……………………………….224
Military Necessity …………………………………………….. 164
Military Operations Other Than War ……………. 239. 244
Milosevic…………………………………………………… 2 19
Mines……………………………………………………… 180. 181

National Security Strategy ……………………………………. 47
NEO …………………………………………………………………. 48
Neutral Countries …………………………………………71. 172

Non-Combatant Evacuation ………………………………… 48
Non-extraterritoriality………………………………………..284
Nuclear Weapons ………………………………………………187
Nullapoena sine lege ………………………………………. 206
Nullurn crimen sine lege ………………………………. 206, 207
Nuremberg … 11. 165. 199.200.202.203.206.208. 227

Objectives ……………………………………………………….. 138
Occupation…………………………………… 28 148. 149. 153
Osirak Reactor ……………………………………………………46

Panama…………………..81. 82. 97. 99. 186. 203. 240. 259 Perfidy…………………………………………………………….. 190 Prisoners of War … 19.22. 56. 59.62.75. 76. 77. 78.79.
80. 82. 88. 89.90.94.95.97.98.99. 100. 101. 102.
103. 106. 108. 110. 111. 115. 116. 117. 123.124.
128. 131. 137. 163. 169. 170. 171. 199.226. 245
Accountability……………………………………………… 101
Discipline……………………………………………………. 104
Escape ………………………………………………………… 106
Interrogation………………………………………………….. 97
Repatriation…………………………………………………. 108
Transfer ………………………………………………………. 102

Proportionality ……………………………….44. 157. 164. 166 Protect and Respect ……………………………………….22,139 Protected Persons …………………………… 52. 147. 149. 165 Protocol I …14.22.23.27.29. 30. 52. 53. 56.68. 70.80.
84.85. 87. 139. 140. 141. 142. 144. 145. 156. 157.
158. 179. 180. 181. 182. 183. 190. 191. 194. 199.
209.212.219. 223 Protocol I -US view …………………………………………… 23 Protocol 1114.22.29. 30. 80. 84. 85. 140. 145. 179. 180.
181. 182.212. 223
Red Cross …. 1. 13.22.27. 53. 60.70. 71.75. 76. 78. 87.
88. 89. 94.96. 116. 172. 176. 193. 199.209.287.
288 Refugees………………………………………..8 1 269. 270. 272 Rendulic…………………………………………………….165. 167 Reprisals……………………………………………….94,194
101.
Retained Personnel ……61. 62. 75. 88. 90. 103. 113. 137. 153 ‘
Riot Control Agents ………………………………………….. 184 Ruses……………………………………………………………….187 Rwanda ….. 100. 186.200.203.211.212. 216.219.222.
227
Saboteurs…………………………………………………………… 89 Secretary General …………………………………203, 204. 227 Security Council ….37. 38.40.41.42.43.44.45.48.82.
131. 186.200.203.204.227.246. 287 Self-defense…………………………………………………………. 7 Self-Executing Treaties ……………………………………… 285 Shipwrecked………………………19. 51. 124. 163. 171. 199
298
Index
Sierra Leone ………………………………………. 203..222..227
Somalia……………………..84. 93. 186. 240. 246. 261. 263
Sovereignty…………………………………………………………25
Spies …………………………………………………………. 89, 155
Sun Tzu ……………………………………………………….12, 217

T

Taliban ………………………..47, 81, 84, 85, 86, 90, 92, 227
Targeting Method ………………………………………… 2 139
Terrorism ………………………………………………. 39, 85, 105
Terrorists…………………………………………………………… 86
Tokyo Tribunal …………………………………………….11, 202
Treachely ……………………………………………………….. 190
Treaties, Self-Executing ……………………………………… 285
Triage………………………………………………………………… 56
Tribunal, Article 5 28, 38,42,44,45,46, 47,77, 85, 90,

91, 116, 117, 119, 122, 123, 124, 128, 141, 142, 166, 173, 176, 194,214, 290
U
U.N. personnel……………………………………………………. 89 United Nations Charter …… 11.36. 37.46.227.280. 287 Universal Declaration of Human Ri &ts …137.239.248.
249.251.262.279.280.281.28?. 289 Universal Declaration of Human Rights. text …………289 Unnecessary Suffering …………………………….. 168. 178
V

Vietnam …..54.60. 62. 64. 68. 81. 82.95. 101. 102. 105.
106. 110. 111. 112. 115. 187.203.206. 221
W

War as Fact ………………………………………………..9. 13. 35 War Courts ……………………………………………………….224 War Crime …..1I. 66.93.97.98. 99. 107. 113. 199.200.
201.202.203.208.209.213.216.218. 222 War Crimes
Categories
ICC…………………………………………………………. 212
ICTR ……………………………………………..203 2 1 1
ICTY ……………………………………….. 144. 200. 209
Nuremberg ………………………………………………. 208

Defenses ……………………………………………………… 216

Forums for Prosecution ………………………………….. 221 War Crimes Act of 1996……………………………. 200. 222 War trophies ……………………………………………………… 96 Wounded and Sick …… 1. 19.22.51.52. 55.57. 89. 124.
163. 171. 175. 199. 258
Y

Yamashita …………………. 5. 200. 207. 2 18. 220. 224. 2

26

cover page

Cover page
This annotated casebook is designed for use in conjunction with Department of the Army Field Manual 27-10, The Law of Land Warfare, July 1956.
TABLE OF CONTENTS

-PAGE Table of Cases ……………………………………… iii -v PART I -AN INTRODUCTION
1.      Scope of the course …………………………. 1

2.      The law of belligerent occupation …………….. 1

3.      Evidence of the law of belligerent occupation; the legal status of F’M 27-10……………….b…..eb 2
4.      The Hague Conventions of 1907 and the Geneva Con- ventions of 1949; binding upon whom …………… 3
PART I1 -AN UNDERSTANDING OF TERMS
1.     What is a military government? . . ….. . ……. . ….

2.      What is a civil affairs administration? ………..

PA#r III -THE ESTABLISHMENT OF AN ADMINISTRATION FOR OCCUPIED AREAS
1.      Its importance to commanders ………………….

2.      Its importance to judge advocates ……………..

3.      Its importance to generations of future Americans..
4.      Its legal basis
……………………b…..bb…

Pm IV -THE LAW OF BELLIGERENT OCCUPATION: COP.IIMENCm AND TrnINATION
1.      The commencement; the occupation of territory …..
2.      The termination ……………………………..

PART V -THE STATUS OF OCCUPIED TEERITORP; ITS INWLBITANTS; ITS LAWS
1.      Sovereignty and other considerations ..,………..

2.      The inhabitants of occupied territory; allegiance
and duty ……………………………………

3.      Application of existing laws ………………….

PAFti’ VI -TRE MILITARY GOVERNOR; LEGISLATIVE AUTHORITY;
corns
1.      The Military Governor; the President1 s alter ego.. .
2.      Occupation laws, civil and criminal ……………

3.      Public officials, judges, and local courts ……..

4.
Occupation courts ……………………………

.PAGE

PAFU’ VII .PROPERTY AND PROCURENENI’ IN OCCUPIED TERRITORY

1. Property generally …………………………..

2. The basic discrimination; public vs. private ……
3.
Public property ……………………………..
4.
Private property …………………………….
5.
Procurement of services ………………………
Pm VIII .PUBLIC FINANCE
1.
Taxes ………………………………………
2.
Customs duties ………………………………
3 . Contributions ……………………………….

4.
Currency ……………………………………
5.
State debts …………………………………
1.
Civil matters ……………………………….
2.
Criminal matters …………………………….
PAKI’ X .UNCOEJVE?JTIONAL AND IWULAR COMBATANTS
1.
General …………………………………….
2.
Unconventional combatants …………………….
3. Irregular combatants; partisans. and guerrillas …
TABLE OF CASES

Aboitiz & Co. v. Price …………………………………. 102. 108

Acheson v.Kuniyuka ……………………………………. 42

Acheson v.Wohlmuth ……………………………………. 42

Agate v .Soc. Electrica Coloniale Italian0 ……………….~ 97

Alvarez Y .Sanchez v.United States ……………………… 55

Anglo-Chinese Shipping Co .v . United States ………………. 95

Bank of Ethiopia v. National Bank of Egypt and Liguori …….. 34

Belgian State v . Botte …………………………………. 49

Burke v.Miltenberger ………………………………….. 36

Callwood v . Virgin Islands National Bank …………………. 54

Cobb v . United States ………………………………….. 42

Coble v .United States …………………………………. 53

Coleman v. Tennessee ………………………………..46. 48. 49. 56

Criminal Files (~reece) Case …………………………..e. 111

Cross v.Harrison ……………………………………… 36

Dalldorf and Others v .The Director of Prosecutions ……….. 54

DeAlwis v. DeAlwis …………………………………….. 51

De Camera v.Brooke ……………………………………. 96

DIEscury v .Levensoerzekerings-Naatschappij Utrecht Ltd …….. 45

Dooley v.United States ………………………………… 101

Double Jeopardy Case …………………………………… 71

Dow v . Johnson ……………………………………..49. 50. 56

Eisner v. United States ………………………………… 104

Ex Farte Quirin ……………………………………….. 114

Fleming v.Page ……………………………. 37. 41. 42. 43. 44. 101

FeyeraMv .McGrath …………………………………… 43

French State v.Establissments Monmousseau ……………….. 74

Gates v .Goodloe ………………………………………. 108

Gibbs et a1. v .Rodriguez et a1………………………….. 107

Grapeshot. The ………………………………………… 72

Haw Pia v. China Banking Corp …………………………..105 107. 108

Hefferman v . Porter ……………………………………. 110

Hirota v.MacArthur ………………………………….. 72. 95

Hoffman Case ………………………………………….. 120

Holdowanskl v. Holdowanski ……………………………… 51

Housman v.Koninklijke Rotterdamse Lloyd …………………. 46

In re Directors of the Amsterdamse Ballast Maatschappij ……. 85

In re Esau ……………………………………………. 84

In re Fiebig ………………………………………….. 85

In re Hoffman …………………………………………. 119

In re Krauch and Others ………………………………… 85

In re Van Lewinski (called Von ans stein) …………………. 120

In re List and Others …………………………….. 29. 31. 116. 120

In re Lo Dolce ………………………………………… 48

PAGE
–

In re Policeman Vollema …………………………………

In re Martin ……………………………………………

In re Rieger …………………………………………..

In re S .S.Member Ahlbrecht …………………………….

In re Wuistz …………………………………………..

Johansen v.Gross ………………………………………

Johnson v. Eisentrager ………………………………….

Juragua Iron Co . v. United States ………………………..

Keely v .Sanders ……………………………………….

Kent Jewelry Co . v .Kiefer ……………………………….

Kobylinsky v.Banco Di Chivari …………………………..

Kochanski v.Kochanska ………………………………….

Krupp Trial ……………………………………………

(olive Oil case) ……………………………………

L&N
Lamar. Executer v. Browne ……………………………….

Landwehr v .Director of Prosecutions ……………………..

Lasere v .Rochereau …………………………………….

Latza Case …………………………………………….

Liaabue v . Finanze ……………………………………..

–
MacLeod v. United States ……………………………….. 28

Madsen v .Kinsella ……………………. 9. 18. 28. 49. 52. 63. 67. 68

Madsen v .Overholser ……………………………………. 67

Magri v.Di Marco ……………………………………… 97

Mechanics and Traders Bank v. Union Bank …………………. 67

Mitchell v . Harmony ……………………………………. 95. 96

Mrs. Alexander’s Cotton ………………………………… 43. 84

–
N v . Belgian State …………………………………….. 51

41. 49
Neely v. Henkel ………………………………………*..

N.V. De Bataafsche Petroleum Maatschappli & Ors.v .The War
Damage Commission …………………………………. 77. 84

Ochoa v. Hernandez …………………………………….. 52. 53

Pennywit v . Eaton ………………………………………. 67

Peralta v.Director of Frisons ………………………….. 110. 111

Psrez v .Brownell ………………………………………

Planters Bank v.Union Bank ……………………………..

Porter
v . Freudenberg …………………………………..

Public Prosecutor v .Latza and Others …………………….

Public Prosecutor v . Lian ……………………………….

Randsfjordsbrulcet and Jevnaker Kome v .Viul Tresliperi …..
Re ~ondarelli ………………………………………….

Reid v. Covert …………………………………………

Santiago v. Nogueras ……………………………………

Schooner Exchange v .McFaddon ……………………………

Seery v . United States ………………………………….

Soc.Timber. Sac. Zeta. Soc.Ombla v.Ministeri Esteri a Tesoro
Soviet Requisition (~ustria) Case ………………………..

Standard Vacuum Oil Co. v . United States ………………….

State of Netherlands v .Federal Reserve Bank of New Pork …… State of Netherlands
v .Jessen ………………..*……**..*

Statens Jorlovsudvalg v . Pedersen ………………………..

Tan Tuan et a1 . V .Lucens Food Control Board ………………

Thirty Hogsheads of Sugar ……………………………….

Thorington v. Smith ……………………………………..

Trial of Otto Skorzeny and Others ………………………..

United States v .Caltex (philippines) Inc . et a1 ……………

United States v. Reiter …………………………………

United States v. Rice …………………………………..

United States v. Russell ………………………………..

United States v .Schultz ………………………………..

United States v.Sinigar ………………………………..

United States v . Ushi Shiroma ……………………………

Unlted States v . Wilson …………………………………

Vermilya-Brown Co. v. Connell ……………………………

Vitse v. Brasser and the Dutch State ……………………..

V/O Sovfracht v. N.V. Gebr .Van Udens Scheepvaart ………….

Weiss v .Weiss …………………………………………

Wilson v.Jirard ……………………………………….

Wong Man On v. The Commonwealth ………………………….

AN INTRODUCTION

1.
Sco~eof the course. This course is intended to identify and consider a variety of legal problems which the future administration of enemy oc- cupied territory may be expected to produce.

2.
me r e n t occu~ation. Rather than to be stated as a fact,

T it is to be questioned whether there is a law, as such, of belligerent oc­cupatioq. In the early centuries of man’s existence the “lawn for the conquered simply had been the will of the conqueror. The conduct of the wars of the last two centuries, however, seems to indicate, albeit incon- clusively, that the civilized nations of the world have been willing to temper the exercise of their complete power as conquerors in the interest of the cause of humanity and the dictates of public conscience. As nations successively and consistently chose to limit their power, in certain re- spects, in favor of the rights of inhabitants of occupied territory, so there developed, in those certain respects, customs which civilized nations have respected and recognized as obligatory upon them. Thus in those areas of state practice where yesterday’s customs are responsive to the purposes for which war is waged and territory is occupied today, there can be said to be law, i.e., law which delineates not the power of a conqueror but rather his rights, duties, and authority.
The development of a state practice into a custom and thence into law is, to be sure, an unhurried process. For this reason there was little law applicable to a belligerent occupation at the turn of the 19th cen- tury. To fill the void, the civilized nations of the world resorted 30 multilateral conventions he Hague Conventions of 1907 and the Geneva Conventions of 1949 are the two multilateral conventions with which we are now concerned). Thus, a search for the law of belligerent occupation requires reference not only to customary international law but to con- ventional international law as well. The two sources are not, of course, wholly separable, for many provisions of the multilateral: conventions mentioned represent, and were so intended, agreed restatements of accepted customs. But if one understands law to mean a precise rule of conduct, a deviation from which is wrong, there is still to be considered the question whether the provisions of these conventions amount to law. Where it is
rovided, for example, that enemy private property cannot be confiscated Part. 46, HR), it would seem that there is law. But where it is provided that a belligerent occupant shall respect, unless absolutelv urevented, the local laws of the country occupied (art. 43, HR); that the quantum of requisitions shall be in ~rouortion to the resources of the country (art. 52, HR); and that taxes are to be collected, insofar as is ~ossible, in accordance with existing rules of assessment and incidence (art. 48, HR), to illustrate, it may be unrealistic to classify such vague and ab- stract provisions as law, having both a force and a binding effect. It may be more correct to label them what they are, principles and standards, susceptible of producing law only to the extent that civilized nations interpret and apply them uniformly. To date, evidence of such uniformity is lacking. This may be explained, it is believed, by the fact that each new war has involved ideological, sociological and technological con­siderations unlike those of preceding wars. Understandably, with se- curity interests paramount, no nation is willing to commit itself today as to its conduct tomorrow in any but the most general of terms. In the’ last analysis, therefore, it may be correct to conclude that the law of belligerent occupation is derived more from the post-bellurn acts and deeds of conquerors than from pre-bellum conventions, See, Sutherland, Constitutional Powers and World Affairs 80 (1919), McDougal and Feliciano, International Coercion and World Public Order: The General Princi~lesof the Law of War, 67 Yale Law J. 809 (1958).
Stone in his book, Legal Controls of International Conflict (1954), at p. 727, characterizes the law of belligerent occupation as a kind of “legal paradise.” His point is that it is unrealistic to think that the niyriad of challenging questions bound to be raised in a future global war may be answered on the basis of propositions accepted at the turn of the 19th century. Do you agree?
FM 27-10, 18 July 1956, is entitled, nThe Law of Land Warfare Its predecessor, dated 1October 1940, was entitled, “The Rules of Land War­fare.I1 What significance, if any, do you attach to this change? See Fratcher, The New Law of Land Warfare, 22 Missouri Law Rev. 143 (1957j. Von Glabn, The Occuuation of Enew Terrltom 19 (1957).
3. Evidence of the law of belligerent occuuatioo.: the legal status of F1.i 27-10.
-Read: Pars. 1, 7, and 14, FM 27-10.
NOTE

Article 1, Hague Convention No. IV, Respecting the Laws and Customs of War on Land, 18 October 1907, requires the contracting powers to in- struct their armed land forces in the provisions of the Hague Regulations. FM 27-10 has then a legal basis in international law, in that is is issued in compliance with the Hague Regulations and the Geneva Conventions. This is not to suggest, of course, that mere publicatioqof FM 27-10 operates to discharge that requirement. Army Regulations 350-216, 19 December 1956, requires instruction be given in the Geneva Conventions of 1949; no mention is made of the Hague Regulations, however.
As a matter of historical interest, the United States first published a summary of the rules of land warfare in 1863 with the issuance of General Orders No. 100, entitled, “Instructions for the Government of Armies of the United States in the Field,” the so-called Lieber code.
It has been said that FM 27-10 has the binding force of a military order on menbers of the Army of the United States. Fratcher, The New Law of Land Warfare, 22 Missouri Law Rev. 143, 144 (1958). Do you agree? If you do, then is not the question whether there efists a law, as such, of belligerent occupation made moot?
4. The Hague Conventions of 1907 and the Geneva Conventions of 1949; bindinn ulson whom?
-Resd: Foreword and paragraph 5, FM 27-10.
-NOTE
By early 1957 a total of fifty-eight nations had accepted the Geneva Civilians Convention (GC), the convention with which this course will be particularly concerned. For a list of the fifty-eight, see,Von Glahn, The Occupation of hemv Territory L7 (1957). Since then, East Germany, North Korea, and communist Viet-Nam have deposited adherences to (with reservations), and communist China (also with reservations) and the United Kingdom have ratified, all four Geneva Conventions. See, 37 Dept. State Bulletin 861, Nov. 1957.
Suppose a war (or police action), were to involve a number of states, all but one of which had ratified, or adhered to, the Hague Conventions and the Geneva Conventions. Would the fact that one party to the conflict had not accepted those conventions operate to excuse the other states from complying with the provisions of the conventions? See, article 2, Hague Convention No. IV and par. 8c, F’M 27-10. But see, Preamble to FIR and article 158, GC (pr. 6, F’M 27-10), and K~DDTrial, 10 Law Reports of Trials of War Criminals 133 (1949). Was this not the situation in Korea in 1950? See, Baxter, The Role of Law in Modern War, Proceedings of the American Society of Int. Law, 90, 96 (1953).
Do the Geneva Conventions have any application in a civil war? Do the Hague Regulations? See, par. 11, F’M 27-10.
Is the law of belligerent occupation applicable withfn liberated territory? See, Tan Tuan et al, v. Lucena Food Control Boar4 (philippines 1949), Int’l Law Rep., 1951, Case No. 181 (u.s. liberation of Philippines during WW 11). Do the Hague Regulations apply? Do the Geneva Conventions
apply?
AN UEJDERSTANDING OF TERMS
1. What is a military government?
a. Read: Pars. 12, 362, and 368, FM 27-10.
be COMBINED DIRECTIVE FOR MILITARY GOVERNMENT IN GERMANY
PRIOR TO DEFEBT OR SURRF;NDER

w2e Military government will be established and will extend over
all parts of Germany, including Austria, progressively as the forces
under your command capture German territory. Your rights in Germany
prior to unconditional surrender or German defeat will be those of an
occupying power.

“3. a. By virtue of your position you are clothed with supreme
legislative, executive, and judicial authority and power in the areas
occupied by forces under your command. This authority will be broadly
construed and includes authority to take all measures deemed by you
necessary, desirable or appropriate in relation to the exigencies of
military operations and the objectives of a firm military government.

“b. You are authorized at your discretion, to delegate the
‘authority herein granted to you in whole or in part to members of your command, and further to authorize them at their discretion to make ap- propriate subdelegations. You are further authorized to appoint members of your command as Military Governors of such territory or areas as you may determine.
nc. You are authorized to establish such military courts for
the control of the population of the occupied areas as may seem to you
desirable, and to establish appropriate regulations regarding their
jurisdiction and powers.

Appendix A
POLITICAL GUIDE
“1. The administration shall be firm. It will at the same time be just and humane with respect to the civilian population so far as con- sistent with strict military requirements. YGU w5U strongly discourage fraternization between Allied troops and the German officials and popu­lation. It should be made clear to the local population that military occupation is intended; (1) to aid military operations; (2) to destroy Nazism-Fascism and the Nazi Hierarchy; (3) to maintain and preserve law and order; and (4) to restore normal conditions among the civilian popu- lation as soon as possible, insofar as such conditions will not interfere with military operations.
n4. You will take steps to prevent the operation of all Nazi laws which discriminate on the basis of race, color, or creed or political opinions. All persons who were detained or placed in custody by the Nazis on such grounds should be released subject to requirements of security and interests of the individual concerned.
n5. a, The operation of the criminal and civil courts of the Ger- man Reich will be suspended. However, at the earliest possible moment you should permit their functioning under such regulation, supervision, and control as you may determine. The operation of politically objec- tionable courts, e.g., People’s courts, will be permanently suspended with a view to eventual abolition. All Nazi elements will be eliminated from the judiciary.
“6. The replacement of local Government officials who may be re­moved will rest with the Supreme Commander who will decide whether the functioning of the military government is better served by the appointment of officers of the occupation forces or by the use of the services of Germans. Military Government will be effected as a general principle through indirect rule. The principal link for this indirect rule should be at the Bezirk or Kreis level; controls at higher levels will be in- serted at your discretion. Subject to any necessary dismissals, local officials should be instructed to continue to carry out their duties, No actual appointment of Germans to important posts will be made until it has been approved by the Combined Chiefs of Staff. It should be made clear to any German, after eventual appointment to an important post, and to all other Governmental officials and employees, that their con- tinued employment is solely on the basis of satisfactory performance and behavior. In general the entire Nazi leadership will be removed from any post of authority and no pemnent member of the German General Staff nor of the Nazi Hierarchy will occupy any important Governmental or Civil position. The German Supreme Command and General Staff will be disbanded in such a way as will insure thatits possible resuscitation later will be made as difficult as possible.
“7. Subject to the provisions of paragraph 10, and to the extent that military interests are not prejudiced, freedom of speech and press, and of religious worship should be permitted. Consistent with military necessity, all religious institutions shall be respected and all efforts will be made to preserve historical archives, classical monuments, and objects of art.
nlO, a. The propagation of Nazi doctrines and propaganda in any form shall be prohibited, Guidance on German education and schools will be given to you in a se.parate directive.
“be No political activity of any kind shall be countenanced unless authorized by you. Unless you deem otherwise, it is desirable that neither political personalities nor organized political groups, shall have any part in determining the policies of the military adminis- tration, It is essential to avoid any commitments to, or negotiations with, any political elements. German political leaders in exile shall have no part in the administration,
“c. You will institute such censorship and control of Qress, printing, publications, and the dissemination of news or information by the above means and by mail, radio, telephone, and cable or other means as you consider necessary in the interests of military security and in- telligence of all kinds and to carry out the principles laid down in this directive.
Appendix C

REVISED FINBNCIQLGUIDE FOR GEXMMlY
“6. Upon entering the area, you will take the following steps and
will put into effect only such further financial measures as you may
deem to be necessary from a strictly military standpoint:

na. You will declare a general or limited moratorium if you deem such measure to be necessary. In particular, it may prove desirable to prevent foreclosures of mortgages and the exercise of similar remedies by creditors against individuals and small business enterprises.
nb, Banks should be placed under such control as deemed neces- sary bg you in order that adequate facilities for military needs may be provided and to insure that instructions and regulations issued bg military authorities will be fully complied with. Banks should be closed only long enough to introduce satisfactory control, to remove objectionable personnel, and to issue instructions for the determination of accounts to be blocked under paragraph e below. Ac soon as prac- ticable banks should be required to file reports listing assets, lia- bilities, and all accounts in excess of 25,000 marks.
nc. You will issue regulations prescribing the purposes for
which credit may be extended and the terms and conditions governing the
extension of credit. If banking facilities are not available you may
establish such credits or make such loans as you deem necessary for
essential economic activities. These will be restricted to mark credits
and loans.

“d. You will close all stock exchanges and similar.financia.1 institutions.
Pending determination of future disposition, all gold,
foreign currencies, foreign securities,accounts in financial institutions,
credits, valuable papers and all similar assets held by or on behalf of
the following, will be impounded or blocked and will be used or otherwise
dealt with only as permitted under licenses or other instructions which
you may issue:

“1) German national, state, provincial, and local govern-
ments, and agencies and instrumentalities thereof,

“10. The railways, postal, telegraph and telephone service, radio and all government monopolies will be placed under your control and the3.r revenues made available to the military government.
rill. You will, consistent with international custom and usage, maintain existing tax laws, except that discriminatory taxes introduced under the Nazi regime will be abolished. Prompt action should be taken to maintain the inflow of revenue at the highest possible level. You will resume service on the public debt as soon as military and financial conditions permit.
NOTE
This directive was approved by the Combined Chiefs of Staff and transmitted by them to the Supreme Commander, Allied Expeditionary Force, on April 28, 1944.
Do you consider the following definition of a military government to be a correct one: “Military Government connotes a situation where the commander of the armed forces rules a territory from which the enemy armed forces have been expelled? Cf., par. 12, FM 27-10. But cf., Winthropls Militam Law and Precedents 800 (R.eprint 1920), quoted at fn. 13 in Madsen v. Kinsella, pagel8, jn.fr%.
Here the student should begin to consider the following questions:
Is military government a form of administration for an occupied territory having its legal basis in the law of belligerent occupation?
If so, may a military government validly continue to function in territory no longer subject to the law of belligerent occupation, i.e., subsequent to the coming into force of an armistrice or a treaty of peace?
Do we have today a military government in Guam?
In the Ryukyu Islands?
Generally, what is the relationship of the law of belligerent occu­pation to a military government?
These questions should be answerable later on the basis of the ma­terial contained in Part I11 of this book.
2. What is a civil affairs administration?
a. Read: Par. 354, I?M      27-10,
b.     DIRECTIVES AND AGWS ON CIVIL BFFBIRS IN FRANCE
August 25, 1944

“1. As a result of the discussions between American, British and French representatives, agreement has been reached on the practical arrangements for civil affairs administration in Continental France.
“4. In connection with your rights and powers to use or requisition war materials and other property, information has come to hand indicating that the Germans customarily requisition all usable supplies in any area before abandoning it. In exercising your right to use such supplies you should, so far as military necessity permits, give the greatest con- sideration to the economic interests of the civilian population and, where possible, leave at the disposal of the French authorities such transport material, food supplies and building materials as have been requisitioned by the German armies or handed over to them under duress, and which are not needed by you in connection with hlitary operations.
MFMORBNDUM NO. 1FlELATING TO ADMINISTRATIVE AND JURISDICTIONAL QUESTIONS
nl. In areas in which military operations take place the Supreme Allied Commander will possess the necessary authority to ensure that all measures are taken wfiich in his judgment are essential for the success- fhl conduct of his operations. Arrangements designed to carry out this purpose are set forth in the following Brticles.
2. (i) Liberated French Continental territory will be divided into two zones: a forward zone and an interior %one.
n(ii) The forward zone will consist of the areas affected by active military operations; the boundary between the forward Bone and the interior zone will be fixed in accordance with the provisions of paragraph (iv) below.
“(iii) The interior zone will include all other regions in the liberated territory, whether or not they have previously formed part of the forward zone. In certain cases, having regard to the exigencies of operations, military zonesmay be created within the interior zone in accordance with the provisions of Article 5 (ii) below.
“(iv) The Delegate referred to in Article 3 below will effect delimitation of the zones in accordance with French law in such a manner as to meet the requirements stated by the Supreme Allied Commander.
“3. (i) In accordance with Article 1of the ordinance made by the French Committee of National Liberation on March 14, 1944 a Delegate will be appointed for the present theater of operations. Other Delegates may be appointed in accordance with the development of operations.
“4. In the forward zone: (i) The Delegate will take, in accordance with French law, the measures deemed necessary by the Supreme Allied Commander to give effect to the provisions of Article 1, and in particular will issue regulations and make appointments in and removals from the public services.
“(ii) In emergencies affecting military operations or where no French authority is in a position to put into effect the measures deemed necessary by the Supreme Allied Commander under paragraph (i) of this Article, the latter may, as a temporary and exceptional measure, take such measures as are required by military necessity.
n(iii) At the request of the Supreme Allied Commander, the French Military Delegate will take such action under his powers under the state of siege in accordance with French law as may be necessary.
“5. (i) In the interior zone the conduct of the administration of the territory and responsibility therefor including the powers under the state of siege, will be entirely a matter for the French authorities. Special arrangements will be made between the competent French authorities and the Supreme Allied Commander at the latter’s request in order that all measures may be taken which the latter considers necessary for the conduct of military operations.
“(ii) Moreover, in accordance with Article 2 (iii) and (iv), certain portions of the interior zone (known as military zones) may be subjected to a special regime on account of their vital military importance; for example, ports, fortified naval areas, aerodromes, and troop con- centration areas. In such zones, the Supreme Allied Commander is given the right to take, or to cause the services in charge of installations of
military importance to take, all measures considered by him to be neces-
sary for the conduct cf operations, and, in particular, to assure the
security and efficient operation of such installations. Consistent with these provisions, the conduct of the territorial administration and the responsibility therefor will nevertheless be solely a matter for the French authorities.
“7. (i) Members of the French Armed Forces serving in French units with the Allied Forces in French territory will come under the exclusive jurisdiction of the French courts.
“(ii) Persons who are subject to the exclusive jurisdiction of the French authorities may, in the absence of such authorities, be ar- rested by the Allied Military Police and detained by them until they can be handed over to the competent French authorities.
“8. (i) In the exercise of jurisdiction over civilians, the Dele- gate will make the necessary arrangements for ensuring the speedy trial, in coqetent French courts in the vicinity, of such civilians as are alleged to havs committed offenses against the persons, property or security of the Allied Forces.
“(ii) For this purpose the Military Delegate will establish military tribunals as laid down in the ordinance of June 6, 1944 and ensure tneir effective operation. The Supreme Allied Commander will designate the military formations to which he wishes a military tribunal to be attached. The Military Delegate will immediately take the neces- sary measures to allocate these tribunals accordingly. The Supreme Allied Commander will be kept informed of the result of the proce’edings.
“9. (i) Without prejudice to the provisions of Article 13, Allied service courts and authorities will have exclusive jurisdiction over all members of their respective forces.
l1(ii) British or American nationals not’ belonging to such forces who are employed by or who accompany those forces, and are subject to Allied Naval, Military, or Air Force law, will for this purpose be regarded as members of the Allied Forces. The same will apply to such persons, if possessing the nationality of another Allied state provided that they were not first recruited in any French territory. If they were so recruited they will be subject to French jurisdiction in the absence of other arrangements between the authorities of their state and the French authori ti8s.
l1(iii) The Allied military authorities will keep the French authorities informed of the result of proceedings taken against members of the Allied Forces charged with offenses against persons subject to the ordinary jurisdiction of the French courts.
“10. Persons who, in accordance with Article 9, are subject to the exclusive jurisdiction of Allied service courts and authorities may how- ever be arrested by the French Police for offenses against French law, and detained until they can be handed over for disposal to the appro- priate Allied service authority. The procedure for handing over such persons will be a matter for local arrangements.
“11. A certificate signed by an Allied officer of field rank or its equivalent that the person to whom it refers belongs to one of the classes mentioned in Article 9 shall be conclusive.
“12. The necessary arrangements will be made between the Allied military authorities and the competent French authorities to provide machinery for such mutual assistance as may be required in making in- vestigations, collecting evidence, and ensuring the attendance of wit­nesses in relation to cases triable under Allied or French jurisdiction.
“13. Should circumstances require provision to be made for the ex- ercise of jurisdiction in civil matters over non-French members of the Allied Forces present in France, the Allied Governments concerned and the competent French authorities will consult together as to the measures to be adopted.
“14. (i) The Allied Forces, their members and organizations at- tached to them, will be exempt from all direct taxes, whether levied for the state or local authorities. This provision does not ap y to French nationals, nor, subject to the provisions of paragraph (iii P”below to foreigners whatsoever their nationality, resident in France and recruited by the Allied Forces on the spot.
“(ii) Articles imported by the Allied Forces or for their ac- count, or by members of those forces within the limit of their personal needs, or imported by Allied Forces or agencies for the purpose of free relief, will be exempt from customs duties and from all internal dues levied by the customs administration, subject to the provisions of para- graph (iii) below.
“(iii) The application of the above provisons, including any questions relating to the sale to the civilian population of imported
articles referred to in paragraph (ii) above, will form the subject of later negotiations, which, at the request of either party, may be ex­
tended to cover taxes which are not referred to in this article.
“15. The immunity from French jurisdiction and taxation resulting from Articles 9 and 14 will extend to such selected civilian officials and employees of the Allied Governments, present in France in furtherance of the purposes of the Allied Forces, as may from time to time be noti­fied by the Allied military authorities to the competent French authority.
“16. (i) The respective Allied authorities will establish claims commissions to examine and dispose of any claims for compensation for damage or injury preferred in Continental France against members of the Allied Forces concerned (other than members of the French Forces) ,ex­clusive of claims for damage or injury resulting from enemy action or operations against the enemy. These claims commissions will, to the greatest extent possible, deal with these claims in the same way and to the same extent as the competent French authorities would deal with claims growing out of damages or injury caused in similar circumstances by members of the French Armed Forces.
“(ii) The competent Allied and French authorities will later discuss and determine the detailed arrangements necessary for examining and disposing of the claims referred to in this Article.
“(iii) Nothing in this Article contained shall be deemed to prejudice any right which the French authorities, acting on behalf of French claimants, may have, under the relevant rules of international law, to present a claim through diplomatic channels in a case which has been dealt with in accordance with the foregoing provisions of this Article.
“17. (i) The Allied Forces may obtain, within the llmits of what is available, the supplies, facilities and services which they need for the common war effort.
“(ii) At the request of the Supreme Allied Commander, the French authorities will requisition, in accordance with French law (in particular as regards prices, wages, and forms of supplies, facilities end services which the Supreme Allied Commander determines are necessary for the military’needs of his command. However, in the ex­ceptional cases provided for in Article 4 (ii) above, the right of requisition is delegated to the Supreme Allied Commander, who will ex­ercise it in accordance with current French prices and wages.
“(iii) In order that the satisfaction of the local requirements of the Allied Armed Forces may have least possible disruptive effect on the economy of France, the Allied military authorities and the French authorities will consult together, whenever operations permit, as to the stores, supplies and labor which procurement agencies and indiGidual officers and men of the Allied Forces are permitted by the Supreme Allied Commander to obtain locally by requisition, purchase or hire. The Allied military authorities will place such restrictions as are agreed to be necessary on purchases whether by agencies or troops.
“(iv) The French and Allied military authorities shall jointly take the measures necessary to ensure that the provisions of this Article are carried out.
“18. Other questions arising as a result of the liberation of con­tinental French territory which are not dealt with in this memorandum shall form the subject of separate arrangements. Special arrangements will be made to secure the observation by the Allied Forces of the French regulations concerning the exchange of currency and export of capital and wlll be set out in an Appendix which will be attached to this memorandum.
MEMORANDUM NO. 2 RELATING TO CURRENCY
“1. The notes denominated in francs which have been printed for the needs of Allied forces in continental France, as well as the notes denominated in francs which will be printed in the future for the same purpose, will be issued by the Tresor Central Francais.
“2. The notes denominated in francs which have been printed for the requirements of the Allied forces in continental France and which have been placed at their disposal before the signature of this memorandum, will be considered as having been issued by the Tresor Central Francais.
n3. The Allied forces will retain in their possession the notes de- nominated in francs which have been placed at their disposal prior to the signature of this memorandum.
“6. Allied military authorities shall keep a record of use of franc notes placed at their disposal. French authorities shall be kept fully informed, and as regularly as practical, of all expenditures in these notes. A representative shall be specially appointed for this purpose by the Tresor Central Francais.
“7. The Allied forces will not introduce into continental France notes other than those which have been made available to them by the Tresor Central Francais. The notes of the Bank of France used in con- tinental France by the Allied forces will also be subject to the pro- visions of this memorandum. However, if it should become essential in the conduct of military operations to cause notes other than the French franc notes furnished hereunder to be used, such notes shall only be used by the Commander as an exceptional and temporary mehsure and after consultation with the French authorities.
“9. The financial arrangements which will be made with the French authorities in connection with the notes and coins dealt with in this memorandum and with the other costs arising out of operations or activi- ties in continental France shall be negotiated between the U.S. and French authorities on the one hand, and between the British and French authorities on the other.
General Eisenhower was authorized to enter into this agreement with the French Committee of National Liberation (a committee not recognized by the United States Government as the provisional government of France) , prior to the invasion of Europe. Similar agreements-were entered into with the Norwegian, Belgian, and Netherlands governments-in-exile.
Consider now the respects in which a military government and a civil affairs administration are alike, and the respects in which they differ.
Do they have the same legal basis?
Are they concerned with administering the same type of territory?
Are they both but temporary measures?
Is the law of belligerent occupation applicable to a civil affairs administration? Do the Hague Regulations and the Geneva Conventions apply to a civil affairs administration?
Is the distinguishing feature of military government the power to tell people what is law and what is not law and to put them in jail if they do not obey? See, Dfllard, Power and Persuasion: The Role of Military Government, 42 Yale Review 212, 219 (1953).
Do you consider the provisions of a civil affairs agreement to be analogbus to those of a status of forces agreement?
THX ESTBBLISHMENT OF AN ADMINISTRATION FOR OCCUPIED AREAS
1. Its im~ortance to commanders. The primary purpose, the main objec- tive, call it what you will, of military government is to support military operations in the field. Military government is therefore a command re- sponsibility. Specifically, an effective military government administra- tion can render that support by:
a.
Preserving law and order among the local populace with the result that behind-the-lines casualties and losses of, or damage to, military supplies and property are minimized.

b.
Controlling the movement of civilian personnel with the result that civilian interference with military movement, flow of supplies, reinforcements, etc., is reduced.

c.
Establishing health and sanitation controls, with the result that the possibilities of military casualties from diseases and epidemics are minimized.

d.
Re-establishing a friendly and cooperative local government with the result that some occupation troops can be released to field commanders and that a source of local supplies is obtained. See, par. 3a, FM 41-10, Civil Affairs Military Government O~erations, May 1957.

2.
Its imnortance to iud~e advocates. It is the stated policy of the United States so to conduct itself as to preclude allegations that it has violated or even acted in contravention of accepted principles of Inter- national Law concerned with the acts of a military occupant. See, par. 3b, FM 41-10, sunrq.

3.
Its imwrtance to generations of future Americans. A more subtle ob- jective of military government is to implant and foster the national policies of the United States. See, subpar. 3c, FM 41-10, supra.

” * * * In this connection, the view is oftirnes expressed andseri- ously argued, that we are dealing with a defeated enemy and that we need not over-trouble ourselves as to the treatment accorded. A mature re- flection, however, must convince even the most radical that the question involved is really not what is due the inhabitants of the defeated country, but what is owed to the victorious country by the army which represents it. An occupying army in a defeated country is making his- tory which is bound to be written. As that army conducts itself, so is the world largely to regard the country which it represents. If its army is dishonorable in its relations with a fallen foe and treats the population with injustice and subjects the people to a rule more harsh than is necessary for the preservation of order and the establishment of proper decorum and respect, that army and the country it represents are Wand to stand in disrepute before the civilized world. * * *n
Zxcerpt from American Military Government of Occupied Germany, 1918-20, a report of the officer in charge of Civil Affairs, Third Am and American Forces in Germany.
4. Its legal basis.
MALISEN v. KINSZLLA 343 U.S. 341 (1952)
MR. JUSTICE BUBTON delivered the opinion of the Court.
The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of $ 211 of the German Criminal Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction.
The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seek­ing her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the cotrrt which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. 93 F. Supp.
319. The Court of Appeals affirmed. 188 F.2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U.S. 865.
I. Petitioner’s status in Germany.–Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the
United States Air Forces. In 1949, she resided there, with him, in a
house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for
those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany.
October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was ar­rested there by the United States Air Force Military Police. On the following day, before a “United States Military Government Court,” she was charged with the murder of her husband in violation of $ 211 of the German Criminal Code. In February, 1950, she was tried by ‘The United States Court of the Allied High Commission for Germany, Fourth Judicial District.” That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control. The court adjudged her guilty and sen­tenced her to 15 years in the Federal Reformatory for Women at Alderson, West Virginia, or elsewhere as the Secretary of the Army might direct. In May, the llCourt of Appeals of the United States Courts of the Allied High Commission for Germany,” composed of five United States civilians appointed by the Military Governor of the Area, affirmed the judgment but committed her to the custody of the Attorney General of the United States or his authorized representative. The Director of the United States Bureau of Prisons designated the Federal Reformatory for Women at Alderson, West Virginia, as the place for her confinement.
11. Both United States courts-martial. and United States Militam Commissions or tribunals in the nature of such commissions. had luris­diction in Germany in 1949-1950 to try persons in the status of ~etitioner on the charge against her.–Petitioner does not here att6ck the merits of her conviction nor does she claim that any nomilit& court of the United States or Germany had jurisdiction to try her.7 It is agreed by
7. There was no nonmilitary court of the United States in Germany. She enjoyed the immunity from the jurisdiction of all German courts which had been granted to nationals of the United Nations and to families of members
of the occupation forces. United States Military Government Law NO. 2,
Art. VI(l), 12 Fed. Reg. 2191, 2l92, Appendix, infra, p. 364; Allied High Commission, Law NO. 2, Art. 1, 14 Fed. Reg. 7457, Appendix, iarfrq, p. 369; Allied High Commission, Law NO. 13, -Art. 1, 15 Fed. Reg. 1056-1057, see Appendix, infrq, p. 370.
the parties to this proceeding that a regularly convened United States general court-martial would have had jurisdiction to try her. The United States, however, contends, and petitioner denies, that the United States Court of the Allied High Commission for Germany, which tried her, also had jurisdiction to do so. In other words, the United States contends that its courts-martial’s jurisdiction was concurrent with that of its occupation courts, whereas petitioner contends that it was exclusive of that of its occupation courts.
The key to the issue is to be found in the history of United States military commissions8 and of United States occupation courts in the nature of such commissions. Since our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.9 They have
8.
“By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as au- thorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the,reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and cannot be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. . . . There heir] competency has been recog- nized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General. During the Civil War they were employed in several thousand cases; . . . .” Howland, Digest of Opinions of the Judge-Advocates General of the Army (1912), 1066-1067.

9.
In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents ( 2d ed. 1920 reprint), says at 831:

“.. .it is those provisions of the Constitution which empower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal de- rives its original sanction. Its authority is thus the same as the au- thority for the making and waging of war and for the exercise of military government and martial law. The conrmission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. In some instances. . . Congress has specifically recognized the military commission as the proper war-court, and in terms provided for the trial thereby of certain offenses. In general, however, it has left it to the been called our comon-law war courts,1° They have taken many forms end borne many names,ll Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth. See In re Yamashitq, 327 U.S. 1, 18-23.
(continued) President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offenses not cognizable by court-martial.
“The occasion for the military commissiop arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offenses defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is re­quired. . ,, Hence, in our military law, the distinctive name of militam codssion has been adopted for the exclusively war-court, which . . .is essentially a distinct tribunal from the court-martial of the Articles of War.”
–
For text of General Scott’s General Order No. 20, as amended by General Order No. 287, September 17, 1847, authorizing the appointment of military commissions in Mexico, see Birkhimer, Military Government and Martial Law ( 2d ed. 1904), App. I, 581-582. See also, Duncan v. Kahanamoku, 327 U,S. 304; In re Yamashitq, 327 U.S. 1;Santiag~v. Nomerag, 214 U.S. 260; Neely v. Henkel, 180 U.S. 109; Mechanics1 & Traders1 Bank v. Union Bank, 22 Wall. 276, 279 note; The Gra~eshot,9 Wall. 129, 132; Cross v. Harrison, 16 How. 164, 190; I1 Halleck, International Law (3d ed. 1893), 444-445. For an example of the exercise of jurisdiction in a murder case by a Provisional Court established in Louisiana, in 1862, by executive order of the President of the United States and an opinion by the Pro­visional Judge reviewing the constitutional authority for the establish­ment of his court, see United States v. Reiter, 27 Fed, Cas, No. 16,146.
10.
While explaining a proposed reference to military commissions in Article of War 15, Judge Advocate General Crowder, in 1916, said, “A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law.” S. Rep, No. 130, 64th Cong., 1st Sess. 40.

11.
Such as Military Commission, Council of War, Military Tribunal, Mili­tary Government Court, Provisional Court, Provost Court, Court of Concili­ation, Arbitrator, Superior Court, and Appellate Court. And see Winthrop, op. cit. 803-804.

In the absence of attempts by Congress to limit the President’s power, it appears that, as Commander-in-Chief of the Amy and Navy of the United States, he may in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States. His authority to do this sometimes sur­vives cessation of hostilities.12 The President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms.13 The policy of Congress to refrain from legislating in this uncharted area does not imply its lack of power to legislate. That evident restraint contrasts with its traditional readiness to “make Rules for the Gov- ernment and Regulation of the land and naval Forces; . . . .”I4 UnAer
12.
It has been recognized, even after peace has been declared pending complete establishment of civil government. See Duncan v. Kahanamoku, 327 U.S. 304; In re Yamashita, 327 U.S. 1, 12-13; Santiago v. Nomeras, W4 U.S. 260; Neely v. Henkel, 180 U.S. 109; Burke v. Miltenberner, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164.

13.
See Article 43 of The Hague Regulations respecting the laws and customs of war on land with special relation to military authority over the territory of a hostile state (1907):

“The authority of the legitimate power having in fact passed into the hands of the occupant, the lattor shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” 36 Stat. 2306.
“Military Government. . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of ad- ministration. Whether administered by officers of the army of the bel- ligerent, or by civilians left in office or appointed by him for the purpose, it is the government andifor all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. . . . The local laws and ordinances may be left in force, and in general should be, sub­ject however to their being in whole or in part suspended and others substituted in their stead–in the discretion of the governing authority.” Winthrop, OD, cit. 800.
14. U.S. Const., Art. I, 8, cl. 14.
!$

that clause Congress has enacted and repeatedly revised the Articles of
War which have prescribed, with particularity, the jurisdiction and
procedure of United States courts-martial.

Originally Congress gave to courts-martial jurisdiction over only members of the Armed Forces and civilians rendering functional service to the Armed Forces in camp or in the field. Similarly the Articles of War at first dealt with nonmilitary crimes only by surrendering the accused to the civil authorities. Art. 33, American Articles of War of 1806,Winthrop s Military Law and Precedents (2d ed. 1920 reprint) .979. However, in 1863, this latter jurisdiction was enlarged to include many crimes “committed by persons who are in the military service of the United States. . ..If Still it did not cover crimes committed by civilians who, like petitioner, were merely accompanying a member of the Armed Forces.
Finally, in 1916, when Congress did revise the Articles of War
so as to extend the jurisdiction of courts-martial to include civilian
offenders in the status of petitioner, it expressly preserved to
“Military commissions, provost courts, or other military tribunalsn all
of their existing concurrent jurisdiction by adding a new Article which
read in part as follows:

“C, JURISDICTION

“Art. 15. Not exclusive.–The provisions of these articles con- ferring jurisdiction upon courts-martial shall not be construed as de- priving military coxnmissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals.” 39 Stat. 651, 652, 653.
Article 15 thus forestalled precisely the contention now being made by petitioner. That contention is that certain provisions, added in 1916 by Articles 2 and 12 extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, auto- matically deprived military commissions and other military tribunals of whatever existing jurisdiction they then had over such offenders and offenses. Articles 2 and 12, together, extended the jurisdiction of courts-martial so as to include “all persons accompanying or serving with the armies of the United States. . ..I1 The 1916 Act also increased
the nonmilitary offenses for which civilian offenders could be tried by courts-martial. Article 15, however, completely disposes of that contention. It states unequivocally that Congress has not deprived such commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses as of August 29, 1916. 39 Stat. 653, 670. See In re Yamashitq, 327 U.S. 1, and Ek wte Quirin, 317
U.S. 1.
The legislative history strengthens the Government ‘ s position. During the consideration by Congress of the proposed Articles of War, in 1916, Judge AdvocateGeneralof the Army Crowser sponsored Article 15 and the authoritative nature of his testimony has been recognized by this Court. In re Yamashitq, suDrq, at 19 note, 67-71. Before the Senate Subcommitte on Military Affairs he said:
“Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation ‘persons subject to military law,’ and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced: . . . .(1
“It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient.” S. Rep. No. 130, 64 Cong., 1st Sess. 40.
The concurrent jurisdiction thus preserved is that which Itby statute or b~ the law of war may be triable by such military commissions, pro­vost courts, or other military tribunal^.^ (~mphasis supplied.) 39 Stat. 653, 41 Stat. 790, 10 U.S.C. § 1486. The Itlaw of war” in that connection includes at least that part of the law of nations which de- fines the powers and duties of belligerent powers occupying enemy ter- ritory pending the establishment of civil government. The jurisdjction exercised by our military commissions in the examples previously extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress. In the case of In re Yamashitgl, 327 U.S. 1, 20, following a quotation from Article 15, this Court said, “By thus recognizing military codssions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex ~arteQuirin, to any use of the military commission contem- plated by the common law of war.” The enlarged jurisdiction of the courts- martial therefore did not exclude the concurrent jurisdiction of military commissions and of tribunals in the nature of such commissions.
3-111.

Courts of
the Ued_Hleb-. .
Germany were. at the time of the trial of ~etitioner’s case. tribunals jn the nature of militam commissions conformina to the Constitution and laws of the United States.-Under the authority of the President as Commander-in-Chief of the United States Armed Forces occupying a certain area of Germany conquered by the dlfes,the system of occupation courts now before us developed gradually. The occupation courts in Germany are designed especially to meet the needs of law enforcement in that occupied territory in relation to civilians and to nonmilitary offenses. Those courts have been directed to a ply the German Criminal Code largely as it was theretofore in force. PSee Appendix, infra, pp. 362-371, en­titled “Chronology of Establishment of United States Military Government Courts and Their Jurisdiction over Civilians in the United States Area of Control in Germany 1945-1950.”) The President, as Commander-in-Chief of the Army and Navy, in 1945 established, through the Commanding Gen- eral of the United States Forces in the European Theater, a United States Military Government for Germany within the United States Area of Con- trol. Military Government Courts, in the nature of military commissions, were then a part of the Military Government. By October 20, 1949, when petitioner was alJ.eged to have committed the offense charged against her, those courts were known as United States Military Government Courts. They were vested with jurisdiction to enforce the German Criminal Code in relation to civilians in petitioner’s status in the area where the homicide occurred.
September 21, 1949, the occupation statute had taken effect. Under it the President vested the authority of the United States IGlitary Gov- ernment in a civilian acting as the United States High Commissioner for Germany. He gave that Commissioner “authority, under the immediate supervision of the Secretary of State (subject, however, to consultation with and ultimate direction by the president), to exercise all of the governmental functions of the United States in Germany (other than the command of troops) .. . .” Xxecutive Order 10062, June 6, 1949, 14 Fed. Reg. 296’5, Appendix, infra, p. 367; Office of the United States High Commissioner for Germany, Staff Announcement No. 1, September Zl, 1949, Appendix, infrq, p. 368. Under the Transitional Provisions of Allied High Commission, Law No. 3, Article 5, 14 Fed.. Reg. 7458, Appendix, infrq,
p. 369, preexisting legislation was applied to the appropriate new au- thorities. Finally by Allied High Commission, Law No. 1, Article 1, 15 Fed. Reg. 2086, Appendix, infrq, p. 370, effective January 1, 1950, the name of the “United States Nilitary Government Courts for Germany” was changed to “United States Courts of the Allied High Commission for Germanybtt They derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops. Although the local government was no longer a “Military Government,It it was a government prescribed by an occupying power and it depended upon the continuing military occupancy of the territory.
The government of the occupied area thus passed merely from the con- trol of the United States Department of Defense to that of the United States Department of State. The military functions continued to be im­portant and were administered under the direction of the Commander of the United States Armed Forces in Germany. He remained under orders to take the necessary measures, on request of the United States High Com- missioner, for the maintenance of law and order and to take such other action as might be required to support the policy of the United States in Germany. Executive Order 10062, sutxa.
The judges who served on the occupation courts were civilians, ap­pointed by the United States Military Governor for Germany, and there- after continued in office or appointed by the United States High Com- missioner for Germany. Their constitutional authority continued to stem from the President. The members of the trial court were designated by the Chief Presiding District Judge as a panel to try the case. The volume of business, the size of the area, the number of civilians affected, the cluration of the occupation and the need for establishing confidence in civilian procedure emphasized the propriety of tribunals of a non­lallitary character. With this purpose, the Military Government Courts for Germany, substantially from their establishment, have had a less military character than that of courts-martial. In 1948, provision was made for the appointment of civilian judges with substantial legal experience. The rights of individuals were safeguarded by a code of criminal pro- cedure dealing with warrants, summons, preliminary hearings, trials, evidence, witnesses, findings, sentences, contempt, review of cases and appeals. This subjected German and United States civilians to the same procedures and exhibited confidence in the fairness of thosprocedures.
It is suggested that, because the occupation statute took effect September 21, 1949, whereas the crime charged occurred October 20, 1949, the constitutional authority for petitioner’s trial by military commission expired before the crime took place. Such is not the case. The authority for such commissions does not necessarily expire upon cessation of hos- tilities or even, for all purposes, with at~aty of peace. It maycontinue long enough to permit the occupying power to discharge its re­sponsibilities fully. Santiago v. Nomeras, 214 U.S. 260; NeeJv v. Henkel, 180 U.S. 109, 124; Burke v. Miltenbernec, 19 Wall. 519; w­ensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164.
IV. Petitioner and the offense charged aminst her came within the jurisdiction assi~ned to the court which tried her.-Under the United States Military Government Ordinance No. 31, August 18, 1948, Article 7, 14 Fed. Reg. 126, Appendix, infra, p. 365, the United States give its Military Government District Courts ttcriminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United fiat ion^.^^ It thus excepted from
the jurisdiction of those occupation courts military men and women who were subject to military law but expressly gave those courts jurisdiction over civili men and women who were subject to military law. Article of War 2 d
-7Y further defined Itany person subject to military lawn as including “all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States. …”This included petitioner.
Article 7 of United States Military Government Ordinance No. 31 further provided, however, that “No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Cornmand.I1 14 Fed. Reg. 126, Appendix, infrq, p. 365. That authorization appears in the official correspondence relating to the case of Wilma B. Ybarbo. The correspondence includes a written endorsement from the proper authority, dated December 11, 1948, covering not only the Ybarbo case but also the
n
case Ifof any dependent of a member of the United States Armed Forces. … See Appendix, infra, p. 367.
The applicability of the German Criminal Code to petitioner’s ~f­fense springs from its express adoption by the United States Ydlitary Government. The United States Commanding General, in his proclamation No. 2, September 19, 1945, stated that, except as abrogated, suspended or modified by the Military Government or by the Control Council for Germany, “the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation. . . .11 12 Fed. Reg. 6997, Appendix, infrq, p. 363. Section 211 of the German Criminal Code accordingly was applicable to petitioner on October 20, 1949.dThe United States also expressly required that its civilians be tried by its occupation courts rather than by the German courts. United States Military Government Law No. 2, German courts, Art. VI (i)(c) and (d), 12 Fed. Reg. 2191, 2192, Appendix, infrq, .364. United States Military Government Ordinance No. 2, Art. I1 (Zy(iii), 12 Fed. Reg. 2190-2191, Appendix, infrq, p. 363.
The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner’s release from custody is
NOTE
–

“Chief Justice Chase [in Ex parte Milligan, 4 Wallace 1411describes military government as ‘exercised by the military commander under the diraction of the President, with the express or implied sanction of Congress. ‘ Congress having, under its constitutional powers, declared or otherwise initiated the state of war, and made proper provision for its carrying on, the efficient prosecution of hostilities is devolved upon the President as Commander-in-chief, In this capacity, unless Congress shall specially otherwise provide, it will become his right and duty to exercise military government over such portion of the country of the enemy as may pass into the possession of his army by the right of conquest. In such government the President represents the sovereignty of the nation, but as he cannot administer all the details, he delegates, expressly or impliedly, to the commanders of armies under him the requisite authority for the purpose. Thus authorized, these commanders may legally do what- ever the President might himself do if persomlly present, and in their proceedings and orders are presumed to act by the President’s direction or sanction Winthropls Militam Law and Precedents 801 (~e~rint
1920).
Accord; MacLeod v. United St tes, 229 U.S. 416 (1913). United States
v. Reiter, Fed. Case No. –?­
16,146 1865).

The significant distinction between the facts in the Madsen case and
the facts in the old authorities relied upon by the court was that at the
time of the Madsen trial the occupied territory was administered not by
military personnel but by civilian personnel, who, judicially, operated
pursuant to civilian procedures rather than military procedures. Thus,
the case contributes significantly to an understanding of the nature of
the relationship which exists between the law of belligerent occupation
and the term military government. See, Raymond,

M-4;
Landmark and Guidenost in Law of Militam Occu~ation, 47 Am. J. Int’l L. 300 (1953).
May an occupant avoid the application of the law of belligerent oc- c~pation by establishing a local puppet government to administer the territory? See, paragraph 366, Dl 27-10. State of Netherlands v. Jessen (~olland 1953), Int ‘1Law Rep,, 1953, 646 (civil administration). Rands­flordsbruket and Jevnaker Kommune v. Viul Treslimri o or way 1951), Int’1Law Rep., 1951, Case No. 199 (Quisling government) .
b. Read: Par, 363, FM 27-10.
The laws of war not only give rights to a belligerent occupant, but they impose duties upon him as well. 11 O~~enheb’s
International&, 433, 434 (7th ed. Lauterpacht 1952).
If the laws of war are the standards by which the responsibilities of belligerents of the past have been tested, will a future belligerent who has undertaken a war of aggression be entitled to have his responsi­bilities tested by such favorable standards, or will he be tested by the laws of peace? See, Von Glahn, 5, 6 (1957). But see, In re List Mil. Trib., Nuremburg 1948), Annual Digest, 1948, Case No. 215,

Prn IV

THE LAW OF BELLIG- OCCUPATION: COMMEXC-AND TERMINATION
1. The commencement; the occupation of territoq.
a. Read: Pars. 351, 352, 355, and 356, F’hI 27-10.
-NOTE
May territory be occupied within the contemplation of the Hague Regulations in the of peace? Are (or were) the United States’ forces in Lebanon, in 1958, occupying territory as a belligerent so as to be bound by the law of belligerent occupation? See, Von Glahn, The Occutation of Enem Territom 27 (1957).
KEELP v. SANDERS 99 U.S. 441 (1878)
Facts: This was a suit brought to quiet title to certain real prop erty purchased by plaintiff from a U.S. Board of Tax Commissioners at Memphis, Tennessee, in June of 1864. The property involved had been sold by the Commissioners in default of taxes pursuant to an act of Congress which had authorized them to “enter upon the discharge of the duties of their office whenever the commanding general of the forces of the United States, entering into an insurrectionary state or district should have established the military authority throughout any parish, or district, or county of the same.” It was the defendant’s contention that Union mili- tary authority had not been established over Shelby county (~ern~his)
in June of 1864, and, as a consequence, that the sale by the Codssioners was void.
-Issue: When may territory be considered occupied?
Opinion: Judgment for plaintiff. No conquering army occupies the entire country conquered. Its authority is established when it occupies and holds securely the most important places, and when there is no opposing governmental authority within the territory. The inability of any other power to establish and maintain governmental authority is the test.
-NOTE

The criteria for an effective occupation are rather exacting; (1) the belligerent must be able to control the territory, i.e., suppress on the spot any resistance to his authority; (2) he must succeed in denying the local government the power to exercise its authority; and (3) he must succeed in setting up his own administration for the territory.
569 (3d ed. 1948). 11P~~eIlhebl’
s Intez­national 1952).
The ability to control the territory is perhaps the most nebulous criterion. Control may not necessarily result from a defeat of the principal armies of the enemy in the field. There is likely to be the matter of partisan and guerrilla forces to be reckoned with. At what point do the activities of such forces cause the occupation to be in- effective? Consider, .356 and 360, FM 27-10. See, In re List and others (~ostanes Trialyys (u.s. Mil. Trib., Nuremberg, 1948), Bnnual Digest, 1948, Case No. 215.
Paragraph 356, FFI 27-10, seems to contemplate that control will be maintained by ground units. Could not that control be maintained by military aircraft? See, 3 Hyde, International Law Chiefly as Inter~retea and A~died Inthe United States 1882 (2d ed. 1945).
Beyond considerations merely of control, could a belligerent es­tablish an effective occupation solely through the use of his air forces? See, Von Glahn, The Occuwtion of Enemy Territorv 28, 29 (1957).
c . Proclamations.
MILITAFX GOVERWMENT -GERMANY SUPm COMPIANDZR IS BREA OF CONTROL
Proclamation No. 1
To the People of Germany:
I, General Dwight D. Eisenhower, Supreme Commander, Allied Expeditionary Forces, do hereby proclaim as follows:
The Allied Forces serving under my Command have now entered Germany. We come as conquerors, but not as oppressors. In the area of Germany
occupied by the forces under IIIY cormnand, we shall obliterate Nazism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive and discridnatory laws and in- stitutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world, Military and Party leaders, the Gestapo and others suspected of crimes and atroci- ties, will be tried, and, if guilty, punished as they deserve.
Supreme legislative, judicial and executive authority and powers within the occupied territory are vested in me as Supreme Commander of the Allied Forces and as Military Governor, and the Military Government is established to exercise these powers under my direction. All persons in the occupied territory will obey immediately and without question all the enactments and orders of the Military Government. Military Government Courts will be established for the punishment of offenders. Resistance to the Allied Forces will be ruthlessly stamped out. Other serious offenses will be dealt with severely.
All German courts and educational institutions within the occupied territory are suspended. The Volksgerichtshof, the Sondergerichte, the SS Police Courts and other special courts are deprived of authority throughout the occupied territory. Reopening of the criminal and civil courts and educational institutions will be authorized when conditions permit.
All officials are charged with the duty of remaining at their posts until further orders, and obeying and enforcing all orders or directions of Military Government or the Allied Authorities addressed to the German Government or the German people. This applies also to officials, em­ployees and workers of all public undertakings and utilities and to all other persons engaged in essential work.
/s/ DWIGHT D. EZSENHOWETt, General, Supreme Commander, Allied Expeditionary Forces

-NOTE

This proclamation was released in September of 1944.

Does the mere issuance of a proclamation establish as a fact that territory has been occupied? Does international law require a bel- ligerent to announce his occupancy by a proclamation? See, par. 357, FM 27-10. If it is the practice of the United States to make a proc­lamation, who is authorized to make it? See, par. 145, F’M 41-10. In what language? See pars. 150a and 152, FM 41-10; par. 435, F’M 27-10.
PLANTERS BANK v. UNION BANK
83 U.S. 483 (1872)

Facts: Upon the occupation of New Orleans by Union forces during the Civil War, the Union commander, General Butler, issued a procla- mation in which he stated: *All the rights of property of whatever kind will be held inviolate, subject only to the laws of the United Statesen At the time this proclamation was issued the Union Bank of New Orleans carried on its books a large balance in favor of the Planters Bank of Tennessee. One year later, General Banks, the successor to General Butler, issued an order requiring all banks in New Orleans to pay over to the chief quartermaster of the Union Army all moneys in their possession belonging to, or standing upon their books to the credit of, any corporation, association etc., in hostility to the United States. Pursuant to this order the Union Bank paid to the quartermaster the balance stanang to the credit of the Planters Bank. Subsequently, the Planters Bank drew on the Union Bank the sum of $86,466, the amount it considered due it. The Union Bank refused to pay, defending on its compliance with General Banks’ order. Thereupon the Planters Bank sued to recover the money alleged to be due it.
Issue: Was the payment to the quartermaster a satisfaction of’the
Planters Bank’s claim?

Oninion: No. General Butler’s proclamation amounted to a pledge
that rights of property would be respected. This pledge was binding
upon his successor. General Banks1 order was therefore, one he had no
authority to make. It was wholly invalid.

-NOTE

Does the holding in this case amount to a principle of international law, or should it be treated merely as an anomaly of the time and cir-, cumstance? Irrespective of a subjective evaluation of the case, what practical suggestions does it offer the legal adviser to a military governor of the future?
Absent General Butlerls proclamation, would General Banks1 order have been legal? May private property be confiscated? May it be se­questered? See, KoWlinsku v. Banco Di Chivari (1taly 1951), Int ‘1 Law Rep., 1951, Case No. 214 (~erman sequestration of silver deposited with local bank).
d. Proof of occupation.
KEELY v. SANDERS, sum4
Facts: As stated, suDra.
Issue: May the defendant be permitted to litigate the factual ques- tion whether the occupation was effective?
Opini~n: No. Whether military authority had been established throughout Shelby county before the Conmissioners entered upon the dis­charge of their duties, is a political question to be answered by the executive branch of the government and not by the courts.
-NOTE
The effectiveness of an occupation is a most important factual question. Only if there be an effective occupation is the law of bel- ligerent occupation available to validate the acts and orders of the enemy authorities. This is so even if their actions and orders other- wise are in accordance with the Hague Regulations and the Geneva Con- ventions. Occupation is then the factual condition precedent to an invocation of the law, customary or conventional. But how meaningful is this precedent if it cannot be litigated? To illustrate, in Bank of
v. National Bank of Em~tand Limori, 1Chancery 513 (~t .Brit. the issue was whether the Bank of Ethiopia had been validly dissolved or hadotherwise ceased to exist by the terms of a decree promulgated by the Italian Government one month after the capital Addis Ababa, had been seized but several months before the whole of Ethiopia had been subjugated. In dismissing a suit instituted by the former directors of the Bank of Ethiopia to require a settlement of outstand- ing accounts between it and the Egyptian Bank, the English court held that the Italian decree was valid and that the directors had no standing to sue, because the British Foreign Office had subsequently extended de facto recognition to the Italian Government in Ethiopia. [under British law, de facto recognition operates retroactively to validate the internal acts of the government recognized. ]
2. The termination.
a. Read: Pars. 353 and 361, FM 27-10.
–NOTE
Generally speaking, the law of belligerent occupation has been considered to terminate upon the coming into force of a treaty of peace, upon the dissolution of the local sovereign entity, or upon the valid annexation of the territory after all hostilities have ceased; subject, of course, to the continued application of the articles of GC referred to in paragra h 249, F’M 27-10,-See, Stone, Lena1 Controls of Intermti04 Conflict 721 f1954).
A twilight period between hostilities and the coming into fokce of a treaty of peace is often created by an armistice agreement. Does the law of belligerent occupation continue to apply to enemy territory held under an armistice agreement? Specifically, do the Hague Regulations continue to apply? May the parties to the armistice agreement agree to provisions at variance with the Hague Regulations? See, 3 Hyde, Inter­national Law Chieflv as Inter~retedanwedbv the Uted s­1905 (2d ed. 1945). Stone, Le Controls of International Conflictg 696 n. 13, 721 (1954). Von*, The Occumtion of Enew Territory 28 (1957). a.,subpar. 487d, F’M 27-10.
SANTIAGO v. NOGUERAS 214 U.S. 260 (1908)
Facts: During the Spanish-American War, military forces of the United States occupied the Spanish island of Puerto Rico, and established a military government. That military government, with its occupation courts, continued to function after the coming into fol.se of a treaty of peace by which Spain ceded Puerto Mco to the United States.
a:Does the authority of a military government terminate, i~so -facto, with the coming into force of a treaty of peace?
O~inion: No. The military authority in control of conquered ter- ritory ceded to the United States under a treaty of peace continues, if not dissolved by the Commander-in-Chief, until legislatively changed.
NOTE

–

Accord; Cr ss v. Harrison, 16 How. 164 (1853). Burke v. Miltenberaer, 19 Wall. 519i”1873).
How may the holding in the Santiagq case be reconciled with the principles of international law discussed in subparagraph 2a, above?
As a point of digression into facets of Constitutional law, wherein lies the authority of Congress to legislate with respect to foreign territory occupied by U.S. forces? Subsequent to the coming into force of a treaty of peace? Prior to the coming into force of a treaty of peace? Consider, by analogy, ~ermil~a-~r&anCo. v. Connell, 335 U.S. 377 (1948).
PArZT V
THE STATUS OF OCCUPIED TERRITORY: ITS INHABITANTS; ITS LAWS
1. Soverei~nt~and other considerations.
a. Read,: Par. 358, FM 27-10.
FLENING v. PAGE
9 How. 603 (1850)

“This action is brought by the plaintiffs, merchants, residing in the city of Philadelphia, against the defendant, the late collector of port of Philadelphia, to recover the sum of one thousand five hundred and twenty-nine dollars, duties paid on the 14th of June, 1847, under protest, on goods belonging to the plaintiffs, brought from Tampico while that place was in the military occupation of the forces of the United States.
“On the 13th of May, 1846, the Congress of the United States de- clared that war existed with Mexico. In the summer of that year, New Mexico and California were subdued by the American armies, andmilitary occupation taken of them, which continued until the Treaty of Peace of May, 1848.
“On the 15th of November, 1846, Commodore Conner took military possession of Tampico, a seaport of the State of Tamaulipas, and from that time until the treaty of peace it was garrisoned by American forces, and remained in their military occupation. Justice was administered there by courts appointed under the military authority, and a custom­house was established there, and a collector appointed, under the military and naval authority.
“On the 29th of December, 1846, military possession was taken by the United States of Victoria, the capital of Tamaulipas; garrisons ware established by the Americans at various posts in that State; and, at the period of the voyages from Tampico of the Schooner Catharine, here­inafter mentioned, Tamaulipas was reduced to military subjection by the forces of the United States, and so continued until the treaty of peace.
“On the 19th of December, 1846, the schooner Catharine, an American vessel chartered by the plaintiffs, cleared coast-wise from Philadelphia for Tampico.
“On the 13th of February, 1847, she was cleared at the custom-house at Tampico, on her return voyage to Philadelphia, under a coasting mnifest, signed by Franklin Chase, United States acting collector.
“The Catharine brought back a cargo of hides, fustic, sarsparilla, vanilla, and jalap, the property of the plaintiffs, which was admitted into the port of Philadelphia free of duty. The Catharine cleared again coast-wise from Philadelphia, for Tampico, on the 18th of March, 1847, and in June, 1847, brought back a return cargo of similar mer- chandise, owned by the plaintiffs, which the defendant, acting under the instructions of the Secretary of the Treasury, ref’used to admit, unless the duties on the merchandise brought by the Catharine on her former voyage were paid, as well as the duties on the goods brought by her on this voyage.
nThereupon, the plaintiffs, on the 14th of June, 1847, paid under protest the duties on both voyages, amounting to $1,529, and brought this action to recover back the money so paid.
“The question for the decision of the court is, whether the goods so imported by the Catharine were liable to duty. If the court are of the opinion that they were not so liable, then judgment is to be en- tered for the plaintiffs, for the sum of $1,529, with interest from the 14th of June, 1847.
nIf they are of the opinion that they were liable to duty, then judgment is to be entered for the defendant.
Mr. Chief Justice Taney delivered the opinion of the court:
The question certified by the Circuit Court turns upon the con- struction of the Act of Congress of July 30, 1846. The duties levigd upon the cargo of the schooner Catharine were the duties imposed by this law upon goods imported from a foreign country. And if at the time of this shipment Tampico was not a foreign port within the meaning of the act of Congress, then the duties were illegally charged, and, having been paid under protest, the plaintiffs would be entitled to recover in this action the amount exacted by the collector.
The port of Tampico, at which the goods were shipped, and the Mexican State of Tamaulipas, in which it is situated, were undoubtedly at the time of the shipment subject to the sovereignty and dominion of the United States. The Mexican authorities had been driven out, or had submitted to our my and navy; and the country was in the exclusive and firm possession of the United States, and governed by its military
authorities, acting under the orders of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country, in the sense in which these words are used in the acts of Congress.
The country in question had been conquered in war. But the genius and character of our institutions are peaceful, and the power to de- clare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens.
A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority of the President to enlarge the limits of the United States by subjugating the enemy’s country. The United States, it is true, may extend its boundaries by conquest or treaty and may demand the cession of territory as the con­dition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government f6r the expenses of war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to emply them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits befor~ assigned to them by the legislative power.
It is true, that, when Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. T.he citizens of no other nation, ‘herefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.
But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States while it was occupied by their arms did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President under which Tampico and the State of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they were in an enemy’s country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, some­times called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. But the boundaries of the United States, as they esdsted when war was declared against Mexico, were not extended by the conquest; nor could they be regulated by the varying incidents of war, and be enlarged or diminished as the armies on either side advanced or retreated. They remained un­changed. And every place which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign; nor did our laws extend over it. Tampico was, therefore, a foreign port when this shipment was made.
Again, there was no act of Congress establishing a custom-house at Tampico, nor authorizing the appointment of a collector; and, conse­quently, there was no officer of the United States authorized by law to grant the clearance and authenticate the coasting manifest of the cargo, in the manner directed by law, where the voyage is from one port of the United States to another. The person who acted in the character of collector in this instance, acted as such under the authority of the military commander, and in obedience to his orders; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the President in his character of commander-in-clxief. The custom-house was established in an enemy’s country, as one of the weapons of war. It was established, not for the purpose of giving to the people of Tamaulipas the benefits of commerce with the United States, or with other countries, but as a measure of hostility, and of a part of the military operations in Mexico; it was a mode of exacting con- tributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and burdens of the war. The duties required to be pafd were regulated with thPs view, and were nothing more than contributions levied upon the eneqy, which the usages of war justify when an army is operating in the enemy’s country. The permit and coasting manifest granted by an officer thus appointed, and thus controlled by military authority, could not be recog- nized in any port of the United States, as the documents required by the act of Congress when the vessel is engaged in the coasting trade, nor could they exempt the cargo from the payment of duties.
In the view we have taken of this question, it is unnecessary to notice particularly the passages from eminent writers on the laws of nations which were brought forward in the argument. They speak alto- gether of the rights which a sovereign acquires, and the powers he may exercise in a conquered country, and they do not bear upon the question we are considering, For in this country the sovereignty of the United States resides in the people of the several States, and they act through their representatives, according to the delegation and distribution of powers contained in the Constitution. And the constituted authorities to whom the power of making war and concluding peace is confided, and of determining whether a conquered country shall be permanently retained or not, neither claimed nor exercised any rights or powers in relation to the territory in question but the rights of war. After it was sub­dued, it was uniformly treated as an enemy’s country, and restored to the possession of the Mexican authorities when peace was concluded. And certainly its subjugation did not compel the United States, while they held it, to regard it as a part of their dominions, nor to give to it any form of civil government, nor to exbend to it our laws.
Order.
* * * it is the opinion of this court, that Tampico was a foreign port within the meaning of the Act of Congress of July 30, 1846, entitled “An Act reducing the duties on imports, and for other purpose^,^ and that the goods, wares, and merchandise as set forth and described in the record were liable to the duties charged upon them under said act of Congress. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.
-MOTE
The shipments involved in Fleminp, v. Pa-left Tampico prior to the coming into force of a treaty of peace with Mexico. Would the result in the case have been the same if the shipments had occurred subsequent to the coming into force of a treaty of peace? Would your answer depend upon the terms of the treaty? What if Mexico had ceded Tampico to the United States? What if Mexico had merely relinquished sovereignty over Tampico, ceding it to no state? consider, ~eelvv. Henkel, 186 U.S. 109 (1901).
A provision of the Immigration and Nationality Act operates to ex- patriate an American citizen who voluntarily votes in a political election in a foreign state. Would this provision be applicable to a political election held in the American Occupied Zone of Germany in 1946? See Acheson v. Wohlmuth, 196 F .2d 866 (D.c. Cir. 1952), cert . den., 344 U.S. 833 (19ne, also, heson v. Kunid, 189 F.2d 741 Eh Cir .1951), reh. den., 190 F .2d 897″T-cert .den.,
1951), 342 U.S . 942 (1951), (political election in occupied ~a~an). As to the consti- tutional issue involved, see Perez, v. Brownell, 356 U.S. (1958) .
Is a native of the -Islands a national of the United States? See, United States v. Ushi Shiromq, 123 F, Supp. 145 (D. Hawaii 1954) . -*,Cf -Cobb v. Unite St tes, 191 F.2d 604 (9th Cir. 1951), cert. den., 342 U.S. 913 (1952
-f-
Fleminp, v, and Ushi Shiromq, gu~rq, may serve as a point of departure for a consideration, generally, of the question of the appli- cability of U.S. laws to U.S. controlled areas outside the continental limits of the United States. For a valuable article on the subject, see, Green, A~~licability American Laws to Overseas Areas Controlled by
of the United States, 68 Harv. Law Rev. 781 (1955) .
C.      V/O SOVFiiBCm v, M. V . GEBR. VAN UDENS SCHEZFVABIET
(HOUSE OF LORDS 1943)

A. C. 203
Facts: Before the outbreak of war between Great Britain and Ger- many in September of 1939, a Dutch shipowning corporation (N.V. Gebr. Van Udens ~chee~vaart),
incorporated under the law of the Netherlands and having its principal place of business in Rotterdam, chartered one of their vessels to V/O Sovfracht, a Russian company. Disputes arose between them and the Dutch corporation sought arbitration in London in accordance with a provision in the charter party. That arbitration was in progress when in May 1940 the Germans invaded Holland and brought the country entirely under their control. The Russian company there- upon refused to proceed with the arbitration contending that the Dutch corporation was now an dien enemy within the British Trading Vith The Enemy Act. The Dutch corporation then filed this suit asking for the appointment of an umpire. The Russian company moved to dismiss the suit on the theory that under the British Trading With The Enemy Act an alien enemy has no right to resort to British courts.
-Issue: Does the occupation of allied territory by enemy forces transform an allied corporation into an enemy corporation within the meaning of the mentioned Act, so as to disqualify it from maintaining the instant suit?
Opinion: Yes, Invasion of allied territory, resulting in the enemy being in effective control and exercising some kind of government or administration over it gives the area an enemy character and dis- qualifies residents of the territory from suing in the King’s courts.
NOTE
–

Is the result in this case reconcilable with the provisions of paragraph 358, FM 27-10, and the rule in Fleming v. Paae, supra?
The resort to a territorial test rather than to a nationality test to fix the nature of a person’s economic interests in wartime is of impressive historic origin. In 1815, Chief Justice Marshall announced the rule that for certain belligerent and commercial purposes third nations have a right to place an enemy character upon the produce of the soil of friendly territory occupied by enemy forces. Thirtv Hons- heads of Sugar, 9 Cranch 191.
To what extent, if any, do you think that the British court in the V/O Sovfracht case and the American court in the Swar case were in- fluenced by a desire to reach economic resources which would otherwise
-.~–­
have been available to the enemy? See, Stone, Leaal Controls of Inter- national Conflict 417-419 (1954) .
Would the Trading With the Enemy Act (u.s,) operate against a United States citizen residing in American occupied Bavaria? Which rule applies? Fleming v. Pam? V/O Sovfracht? See, Feverabea v. McGrath, 189 F.Zd 694 (D.c. Cir. 1951). Cf.,Mrs. Alexander’s Cotton, 2 Wall. 404 (1864), (union sympathizer (?) residing in Confederate territory).
2. The inhabitants of occupied territory; allegiance and duty.
a. Read: Pars. 359 and 432, Fl-1 27-10.
NOTE
–

In Fleming v. Page, suurq, the court spoke of the inhabitants of Tampico as owing the United States a “temporary allegiance,” Is that characterization correct today? See, Baxter, The Duty of Obedience tq the Bellberent Occupant, 27 Brit. Y. B, Int’l L. 235 (1950).
If sovereignty is not transferred solely by the fact of a military occupation, to whom do the inhabitants of the occupied territory owe allegiance?
b.  PUBLIC PROSECUTOR V.  LIAN
orwa way 1945), Annual Digest 1943-45,  Case No.  155
Facts:  During the German occupation of Norway, Lian, a Norwegian

citizen residing in Norway, bought property which had belonged to a Norwegian who had fled Norwayy and which had been confiscated by the Germans pursuant to an occupation decree designed to discourage such flights, When the occupation ended, Lian was tried before a Norwegian court and convicted under a Royal Decree which had been issued by the Norwegian Government-in-exile and which made his act punishable. He appealed to the Supreme Court and alleged, inter aliq, that a bel­ligerent occupant was, according to international law, vested with certain rights including that of forbidding inhabitants of the occupied territory to leave the territory, and of punishing such acts. Qs a consequence he contended that the property was lawfully bought and that the sovereign-in-exile was not allowed to make his purchase a criminal offense by issuing legislation at variance with the legislative measures of the occupant, in cases where the latter’s legislation is in conformity with international law.
-Issue: Was the Norwegian decree at variance with the German occu- pation decree, and, if so, which controlled?
O~inion: Conviction sustained. No variance existed. The German decree simply did not imply any obligation to buy the confiscated property.
Dictum: nIn any case a Norwegian decree will, as a rule, be binding on Norwegian citizens even if it is at variance with international lawen
-MOTE

See, also, In re Policeman Vollemq, (Holland 1947), Annual Digest, 1947, Case No. 116 (~utch policeman in occupied Holland enforced Ger- man ordinance by arresting a Dutch naval intelligence officer about to leave Holland) .
Where is the juridical basis for this absentee legislation? Are there no limits to its subject and scope? Will third countries recog- nize it? See State of Netherlands v.-~ederal Reserve Bank of New York, 2Ol F .2d 455 (2d Cir .1953). Comment, 52 Hichigan Law Rev. 753 (1953-54).
What is the inhabitant to do who finds himself in the delemma created by conflicting decrees?
Is he under a duty to his of the occupant? See, JJtrecht LtL, (Ho’land 1948), Annual Digest, 1948, Case No. 189 (yes) . Is resolution of the conflict an international law question or is it merely a conflict of laws question to be resolved in ad hoc fashion by a domestic forum? See, 3 Hyde, International Law. Chiefly as Inter- neted and Aaied by the United States 1886 (2d ed. 1945). Morganstern, Validity of the Acts of the Belli~erent Occuwant, 28 Brit. Y.B. Int’l Law 291 (1951).
3. A~~lication existing laws.
of
a. Order of President McKinlev to the Secretarv of War. July 18, 1898. on the occuwation of Santiago de Cuba by the American Forces.
* * * The municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punish- ment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were be­fore the occupation. * * *
“He (c-I-C) will possess the power to replace or expel the native officials in part or altogether; to substitute new courts of his own constitution for those that now exist * * *.”
b. Read: Pars. 363 and 370, F’M 27-10.
–
–
NOTE
An accepted theory that the laws best suited for people are the laws with which they have lived, is responsible for the development of a customary rule of international law (subsequently codified at Article 43, HR; par. 363, FM 27-10), that a belligerent occupation does not ~DSO fa_cto effect a change in the private law applicable to inhabitants in their usual dealings with one another. Thus, in Thorington v. Smith, 8 Wall. 1(1868), a contract for the purchase of private property in occupied territory was enforced even though the consideration due was in Confederate mone . See, also, I-Iousmann v. Konlnklijke Rotterdamse Lloyd (~olland 1952y, Intll Law Ref ., 1952, Case No. 29, (private con- tract entered into in Japanese occupied Netherlands Indies governed by Netherlands Indies law) .
The reference to “the laws in force” both in President McKinleyls order and in Art. 43, HR (par. 363, FM 27-10), suggests that the bel- ligerent occupant is under no legal obligation to apply laws promulgated by the absent sovereign subsequent to the occupation. For a factually interesting article suggesting that as a practical matter the occupant should apply such laws, where possible, see Stein, A~wlication of the Law of the Absent Sovereign in Territory Under Belligerent Occu~ation: The Schio Massacre, 46 Mich. Law Rev. 341 (1948).
COLEMAN v. TENNESSEE 97 U.S. 509 (1878)
Facts: Coleman was a Union soldier who, in 1865, murdered a woman in Tennessee, a State then under Union occupation. He was tried for his offense by an arnyr court-martial, convicted and sentenced to death. Before the sentence could be carried out, he escaped from military con- trol and remained at large until he was apprehended by civil authorities in Tennessee. He was brought to trial before the criminal courts of Tennessee for the same offense of which he had previously been convicted by the court-martial. His plea of former conviction was overruled; he was convicted and again sentenced to death. This action is an appeal from an adverse decision on his application for habeas corpus.
m: Do the-local courts of an occupied territory have juris­diction to try and sentence a member of the occupation forces for an act in violation of the criminal laws of that territory?
O~iniont No. “The doctrine of international law on the effect of military occupation of enemy’s territory upon its former laws is well established. Though the late war was not between independent Nations, but between different portions of the same Nation, yet having taken the proportions of e territorlal war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war, being a consequence of its acquisition; and the character and form of the government to be established depend entirely upon the laws of the conquering State or the orders of its military commander. By such occupation, the political re- lations between the People of the hostile country and their former gov- ernment or sovereign are for the time severed; but the municipal laws, that is, the laws which regulate private rights, enforce contracts, punish crime and regulate the transfer of property, remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or superseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thus changed. In other words, the municipal laws of the State and their administration re- main in full force so far as the inhabitants of the country are concerned, unless changed by the occupying belligerent. Halleck, Int L, ch 33.
1
“This doctrine does not affect, in any respect, the exclusive char-
acter of the jurisdiction of the military tribunals over the officers
and soldiers of the Army of the United States in Tennessee during the
war; for, as already said, they were not subject to the laws nor
amenable to the tribunals of the hostile country. The laws of the
State for the punishment of crime were continued in force only for the
protection and benefit of its own People. AS’ respects them the same
acts which constituted offenses before the military occupation consti-
tuted [518] offenses afterwards; and the same tribunals, unless auper-
seded by order of the military commanders, continued to exercise their
ordinary jurisdiction.

nIn thus holding, we do not call in question the correctness of
the general doctrine asserted by the Supreme Court of Tennessee: that
the same act may, in some instances, be an offense against two govern-
ments, and that the transgressor may be held liable to punishment by
both when the punishment is of such a character that it can be twice
inflicted, or by either of the two governments if the punishment, from

its nature, can be only once suffered. It may well be that the satis­faction which the transgressor makes for the violated law of the United States is no atonement for the violated law of Tennessee. But here there is no case presented for the application of the doctrine. The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in force during its [519] military occupation, did not apply to the defendant, as he was at the time a soldier in the Army of the United States and subject to the Articles of War. He was responsible for his conduct to the laws of his own government only as enforced by the commander of its army in that State, without whose consent he could not even go beyond its lines. Had he been caught by the forces of the enemy, after committing the offense, he might have been subjected to a summary trial and punishment by order of their commander; and there would have been no just ground of complaint, for the marauder and the assassin are not protected by any usages of civilized warfare. But the courts of the State, whose regular government was super­seded and whose laws were tolerated from motives of convenience, were without jurisdiction to deal with him.
“It follows from the views expressed, that the judgment of the Supreme Court of Tennessee must be reversed and the cause remanded, with directions to discharge the defendant from custody by the sheriff of Knox County on the indictment and conviction for murder in the state court. But as the defendant was guilty of murder, as clearly appears, not only by the evidence in the record in this case but in the record of the proceedings of the court-martial, a murder committed, too, under circumstances of great atrocity, and as he was convicted of the crime by that court and sentenced to death, and it appears by his plea that said judgment was duly approved and still remains without any action having been taken upon [520] it, he may be delivered up to the military authorities of the United States, to be dealt with as required by lawon
-NOTE
For a post-World War I1 application of the rule in Coleman v. Tennessee, see In re Lo Dolce, 106 F. Supp. 455 (w.D. N.Y. 1952). Note, 12 Washington & Lee Law Rev. W3 (1955).
Paragraph 374, F’M 27-10, restates the holdinq in Coleman v. Tennessee as an accepted principle of international law. But cf., In re S.S.
Member Bhlbrecht (~olland 1947), Annual Digest, 1947, Case No. 92 (dis- tinguishing crimes committed in a non-official capacity) . It states, however, that’military and civilian personnel of the occupying forces can be made subject to the local law and to the jurisdiction of the local courts by the express direction of a competent officer of the occupation forces, There would appear to be a serious question whether this latter statement is wholly accurate, or at least whether it should be taken literally, With respect to the subjection of United States military and civilian personnel of the occupation forces to the local la, has not that result been accomplished simply by expressly continuing the local law in effect? See Madsen v. Kinsella, pagel8, suwrq. United St tes v. Schultz, 4 CMR 104, 115 (1952). Cf., Belgian State v. Botte ‘*um i953),nt11 Law Rep., 1953, 634. With respect to the subjection of United States military and civilian personnel of the occupation forces to the jurisdiction of the local criminal courts, some doubt has been expressed as to the “pro rietyn of such a practice. United St tes v. St 4 CMR 104, 112 f1952) v, Covert,–87
, 354 U,S. 1 1957).
A by-product of the decision in C_oleman v. Tennessee was the here- tofore troublesome dicta in the court’s opinion that a foreign army permitted to be stationed in a friendly country, by permission of its government or sovereign, is exempt from the civil and criminal juris- diction of the place. See that diutq stated as a rule at par. 12, MCM 1951 and in United States v. Siniaar 20 CMR 46, 53 (1955)). The recent decision of the United States Supreme Court in Wilson v. Jirard, 354
U. S. 524 (1957), leaves no doubt that dfctq was an unwarranted exten- sion of Chief Justice Marshall’s opinion in The Schooner Exchange v. McFaddon, 7 Cranch 116 !1812) .
DOW v. JOHNSON 100 U.S. 158
Facts-: New Orleans was occupied by Union forces early in the Civil War. The Union military commander issued a proclamation limiting the exercise of criminal jurisdiction by the local Louisiana courts. That proclamation was completely silent with res ect to the exercise of civil jurisdiction, however, Subsequently P1863) Johnson, a citizen of New Orleans, sued General Dow, the Union commander of Forts Jackson and St. Philip, for damages resulting from the taking by troops under General Dow’s cornmand of certain personal property from his (~ohnson’s) plantation. Suit was filed in a local Louisiana civil court. The petition alleged that the property taken had not been necessary for the prosecution of the war or the maintenance of the army of occupation.
Service was had upon General Dow personally, but he chose not to appear.
As a consequence, a default judgment was entered against him. Johnson
then attempted to sue on that judgment in a federal court for the state
of Maine (apparently where he was able to locate General ow). Johnson
was successful in the lower courts. The case came before the Supreme
Court on a writ of error.
-Issue: Do the civil courts of an occupied territory have jurisdic- tion to entertain a suit, and enter a judgment against, an officer of the occupying force for acts ordered by him in his military character?
Owinion: No. From the very nature of war, the tribunals of the enemy must be without jurisdiction to sit in judgment upon the military conduct of the officers and soldiers of the invading army. The latter are responsible for their conduct only to their own government and the tribunals by which those laws are administered.
It is significant that the result in this case was reached independ- ent of a consideration whether the act complained of was done “in the performance of official duty,” as that expression enjoys popular use today.
Suppose the situs of General Dow’s action was not occupied terri- tory but was friendly territory subject to a civil affairs administration. Would the same result obtain? See, paragraphs 9(i) and 13, Directiveq and kreements on Civil Affairs In France, pagelo, suura.
The other side of the Dew v. Johnson coin discloses that there is then no local forum before which occupation personnel may come as plaintiffs to secure civil redress from the inhabitants with whom they have entered into business transactions in an individual capacity. Such a situation existed in Okinawa, for example, until the promulgation of Executive Order 10713, June 5, 1957 (D.A. Bull. No. 3, 10 June 1957), which opened the civil courts of the Government of the Ryukyu Islands to suits by and against military and civilian personnel of the U.S. forces (see sec .10(b)(2)).
e, &larria~esand births in occuaied territory.
A child born in occupied territory, Norway during World War I1 for example, of Norwegian parents would be of what nationality? Nor­wegian? German?
If a child was born, in occupied Norway, of a marriage between a Norwegian woman and a German soldier, would it have a dual nationality?
An American soldier stationed in occupied enemy territory desires to marry a local girl. Asming there is no reason why he should not, by whom would you advise him to have the ceremony performed? An Army chaplain? A local clergyman?
Would your advice be the same if the soldier’s fiance was an Army nurse?
As to births, see McNair, Legal Effects of War 333-335 (3d Ed, 1948). Von Glahn, The Occu~ation of Enemy Territorg 60 (1957). Wona M n On v. The Commonwealth (~ustralia 1952), Int ‘1 Law Rep., Case No. 58i”child born in German Guinea during Australian occupation of 1914).
As to marriages, see McNair, &J, 335, 336. Holdowanski v. Holdowanski (~t.Brit, 1956) 3 W.L.R. 935 (polish army chaplain per- formed ceremony in Italy during World War I1 between a Polish soldier and a Polish girl). Kochanski v. KO h nsk (~t. Brit. 1957) 3 W.L.R. 619 (marriage in Polish DP camp in -3 Belgian State etc.
Germany . 2 v. (~el~ium
1949), Annual Digest, 1949, Case No. 170 (~erman military official performed ceremony between German officer and Belgian woman in occupied ~el~ium). De Alwis v. De Alwis (~alaya 1947), Annual Digest, 1948, Case No. mpanese appointed official performed ceremony between tw residents of the Japanese occupied Malayan state of ~elan~or.) ,
PART VI
THE MILITBRS GOVERNOR: LEGISLATIVE: AUTHOUTY : COUBTS
1. The Military Governor. The President’s alter eao.
a. -Madsen v. Kinsella and Note, page18, JUD~~.
OCHOA v. KERNANDEZ 230 U,.S. 139 (1913)
Facts: During the Spanish-American war, the United States military governor for Porto Rico promulgated a lljudicial ordern which amended the civil law then in force so as to reduce from twenty years to six years the period during which adverse possession must continue in order to convert an entry of possession into a record of ownership upon the public records. This order was stated to have retroactive effect. The plaintiffs, minors at the time of the “order,” claimed certain land through inheritance. The defendant, a good faith purchaser from a fraudulent vendor, claimed over .six years adverse possession.
-Issue: Was the “judicial orderu valid?
Opinion: No. President McKinley’s order to the Secretary of War stated: ‘@The inhabitants so long as they perform their duties are entitled to security in their persons and property * * *. Private property * * * is to be respected.It [see page45, supra.] Accordingly, the military governor had exceeded the authority granted him by the President as Commaride?-in-Chief.
Is the authority of a successor military governor also limited by the terms of a proclamation issued by his predecessor? See, Planters Bank v. Union Bank, page 33, puma.
There is interesting dicta in the Ochoq case to the effect that the “Judicial Ordertt amounted to an unconstitutional deprivation of property without due process of law. Does the Constitution follow the fla ? Consider, -v. ,127 F. Supp. 601 (~t. C1. 19557, reaffirmed, 161 F. Cl. 1958), page 88, Jnfra.
2. Occurxition laws. civil and crimina&.
a. Read: Pars. 363, 365, 369, 370, 271, FM 27-10.
Under Lower Saxony law, a member of the legislature could not be tried in a criminr-1 court without the consent of the House of Lords. May a British military occupation tribunal try a member of the Lower Sacony legislature for an act in violation of an occupation ordinance, without the consent of the House of Lords? See, Landwehr v. Director of Prosecutions (~rit .Control Corn, 1950), Int ‘1 Law Rep., 1950, Case No. 132.
Prior to the Peace Treaty with Japan, were United States military authorities in Okinawa free to alter Ryukuan tort law? See, Coble v. United States, 191 F.2d 604 (9th Cir. 1951), cert. den., 342 U.S. 913 (1952). The key here is the limiting phrase “unless absolutely prevented” of Article 43, HR (par. 363, supra). What facts or circumstances would operate absolutely to prevent the occupant from respecting the local laws? Refusal of local officials to cooperate? Military operations? Security considerations? Ideological conflicts? Were the Allied Powers “abso- lutely prevented” from respecting Nazi laws and institutions? See, para- graph I, General Eisenhower’s Proclamation No. 1, pagee 31-32, 9uar4. If the continuation in force of certain local laws would interfere with the accomplishment of the objects for which the war was inaugurated, would the occupant be “absolutely prevented” from respecting them? See, Sutherland, Constitutional Powers and World Affairs (1919) 80. Stone, Legal Controls of Internatio-(1954) 698, 699.
As a practical matter, who is there to question the legality, the propriety, the fairness of the occupant’s legislation? Of course, when the absent sovereign returns invocation of a doctrine somewhat loosely referred to as jus ~ostliminii–the right under which persons and things taken by the enemy in war are restored to their former state on the coming
again into ower of the nation to which they belonged allan an tine’s Law Dictionary P 2d ed. 1948)-will operate to litmus test the validity of
the occupant’s acts.
If measures taken by the military occupant are given extraterritorial effect (disputatious question in itself; see, Schwenk, Legislative Power of the Military Occu ant Under Article 43, Hague Regulations, 54 Yale Law J. 393 (1944-45) P,then third countries may have occasion to pass upon the validity of the occupant’s legislation. In Callwood v. Virain Islands National Bank, 123 F. Supp. 379 (D.v.~ .1954) and Kent Jewelry CQ.
v. Kiefer, 119 N.Y .S. 2d 242 (1952), the courts refused to recognize as valid transactions entered into in occupied territory in violation of a military government ordinance,
3. Public officials. judges. and local courts.
a. The immediate object in war is to force the enemy to surrender. But after surrender what? There are three legal possibilities; (1) dis- possess the local government altogether and administer the country by a military government; (2) dispossess the hostile regime and set up a new regime of indigenous officials willing and anxious to collaborate, and (3) permit the existing regime to continue to function under super- vision. At one time or another during World War 11 each of these three possibilities was implemented.
-NOTE
Is there a limit to the extent to which the second mentioned possi- bility may be implemented? May a successful belligerent transform a monarchy into a democratic state? A free enterprise societ into a communistic society? Do Article 43, HR (par. 363, FM 27-107, and Article 64, GC (par. 369, FM 27-10) mark the limit? Are the HR and GC applicable in the case of an unconditional surrender? See, Dalldorf and Others v. The Director of Prosecutions (~rit .Control Comm. 1949), Annual Digest, 1949, Case No. 435. Stone, Leeal Controls of International Conflict, 698, 721 (1954) . Von Glahn, -tion of Enemv Territm 273-290 (1957) .
b. Read: Pars. 422, 423, and 424, FM 27-10.

-NOTE:

Do you interpret Article 54, GC (par. 422, above) to mean that the occupant may not compel local public officials and judges to continue in office if military necessity requires it? May the occupying power re­move judges from their posts? Do you consider the provisions of para- graph 423, above, to be in derogation of Article 45, HR (par. 359, F’M 27-10)? See, Article V, Supreme Commander’s Area of Control, Law No. 2, page 58, infrq.
c •  ALVAREZ Ye SANCHEZ V.  UNITED STATES
216 U.S.  167 (1910)
Facts:  Prior to the Sywnish-American war,  the plaintiff had pur-

chased, in perpetuity, the office known as nSolicitor of the Courts of the First Instance of the capital of Porto Iiico,” and had received a patent to that office from the King of Spain. Under Spanish law such a transaction was authorized and was customary; the purchaser acquiring a property right in the office which was transferable in perpetuity. The plaintiff held the office until it was absolished by a decree of the United States military governor of Porto Mco on April 30 1900. On 12 A ril 1900, Congress passed (to take effect 1May BOO!,the Foraker Act i’ 31 Stat. 77, 79), section 8 of which provided as follows:
“That the laws and ordinances of Porto Rico now in force shall con- tinue in full force and effect, except as altered, amended or modified hereinafter, or as altered, or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the pro- visions hereof, until altered, amended, or repealed by the legis- lative authority hereinafter provided for Porto Rico, or by act of Congress of the United StatesOtf
Plaintiff filed this action to recover $50,000, the value of the office he had held, alleging that the effect of section 8 of the Foraker Act was to confiscate his property without compensation in violation of the Treaty of Peace between the United States and Spain, December 1898. That Treaty provided pertinently: “Spain cedes to the United States the island of Porto Rico * * *” Article 7. “* * * And it is hereby declared that the * * * cession * * * cannot in any respect impair the property or rights which by law belong to the peaceful possession * * * of private individuals * * *.” Article 8.
-Issue: Does the Foraker Act operate to deprive the plaintiff of a property right secured to him under the Peace Treaty?
O~inion: No. The provisions of the Peace Treaty were not intended to refer to such public or quasi-public stations as the plaintiff’s. It is inconceivable that the United States intended to restrict its sovereign authority so that it could not, consistently with the Treaty, abolish a system that was entirely foreign to the conceptions of the American people, and inconsistent with the spirit of our institutions.
Is the result in this case reconcilable today with Article 54, GC (pr. 422, FM 27-10)? See, Article 6, GC (par. 361, FM 27-10).
d. Read: Pars. 372 and 373, FM 27-10.
-NOTE
With respect to Article 23(h), HR (par. 372, FN 27-10), the British Court of Appeal in Porter v. Freudenberg (1915), said that that article ti * * * is to be read, in our judgment, as forbidding any declaration by the military commander of a belligerent force in the occupation of the enemy’s territory which will prevent the inhabitants of that territory from using their courts of law in order to assert or to protect their civil rightsn (quoted in ??I
Hackworth, Digest of International Law 364) . Do you agree with this narrow interpretation, or do you feel that the Article operates to the benefit of enemy aliens situated within the territory of a belligerent as well? How have the drafters of FM 27-10 interpreted it?
Does Article 23(h), HR, mean that the inhabitants of the occupied territory may sue the occupant and his forces in local courts? See, Coleman v. Tennessee and Lw v. Johnson, p, 49, m. If not directly, may they do so indirectly by litigation which raises in issue the validity of the occupant’s acts. In other words, does a local court otherwise having jurisdiction over the parties, have the right to rule upon the validity of the acts of the occupant? See, par. 12c, Article VII, Law No. 2, page 59,infra. See, Morgenstern, Validitv of the Acts of the Belli~erent Occu~ant, 28 Brit. Y.B. Int’l L. 297 (1951).
e. Law No. 2.
MILITARY
SUP-COMMANDER’S AREA OF CONTROL
LAW No. 2
GERMAN COIJTU’S
It is hereby ordered:
Temporary Suspension of Ordinary and Administrative
Courts

I. The following German Courts and Tribunals are hereby suspended and deprived of authority in the occupied territory until authorized to re-open:
a.
The Oberlandesgerichte, and all courts over which said court8 exercise appellate or supervisory jurisdiction;

b.
All subordinate codts over which the Reichsverwaltungs- gericht exercises appellate or supervisory jurisdiction;

c.
All other courts not dissolved under Article 11.

2.
The Reichsgericht and the Reichsverwaltungsgericht have until further notice no authority over any court or otherwise in the occupied territory.

3.
Every decision, judgment, writ, order or direction issued by any such court or tribunal after the effective date of tbis law and dur- ing the period of suspension shall, within the occupied territory, be null and void.

ARTICLE I1
Dissolution of Special and Party Courts and Tribunals
4. The jurisdiction and authority of the following courts and tri­bunals in the occupied territory are hereby abolished:
a.
The volksgericht shof ;

b.
The Sondergerichte;

c.
All courts and tribunals of the NSDAP and of its organiza­tions, formations and connected associations.

Authority for Re-opening Ordinary Civil and Criminal Courts
5. Each Oberlandesgericht, Landgericht, and Amtsgericht within the occupied territory shall re-open and resume its usual functions only when and to the extent specified in written directions of Military Gov- ernment.
Qualifications of Judges, Prosecutors, Notaries and Lawyers
8. No person shall be qualified to act as judge, prosecutor, notary, or lawyer, until he shall have taken an oath in the following f om:
nI swear by Almighty God that I will at all times apply and ad- minister the law without fear or favour and with justice and equity to all persons of whatever creed, race, colour or political opinion they may be, that I will obey the laws of Germany and all enactments of the Military Government in spirit as well as in letter, and will constantly endeavour to establish equal justice under the law for all persons. So help me God.”
Every person who takes the foregoing oath is no longer bound by the obligations of any oath of office previously subscribed by him.
9. No person shall act as judge, prosecutor, notary, or lawyer without the consent of Military Government.
Limitations on Jurisdiction
10. Except when expressly authorized by Military Government, no German Court within the occupied territory shall assert or exercise juris­diction in the following classes of cases:
a. Cases involving the Navy, Army, or Air Forces of any of the United Nations or any persons serving with or accompanying any thereof;
b.
Cases against any of the United Nations or any national of the United Nations;

c.
Cases arising under any German law suspended or abrogated by Military Government;

d.
Cases involving offences against any order of the Allied Forces, or any enactment of Military Government, or involving the construction or validity of any such order or enactment;

e.
Any case over which jurisdiction has been assumed by a Military Government Court;

f.
Any case or class of cases transferred by Military Govern- ment to the exclusive jurisdiction of !filitary Government Courts.

g.
Cases involving claims for money against the German Govern- ment or any legal entity existing under public law.

11. Any proceedings taken or decision rendered after the &ithereof by a German Court in any cases excluded from its jurisdiction shall be null and void.
AIlTICLE VII
Powers of Military Government
12. The following powers of control and supervision are without prejudice to the subsequent exercise of any additional or other powers, vested in the Military Government:
a.
To dismiss or suspend any German judge, Staatsanwalt or other court official; and to disbar from practice any notary or lawyer;

b.
To supervise the proceedings of any court, to attend the hearing of any case, whether in public or in camera, and to have full access to all files and records of the court and documents in the cases;

c.
To review administratively all decisions of German trial and appellata courts and to nullify, suspend, commute or otherwise modify any finding, sentence or judgment rendered by any such court;

d.
To transfer to the jurisdiction of the Military Government Courts any case or classes of cases;

e. To control or supervise the administration, budgets and personnel of all German courts authorized to function.
13.
No sentence of death shall be carried out without the consent of Military Government.

14.
No member of the Allied Forces nor any employee, of whatever nationality, of the Military Government, shall be required or permitted to testify in any German court without the consent of the Military Gov- ernment.

Penalties
16. Any person violating any of the provisions of this Law shall, upon conviction by a Military Government Court,bs liable to any lawful punishment, including death, as such court may determine.
By Order of Military Government
Par. 373, F’M 27-10, speaks of suspending local courts. Where is the authority to dissolve local courts, as was done in Article I1 of Law No. 2, supra? May he dissolve both civil and criminal courts? Is there a pro- vision of HR or GC pertinent? Consider, Article 64, GC (par. 369, F’M 27-10), and Article 66, GC (par. 436, M 27-10).
4. Occupation courts.
a. Historical precedent (U.S .A*)
HEBDQUARTERS OF THE: gRMY TB\IPICO, February 19, 1847
GENELSBL ORDZRS No. 20
1.
It may well be apprehended that many grave offenses not provided for in the act of Congress “establishing rules and articles for the gov- ernment of the armies of the United state^,^ approved April 10, 1806, may be again committed–by, or upon, individuals of those armies, in Mexico, pending the existing war between the two Republics. Allusion is here made to atrocities, any one of which, if committed within the United States or their organized territories, would, of course, be tried and severely punished by the ordinary or civil courts of the land.

2.
Assassination; murder; malicious stabbing or maiming; rape; malicious assault and battery; robbery; theft; the wanton desecration of churches, cemeteries or other religious edifices and fixtures, and the destruction, except by order of a superior officer, of public or private property are such offenses.

3.
The good of the service, the honor of the United States and the interests of humanity, imperiously demand that every crime, enumerated above, should be severely punished.

4.
But the written code, as above, commonly called the rules and articles of war, provides for the punishment of not one of those crimes, even when coanitted by individuals of the army upon the persons or property of other individuals of the same, except in the very restricted case in the 9th of those articles; nor for like outrages, committed by the same individuals, upon the persons or property of a hostile country, except very partially, in the 51st, 52nd, and 55th articles; and the same code is absolutely silent as to all injuries which may be inflicted upon individuals of the army, or their property, against the laws of war, by individuals of a hostile country.

5.
It is evident that the 99th articles, independent of any refer­ence to the restriction in the 87th, is wholly nugatory in reaching any one of those high crimes.

6.
For all the offences, therefore, enumerated in the second para- graph above, which may be committed abroad–in, by, or upon the army, a supplemental code is absolutely needed.

7.
That unwritten code in Martial Law, as an addition to the written military code, prescribed by Congress in the rules and articles of war, and which unwritten code, all armies, in hostile countries, are forced to adopt-not only for their own safety, but for the protection of the unoffending inhabitants and their property, airnut the theatres of military operations, against injuries contrary to the laws of war.

8.
From the same supreme necessity, martial law is hereby declared, as a supplemental code in, and about, all camps, posts and hospitals may may be occupied by any part of the forces of the United States, in Mexico, and in, and about all columns, ascourts, convoys, guards and detachments, of the said forces, while engaged in prosecuting the exist- ing war in, and against the said republic.

9.
Accordingly, every crime, enumerated in paragraph No. 2, above, whether committed-1. Bg. any inhabitant of Mexico, sojourner or trav- eller therein, upon the person or property of any individual of the United States1 forces, retainer or follower of the same; 2. By any individual of the said forces, retainer or follower of the same, upon the person or property of any inhabitant of Mexico, sojourner or trav- eller therein, or 3. By any individual of the said forces, retainer or follower of the same, upon the person or property of any other individual of the said forces, retainer or follower of the same-shall be duly tried and punished under the said supplemental code.

10.
For this purpose it is ordered, that all offenders, in the matters aforesaid, shall be promptly seized and confined, and reported, for trial, before Military Commissions to be duly appointed as follows:

11.
Every military commission, under this order will be appointed, governed and lidted, as prescribed by the 65th, 66th, 67th and 97th of the said rules and articles of war, and the proceedings of such commissions will be duly recorded, in writing, reviewed, revised, disapproved or approved, and the sentences executed–all, as in the cases of the pro- ceedings and sentences of courts-martial; provided, that no military commission shall try any case clearly cognizable by any court-martial and provided also that no sentence of a military commission shall be put in execution against any individual, whatsoever, which may not be, accord­ing to the nature and degree of the offense, as established by evidence,

in conformity with known punishments, in like cases, in some one of the States of the United States of America.
12. This order will be road at the head of every company of the United States’ forces, serving in Mexico, or about to enter on that theatre of war.
By command of Major General Scott:
(signed) H. L. SCOTT
A.A.A.G
-NOTE
Military commissions established under General Orders No. 20 had jurisdiction over two categories of offenders; militmy offenders not subject to trial under the then Articles of War, ar-d indigenous of­fenders under the laws of war. It is this latter category with which we are here concerned. Promulgation of General Orders No. 20 marked the beginning of military commissions. It is interesting to learn that General Scott submitted a draft of this order to the War Department prior to his departure for Mexico to relieve General Taylor. It was quickly returned to him as “too explosive for safe handlingon Birk­himer, Military Government and Martial Law 97 n. (1892). Non quod dictum est. sed auod factum est. in jure Ins-~icitur.
Note that the jurisdiction of military cor.:nissions was limited to the offenses specifically mentioned in the second paragraph of the’ order. Unprivileged belligerents, Mexican guerrillas, were tried by a *Council of War,” yet another innovation of General Scott’s. For fur­ther historical information, see, Winthropfs Militarv Law and Precedents 832-834 (2d ed. 1920). Madsen v, Kinsellq, page18, sum%.
b. Establishment.
(1) Read: Par. 436, FM 27-10.
MILITARY GOVEIWMEXT4ERMBNP
SUPREME COWDEZIS BREA OF CONTROL
ORDINANCE NO. 2
MILITARY GOVERNMENT
It being necessary to establish Military Courts for the trial of of­fences against the interests of the Allied Forces, it is ordered:
Kinds of Military Courts
Military Government Courts in the occupied territory shall be: General Military Courts, Intermediate Military Courts, Sumtliary Military Courts.
ARTICLE I1
Jurisdiction
1. Military Government Courts shall have jurisdiction over all per- sons in the occupied territory except persons other than civilians who are subject to military, naval or air force law and are serving under the command of the Supreme Commander, Allied kpeditionary Force, or any other Commander of any forces of the United Nations.
2,      Military Government Courts shall have jurisdiction over:
a.      All offences against the laws and usages of war;
b,      All offences under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces;
c.      All offences under the laws of the occupied territory or of any part thereof.
Powers of Sentence
3.      a. A General Itilitary Court may impose any lawful sentence in- cluding death.
b.
An Intermediate Mi.litary Court may impose any lawful sen%ence except death, or imprisonment in excess of ten years, or fine in excess of 2,500 pounds-($lO,OOO).

c.
A Summary Military Court may impose any lawful sentence ex- cept death, or imprisonment in excess of one year, or fine in excess of 250 pounds-($l, 000) .

dm     Within the limits of the powers given to the court, both a term of imprisonment and a fine may be imposed for the same offence, and a further term of imprisonment within the powers of the court may be imposed in default of payment of the fine.
e.
In addition to or in lieu of sentence of fine; imprisonment or death (within its powers), a Nilitary Government Court may make. such orders with respect to the person of the ac- cused and the property, premises or business involved in the offence as are appropriate and authorized by the rules of Military Government Courts; and shall have power to impound money or other objects, to grant bail and accept and forfeit security therefor, to order arrest, to compel the attendance and order the detention of witnesses, to administer oaths, to punish for contempt, and such other powers as may be necessary and appropriate for the due administration of justice.

f.
Where an offence is charged under the laws of the occupied territory or any part thereof, the punishment whidmay be imposed shall not be limited to the punishment provided by such laws.

ARTICLE IV
Composition of Courts
4.
All members of the Military Government Courts shall be officers of the Allied Forces.

5.
General Military Courts shall consist of not less than three members. Intermediate and Summary Military Courts shall consist of one or more members.

6.
Advisers to sit with any court may be appointed either by the court itself or by an authority empowered to appoint such class of court. They shall give the court such advice and assistance as it may require but shall have no vote.

7.
Clerks, interpreters, and other persons necessary for the con­duct of proceedings, may be appointed by the court.

8.
Every accused before a Military Government Court shall be en­titled :-‘

a.
To have in advance of trial a copy of the charges upon which he is to be trLed.

b.
To be present at his trial, to give evidence and to examine or cross-examine any witness; but the court may proceed in the absence of the accused if the accused has applied for and been granted permission to be absent, or if the accused is believed to be a fugitive from justice.

c.
To consult a lawyer before trial and to conduct his own de- fence or to be represented at the trial by a lawyer of his own choice, subject to the right of the court to debar any person from appearing before the court.

d.
In any case in which a sentence of death may be imposed, to be represented by an officer of the Allied Forces, if he is not otherwise represented.

e.
To bring with him to his trial such material witnesses in his defence as he may wish, or to have them summoned by the court at his request, if practicable.

f.
To apply to the court for an adjournment where necessary to ensble him to prepare his defence.

g.
To have the proceedings translated, when he is otherwise unable to understand the language in which they are conducted.

h.
In the event of conviction, within a time fixed by the Rules of Military Government Courts, to file a petition setting forth grounds why the findings and sentence should be set aside or modified.

By Order of Ydlitary Government
-NOTfi
Current CB/P~G doctrine prescribes military government courts of the type and jurisdiction as those created by Ordinance No. 2, above. See, par. 32, Fivi 27-5, October 1947.
The act of a United States military governor in establishing a
military government court (military commission) is resumed to be that of the President. Pennvwit v. Eaton, 15 Wall. 382 f 1872). Fiechanics
and Traders Bank v. Union Bank, 22 Wall. 276 (1874). Madsen v. Kinsellq, page 18, m, See als~,Article 21, UCPIJ; note MCPI 1951, p. 420.
c . Jurisdiction.
Madsen v. Kinsella, pagel8, JRID~Q,
-NOTE
It should be noted that the opinion of the Supreme Court in the recent case of Reid v. Covert, 354 U.S. 1(1957), wherein it was held that Article 2(‘= UCMJ, cannot constitutionally be applied to authorize court-martial trials for capital offenses of servicemen’s civilian de- pendents overseas in time of peace, does not vitiate the holding in Madsen v. Kin ella in the least. In Reid v. Covert, the court by way of a footnote *63 stated: “Madsen v. Kinsellq, 343 U.S. 341, is not con­trolling here. It concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas, the army commander can es- tablish military or civilian commissions as an arm of the occupation to trv everyone in the occuufed area. whether they are connected with the arm or notO1’ (Emphasis supplied.) Everyone? See, paragraph 13, FM 27-10, Not dissuaded by footnote 63, Mrs. Madsen sought habeas corpus upon the authority of Reid v. Covert, It was denied. Kadsen v. Overholser, 251 F.2d 387 (D.c. Cir, 1958), cert. den., 26 L.W. 3277, April 1, 1958. For evidence of recent advocacy that Madsen v. Kinsellq supports the jurisdiction of a general court-martial to try a civilian employee of the Department of the Asmy in Berlin, Germany, see, United States v. Wilson, U.S.C.M.A. (NO, 9638), 28 March 1958.
(2) As to offenses.
-Read: Pars. 369, 436, and 440, FM 27-10.
-NOTE

Generalizing, is it correct to say that indigenous criminal courts have jurisdiction over offenses committed by inhabitants against local law, whereas military occupation courts have jurisdiction over offenses committed by inhabitants against occupation decrees?
Is the jurisdiction of a military commission limited by territorial considerations? See, par. 13, FM 27-10. Note, Jurisdiction Over Extra;­territorial Crimes, 41 Cornell Law $ 276 (1465-56).
d. Composition.
-Read: Par. 436, FM 27-10.
-NOTE
What does the term vnon-political military court”mean? Does it mean that the American practice during World War I1 of appointing civilian attorneys and judges to the courts during the latter stages of the occupation is now illegal? See, Madsen v. Kinsellq, suDrq. Par. 32, FM 27-5.
Does it mean that a transfer of the occupation courts to the supervision of the Secretary of State as was done in Germany (see, Madsen v. inse el la) ,is now illegal?
Does it forbid the appointment of a court of mixed composition, u., occu ation personnel and indigenous personnel? See, re Condarelli (~taly 1952y, Int ‘1 Law Rep., 1952, Case No. 133 (~ritish occupation court in Ethiopia composed of one British judge and two Italian judges).
e. Procedure.
(1)      PUBLIC PROSECTICOR v. LATZA AND OTHERS (Norway 1948), Int ‘1 Law Rep., 1950, Case NO. 147
Facts: The accused were charged with a war crime in that they as members of a German occupation court had sentenced members of the Nor- wegian resistance movement to death for the offense of failing to give information to the German authorities on acts of sabotage committed by Norwegian citizens. It was also contended that the accused were guilty of a war crime in that they had conducted the tri’als without an observance of the minimum standards required for a fair trial. The accused were acquitted at the trial court and the Public Prosecutor appealed.
Issue: Did the.accused commit war crimes?
-Held: As to the first charge, the Court held that the accused did not act in violation of international law. As to the second charge, the court said: has been contended that the proceedings before the German court were not genuine proceedings, mainly on the ground that evidence was adduced by means of reports from unnamed persons, such reports being read at the trial by the prosecutor, and also on the ground that the accused had not previously been acquainted with all the evidence. The proceedings before the ‘court-martial’ are open to severe criticism, more particularly having regard to the fact that there was no written indictment, that no counsel appeared for the defence, that all the evidence was circumstantial (and hearsay), that the proceedings were vexy short and summary, and that confirmation of verdict and sentence by higher military authority seemed to have been secured before the trial in a manner which provided no guarantees for the persons on trial. The fact that the Germans desired to dispose of the cases before them as speedily as possible does not suffice to justify these shortcomings. …I cannot, however, attach decisive importance to these matterson
NOTE

–

Are judges entitled to a rather special consideration at the post- liminiwn?
(2) Read: Pars. 437, 441, 442, 44, and 248, FM 27-10.
There shall be no ex- ost f cto criminal legislation. Article 67, GC (par. 437, FM 27-10-hom are the provisions of Article 67 directed? Is this unusual?
Would the result in the Latzq case be different if tried today? See, Article 71, GC (par. 441, FM 27-10) and Article 72, GC (par. 442, F’M 27-10).
(3) “Subject to any applicable rule of international law or to any regulations prescribed by the President or by any other competent authority, these tribunals will be guided by the applicable principles of law and rules of procedure and evidence prescribed for courts-martialf1 (par. 2, MCM, 1951).
flMilitary government tribunals are not governed by the provisions of the Manual for Courts-martial nor by the limitations imposed on courts- martial by Articles of War. Experience has demonstrated that in ad- ministering justice in an occupied area, it is desirable to follow forms of judicial procedure which are generally similar to the forms of pro- cedure to which the people are accustomed. Thus, in hbope, the rules governing procedure in military government courts incorporated features of continental practiceN (pr. 32c, FM 27-5, October 1947).
Are these two paragraphs hopelessly in conflict? From the occupant’s standpoint, would it be better to use his own judicial procedure than to adopt that of the occupied territory? From a postliminium standpoint, would judgments of occupation courts entered without compliance with local law and procedure be considered valid? Consider, Article 43, HR (par. 363, FM 27-10) .
Should the prosecutor before military government courts have the right to appeal acquittals?
f. Punishments.
(1) Read: Pars. 438, 439, 445, and 448, F’M 27-10,
NOTE
With respect to the second paragraph of Article 68, GC (par. 438, FM 27-10), what does the term nmilitary installationn include? Would it include a house occupied by an officer of the occupation forces? Would it include a public building shared by a CA~Gdetachment and the local authorities? Would it include the city water works if guarded by an occupation soldier?
With respect to the third paragraph of Article 68, GC, does it mean that a state may abolish capital punishment on the eve of occupation and thus thwart its enemy? Is this why the United States made a reservation here? Similar reservations were made by Canada, Great Britain, the Netherlands, and New Zealand.
Related to the matter of punishments is the question of double jeopardy. No provision of the GC specifically mentions it. Is it im­plicit within “general principles of law” (~rt .67, GC; par. 437, FM 27-10) and/or nfair and regular trialu (Art. 5, GC; par. 248, FM 27-10). Is it wholly a question of local law and the application of Article 43, KR (par. 363, F?4 27-10)? Of course, the double jeopardy situation with which we are here concerned involves the same accused in successive appearances before an occupation tribunal to answer for the same offense. That a person may be punished both by an occupation court and by a local court for the same act seems clear under principles of dual sovereignty. See, Double Jeo~ard~ 1954,
Case (~erman Fed. Rep. 1954), Int ‘1Law Aep., 480 (trial by allied rnilitary government court is not bar to later trial by German court for same offense).
g. Appeals.
-Xead: Par. 436, F’N 27-10.

-NOTE
Is the occupant required to establish courts of appeal? See, Article 73, GC (par. 443, FN 27-10) .
Is habeas corpus available to an enemy national convicted and sentenced to confinement by a.military commission of the United States? See, Johnson
v.
Eisentr , 339 U.S. 763 (1950); but see, Walker, Militw Lay 505 (1954). &? international military comonission? See, Hirotq v. MacArthur 338 U.S. 197 (1948) .

h.
Civil jurisdiction.

Read: Pars. 369 and 436, FM 27-10.
-NOTE
Do these paragraphs have any relevance to the question whether a belligerent occupant may vest his occupation courts with jurisdiction over civil cases? Play he? Under what circumstances? Consider, Article 43, HR (par. 363, FM 27-10). See, The Grawshot, 9 wa1i. 129 (1869).

Pm VII
PROPERTY AND PFXICUREMENT IN OCCUPIED TERRlTORY
1. Property generally.
Read: Par. 393, F’M 27-10.
NOTE
–

The conventional nrles of belligerent occupation dealing with prop erty seem to be an obstacle course of semantical barriers. One must discriminate between seiz;e and and confis-and destra and ~eauester and reauisition and contribute and M; between private pro~erty and public uropertv, movables and Jmmovableg, of a atam ~haracter and of a non-military character, etc. The high degree of compartmentalization which results dictates a detailed consideration, compartment by compartment.
2. The basic discrimination; public vs. private.
Read: Pars. 394 and 405, FM 27-10.
NOTE
–

Conceding that paragraph 394 supplies helpful criteria, is not the predicate for the application of these criteria lacking? Is the predi- cate local law or the national law of the occupant? If under Soviet law, for example, collective farms were to be considered as private property, would such a determination be controlling, notwithstanding resort to the criteria of para raph 394 might produce a contrary con- clusion? Does Article 43, HR f par. 363, FM 27-10) supply the answer, or is it another conflict of laws problem to be resolved under the law of the forum?
3.      Public property.

a.      Immovables.
Read: Pars. 400,401,and 402, FM 27-10.

Here a distinction seems to be made between immovables of a military
character and immovables of a non-military character, What is the
nature of the distinction?

With respect to immovables of a non-military character, what is
the usufructuary principle? Does it place the occupant in a position
analogous to that of a life tenant at common law?

May an occupant take over a state-owned prison and use it to con- fine his own soldiers? Would the usufructuary principle apply?
May an occupant take over a state-owned park and establish a ReJi
center there? Would the usufructuary principle apply?

Play an occupant take over a state-owned university and establish a
MCO academy there? Would there be any liability for rent or damages
involved? Consider the implications of par. 405,FM 27-10.

b.     Movables.

Read: Pars. 396, 403 (1st par.), and 404,FM 27-10,

FRENCH STATE v. ESTABLPSS-S WNMOUSSMU (France 1948), Annual Digest, 1948, Case No. 197
Facts: This was an appeal by the French State against a decision
by the court of first instance of Blois to the effect that it could not

recover twenty metal wine vats, the former property of the French army supply department, which had been seized by the German occupation au­thorities and had been sold by them to the defendant company. The lower court held that the seizure and disposition was in accordance with in- ternational law. On appeal, the French State contended that the wine vats must be regarded as immovable property of which the occupant, according to Article 55, HR (par. 400, FM 27-10), was only the adminis- trator and usufructuary. This argument was advanced by reference to the French concept of “immeuble par destinationIt which, apparently, in certain circumstances juridically assimilates permanent fixbures to the immovable property with which they are connected. The vats which were in dispute here had been permanent fixtures in an army storehouse.
Issue: Were the German occupation authorities authorized by the Hague Regulations to seize and sell the vats?
O~inion: Yes. It* * * The occupant becomes the owner of property of the occupied state which is movable, susceptible to use for operations of war and thus subject to seizure. He may freely dispose of it, whether by using it for military purposes, by taking it to his own territory, or even by alienating it in order to transform it into cash which may be used for the conduct of hostilities.
In the present case the vats were used by the French army supply department for the provisioning of the French army. They were thus used for operations of war. As movable property they could be seized by the German army in conformity with Article 53, paragraph I, of the Hague Convention. They thus became the property of the occupant. . . .
The belligerent States are bound to comply, in the conduct of war, with the usages and customs defined by international conventions, not by the legislation of the occupied State. The legal concept of Lmmeuble Dar destination is a creation of French law. . . . It does not exist in a number of legal systems. In particular, German law does not recognise it. N$e of the articles of the Hague Convention refers to it. It cannot figure in that Convention without the formal consent of the contracting parties whose municipal law does not recognise it. Consequently the Hague Convention, in speaking of the movable and immovable property of the occupied State and its inhabitants, must be considered to use these terms in the customary sense attached to them by the law of all States.”
-NOTE
It would appear from the foregoing that state-owned movable prop- erty, except that devoted to one of the privileged purposes mentioned in Article 56, HR (pr. 405, FM 27-10), which is susceptible of any military use may be seized, taken, confiscated, etc., at will. Title to the property passes to the occupant, of course, as soon as he re­duces it to his possession. Having acquired title to the property, he is free to do with it what he will. Do you agree?
4. Private property.
a. Generally.
Read: Pars. 397 and 406, F’M 27-10.
-NOTE
Is the extent of the general protection afforded privatk property sim ly that it may not be confiscated? How literally should Article 46 HR f par. 406a, FM 27-10), be taken? For example, would it be illegal for an occupant to promulgate a decree announcing that the private automobile of any inhabitant found driving after curfew will be con- fiscated?
b. Specifically.
(1) Susceptible to direct military use (war supplies).
Read: Pars. 403 (2d par.), 408, 409, and 410, FN 27-10.
-NOTE
Do the provisions of these paragraphs provide for the confiscation of certain private property? For what do they,provide?
N .V. DE BATAAF’SCHE PETROLEUM MAsTSCHAPPLI & ORS v. THE WAR DAMAGE COblMISSION
22 Malayan Law Journal 155 (c.A. Singa re 1956), reproduced in 51 American Journal of International Law 802 P”1957).
Facts: During World War 11, crude oil stocks in the Netherlands East Indies, which were owned by Dutch corporations, were seized by Japanese occupation forces and used for Japanese civilian and military purposes. They were not, however, requisitioned by the Japanese under the Hague Regulations. Large quantities of these stocks (since refined) were found in Singapore at the end of the war, and were seized by the British my as war booty. The Dutch corporations claimed compensation, Their claim was dismissed below and they have taken this appeal.
Issue: Did the Japanese seizure lawfully divest the original owners of title to the crude petroleum?
Ooinion: No, $8 agafnst thf rr background sf facts that X now turn to consider the numerous issues of law which have been raised in this case. As I have already indicated, they fall broadly under two heads, municipal law and international law; but it would be wrong to suppose that this division represents a true dichotomy, and indeed the complexity and multiplicity of the arguments in this case may well be due, in part at least, to a tendency to treat the issues as belonging rigidly to one or other of these branches of the law. The substantial contest in this case is between the appellants and the respondents’ predecessors in title, the Japanese belligerent occupant, who is an International Person, and therefore it follows that when their competing claims are considered under municipal law, there is inevitably introduced an ele­ment of international law in view of the international status of one of the claimants. ,..
I now proceed to consider whether the Japanese belligerent occupant had a right, under international law, to seize the crude oil in the ground and so deprlve the appellants of their title to it. It was com- mon ground that if such a right did exist in the belligerent occupant, it was derived from Article 53 of the Hague Regulations. Before, however,
I examine this Article, it is necessary to consider a formidable sub- mission advanced by the appellants which, if sound, renders a detailed examination of the Hague Regulations academic. The appellants contended that Japan commenced the war, or at least launched an invasion against the Netherlands Indies, in order to secure the oil supplies of that country, because oil is an indispensable raw material in conditions of modern warfare. Therefore, the Japanese invading armies, as soon as they had established the necessary military superiority, seized the appellantst installations, “lock, stock and barrel,” and then proceeded, as speedily as possible, to repair and put them into operation, using for that purpose civilian technicians, called “Gu~zo~us,” who where at- tached to the army and placed under service discipline. The whole op- eration, according to the appellants1 argument, was prepared and executed by the Japanese military forces in accordance with Japan’s Master Plan to exploit the oil resources of the Netherlands Indies in furtherance of their war of aggression. The plan was successful and enabled the Japanese forces in South East Asia in the course of the war to distribute vast quantities of oil, both crude and refined, to meet the needs of military and civilian consumers in the territories under their control and in Japan proper. This exploitation of the oil resources of the Netherlands Indies was, so the appellants contend, premeditated plunder of private property by the Japanese State on a totalitarian scale and, as such, it was contrary to the laws and customs of war.
The appellants rely upon the evidence of Japanese naval and mili­tary officers to prove the facts upon which this suhmission is based. The Chief of the Fuel Section of the Supply Depot of the Ministry of the Navy in ToQo stated that he was concerned in the spring of 1942 with plans for restoring the oil fields of the Netherlands Indies and later he toured the captured oil fields and arranged for personnel and material to be sent to repair them and put them into working order again. From October 1943 onwards he was stationed in Singapore which was then being used as a storage and forwarding point for naval and military fuel; some of it was crude oil which was forwarded to Japan to be refined, some of it was aviation spirit and diesel oil and was used by the army and navy in Singapore. Further details concerning the processing, refining and distribution of the oil were given by the Japanese military officers who were stationed at Palembang and at the Headquarters of the Petroleum Office in Singapore which clearly show that in addition to supplying military requirements, the oil was also used to meet civilian demands. In my view this evidence establishes that the seizure of the appellants1 oil installations in Sumatra by the invading army was carried out as part of a larger plan prepared by the Japanese State to secure the oil resources of the Netherlands Indies, not merely for the purpse of meeting the requirements of an army of occupation but for the purpose of supplying the naval, military and civilian needs of Japan, both at home and abroad, during the course of the war against the Allied Powers.
These facts being proved, the next question to be determined is whether seizure of private property on such a scale and for such pur- poses was contrary to the laws and customs of war. On this point there is, fortunately, considerable authority available from decisions arising out of the war in Europe. First, there is the decision of the Nuremberg Tribunal, delivered in 1946, in which the principle is laid down that to exploit the resources of occupied terr3.tori.e~ in pursuance of a deliberate design to further the general war of the belligerent without consideration of the local economy, is plunder and therefore a violation of the laws and customs of war. This principle has been approved and further expounded in the cases of In , (1947) U.S. Military Tribunal, Nuremberg, and In e 1948 U.S .Military Tribunal,
3?P
Nuremberg, and In re Krauch,-7-Y1948 U.S. Military Tribunal, Nuremberg, where it was applied to the acts of German industrialists who system- atically plundered the economy of occupied territories by acquiring sub­stantial or controlling interests in private property contrary to the wishes of the owners. The present case is much stronger as the plunder of the appellantsf property was cammitted not by Japanese industrialists but by the Japanese armed forces themselves, systematically and ruth- lessly, throughout the whole period of the occupation. In my opinion, these authorities fully support the appellantsf submission. Accordingly I reach the conclusion that the seizure and subsequent exploitation by the Japanese armed forces of the oil resources of the appellants in Sumatra was in violation of the laws and customs of war and consequently did not operate to transfer the appellantsf title to the balligerent occupant.
I now turn to the alternative argument urged by the appellants under this head, namely, that in any event the seizure was illegal as the crude oil in the ground was not “munitions-de-guerretl within the meaning of Article 53 of the Hague Regulations because it was then a raw material and, moreover, an immovable raw material. According to the British Manual of ivfilitary Law issued by the Ammy Council pursuant to the provisions of Article I of the Hague Regulations, “munitions-de­guerre,” are such “things as are svsceptible of direct military use.” The respondents accept thisinterpretation of “munitions-de-guerre,” as indeed they are bound to do since they are, in fact, the Crown although not appearing as the Crown eo nomine in these proceedings. Consequentlythey are compelled to argue that crude oil in the ground, although a raw material, is susceptible of direct military use or at least had a sufficiently close connection with direct military use to bring it within Article 53. No direct authority was cited for the proposition that raw materials could be llmunitions-de-~errefl but the respondents referred to a passage in ODDenheim’s Internetional Law (7th ~dition) at page 404 where it is said that “all kinds of private movable property which can serve as war material, such as . . . . . . cloth for uniforms, leather for boots . . . . . . .may be seized . . .for military pur- poses . . .I1 which they contend supports the view that raw materials can be “munitions-de-guerre.” On the other hand, Professor Castren, a Finnish Professor, in “Law of War and Neutrality,” at page 236, says that “Raw materials and semi-manufactured product8 necessary for war can hardly be regarded as munition of war.” It may be that certain types of raw material or semi-manufactured products, such as cloth for uniforms and leather for boots, which could possibly be made up into finished articles by army personnel without the assitance of civilian technicians and outside plant can, without stretching the meaning of “munitions-de-guerre” unduly, be regarded as having a sufficiently close connection with direct military use to bring them within Article 53. It is not, however, necessary to decide this point as the facts of this case show that there is no such close connection in the present instance. According to the evidence, elaborate installations and civilian tech- nicians were needed by the army to enable them to appropriate this oil and prepare it for use in their war machines. It had to be extracted from underground reservoirs, and then transported to a refinery, and then subjected to a complicated refining process before it was of any use to any one. In thise circumstances, it cannot be said, in my opinion, that at the moment of its seizure in the ground, the oil had a sufficiently close connection with direct military use to bring it within the meaning of llmunitions-de-izuerren in Article 53.
A further argument advanced by the appellants was that llmunitions- de-merre” does not include an immovable and as the crude oil, when seized, was part of the realty, it was not a ltmunitions-de-merre.ll The appellants conceded that certain things included in the categories specified in Article 53 which partake of the character of the realty, as for example, a railway transportation system, are seizable but they contended that these are exceptional cases and ordinarily Article 53 does not apply to immovables. It was contended that oil in the ground could not be regarded as an exceptional case and in support of this view, reliance was placed on a dictum of Lord Simon in S Treuhand v. Procurator ~enera1,.(1953) A.C. 232, (at page y-262 to the effect that “it was not legitimate to seize enemy private property on land (unless it was ammunition or arms which could be used against the enemy in fighting). . . Lord Simon was not, of course, intending to give an exhaustive interpretation of “munitions-de-guerrefl but, it would, I think, be a startling extension of his phrase llarms or ammunition which could be used against the enemy in fightingn to say that it could in- clude minerals in situ. In my judgment, Article 53 was intended to apply, generally speaking, to movables and only in those categories where the description is wide enough to include things which may belong, in part, to the realty, as, for example, “applicances for the transport of persons or thingsM mentioned at the beginning of the second paragraph
of the Article, is it permissible to interpret it so as to include im­movables. wMunitions-de-guerren is not, in my view, such a category. Accordingly I hold that crude oil in the ground, being an immovable and not susceptible of direct military use, is not a nmunitions-de­guerreI1 within the meaning of Article 53.
The appellants, who were nothing if not prolific in preferring al- ternative arguments, contended that even if crude oil in the ground could be seized as llmunitions-de-guerren under Article 53, the seizure in this case was invalid because no receipt was given to the owners or any one representing them. Article 53 does not in terms require a receipt whereas Article 52 (which deals with requisitioning) expressly provides for one; consequently it might be said, as a matter of pure construction, that the omission in Article 53 was deliberate on the part of those who framed the Regulations and such a requirement ought not to be implied. This, however, is not the view taken by municipal courts which have construed this Article. In the case of Billotte, (1948) Netherlands District Court, Arnhem …it was held that the failure of German military personnel to give a receipt when seizing a car rendered the seizure invalid. The Court of Cassation at the Hague took a similar view in Hinrichsen’s case in 1950. In that case a German Customs Fron- tier Guard seized two motor cycles without giving a receipt to the owner and the Court held tha% “this may not be done without in some way being officially acknowledged, in order to ensure compliance wtth the rule that such goods must be returned and compensation fixed when peace is madean In reaehing their decision the Court of Cassation referred to the report of the proceedings at the First Hague Peace Conference (1899) in which it was stated that although it had not seemed opportune to make a special stipulation dth regard to a receipt, the Codt,tee nevertheless were of the opinion that the fact of seizure should be clearly stated one way or another if only to furnish the owner with an opportunity to claim an indemnity. Furthermore, as the Court of Cassa- tion pointed out, the British Manual of Military Law contains a state­ment to the same effect. The respondents sought to distinguish these authorities from the present case on the ground.that a receipt or ac- knowledgment was not required when the seizure was otherwise notorious, No authority was cited in support of this view, but in any case it does not meet the case where, as here, the fact of seizure is notorious but the quantity seized is unknown. The appellants do not know and have no means of discovering how much crude oil was seized from their oil reservoirs during the Japanese occupation and even if everything else had been done according to law, it would not now be possible for them to claim the compensation expressly provided for in Article 53. It would have been quite a simple matter for the Japanese belligerent occu- pant to have given an official acknowledgment to the Custodian of Enemy Property, who, so the Court was told, was appointed by the Japanese in Sumatra to represent absent owners, and to have furnished him with proper records of the crude oil they extracted; but nothing of the kind was done and the failure to do so, was, in my opinion, an infringement of Article 53 and renders the seizure invalid.
The last alternative argument advanced by the appellants on the construction of Article 53 was that even where the seizure is valid in all respects, the belligerent occupant obtains only a provisional title to the seized property and must restore it to the original private owner if it is still in esse at the cessation of hostilities. They contended that in the present instance the seized property was still in esse when the hostilities ended and therefore the rights of the ap- pellants revived and the property should have been restored to them. In support of this proposition, the appellants relied, first, upon the express words of the Article which states that “seized articles must be restored . . . when peace is made,” secondly, upon the views of Westlake (war, Vol. 11, page 115) and Rolin (~e Droit Moderne de la guerre, paragraph 492), and lastly on two cases decided in municipal courts in 1943 and 1947 (-eat et Hazard v. Cie de Traction sur les Voies N vi ables, (1943) Dijon Court of Appeal; Austrian Treasw v. m,I—1947) Supreme Court, ~ustria) . The respondents conceded that the provisions about restoration apply to some seizures and that if, for example, the seized article had been a motor lorry, the belligerent occupant would have been bound to restore it to the owner; but they contended that it would be contrary to common sense to apply these pro- visions to consumable war materials, such as petroleum, which are not readily identifiable as belonging to any particular owner. Such a distinction does not appear to be based on any principle but rather on the supposed difficulty of carrying out the provisions of the Article in practice. But if, in fact, there is no practical difficulty in identifying the owner of the property, as was the position in this case, I can see no justification for departing from the plain words of Article 53. The respondents further objected that if there was a duty to restore these petroleum stocks, it did not arise until peace was actually made. It is obvious, however, that the right of the belligerent occupant to use “munitions-de-merren must cease with the cessation of hostilities, and it appears to me that when this occurs, the only right then remaining in the belligerent occupant is a right to retain possession of the property on behalf of the owner, all other rights in the property revesting in the original owner. Accordingly I am of the opinion that, on any view of the matter, the appellants were entitled to require the belligerent occupant to hold these surplus petroleum stocks on their behalf until such time as they could be restored in accordance with the provisions of Article 53.
1 have now dealt with the many contentions put forward by the ap- pellants in respect of the Hague Regulations. At the outset of his argument, counsel for the appellants claimed that in seizing this crude oil, the Japanese military forces had contravened the rules of inter- national law in every single particular. It was a sweeping claim but I am bound to say that I think he has made it good [that] the sei~ure of
the oil resources of the Netherlands Indies was economic plunder, the crude oil in the ground was not a “munitions-de-nuerre,” the failure to give a receipt was a fatal omission and the duty to restore the un­consumed petroleum was not fulfilled. In all these matters, the bel- ligerent occupant, in my judgment, contravened the laws and custotns of war and consequently failed either to acquire a valid title for himself or to deprive the appellants of the title which I have found existed in them prior to the seizure.
Before I leave the subject of the Hague Regulations I will refer briefly to the appellants’ contention that in a war of aggression, such as this was, the aggressor state cannot in any circumstances acquire any legal title under the Regulations. This question was not very f’ully argued as counsel for the appellants asked that the appeal should be decided on narrower grounds although he naturally asked for the point to be kept open. Certainly this contention raises grave issues, reaching and extending far beyond the present case, touching indeed the springs of international law. The compelling logic of those who assert that all legal rights should be refused to an aggressor is opposed by per­suasive reasoning of those who maintain that such rules of war as are accepted by States should continue to prevail, notwithstanding the illegality of the war. Learned jurists differ profoundly on this matter and xmmicipal courts have yet to give a decisive answer. In this state of uncertainty of the law, it is not, I think, desirable to express views on a matter which is not necessary for the decision in this case, and accordingly I do not pass upon it.
For these reasons I am of the opinion that the appeal should be al- lowed. The appellants should have the costs of the appeal and of the proceedings before the Board. “other opinions omitted. )
-NOTE
Omitted from this reproduction is that part of the courtts opinion which discussed the question whether the claim should be disallowed on the theory that under Netherlands Indies law the act of the Japanese in refining crude oil into petroleum operated to vest them with title to the end product. On that point the court held that a belligerent occu­pant who violates the Hague Regulations may not purge himself of that violation by invocation of a municipal law, the application of which is irreconcilable with the Hague Regulations.
This case is noted in 71 Harvard Law Rev. 568 (1958).
Were the oil stocks here movables or immovables? Does it make any difference?
If crude oil in the ground does not qualify as llmunitions-de-guerre,” what does? Is “war supplies” too broad a translation? Is ltammunition of wartt a more precise translation?
To qualify as “munitions-de-guerretl is it necessary that the prop- erty be capable of direct use in either attack or defense? See, Lauter­pacht, The Haaue RemiLattons and the Seizure of Munitions De Guerre, 32 Brit. Y. Be Int’l L. W8 (1955-56). See, also In re Esau (~olland 1949), Annual Digest, 1949, Case No. 177 (scientific instruments used for re- search held not to be nmunitions-de-guerrell) .
In 1864, the Supreme Court of the United States sustained the va­lidity of a seizure by Union Forces of bales of cotton from a lady’s Louisiana plantation. Mrs. Alexander’s Cotton, 2 Wall. 404. See, also, Lamar. Executer v. Browne, 92 U.S. 187 (1875), (involving bales of privately-owned cotton seized months after the end of hostilities) . Could Confederate cotton qualify today as “munitions-de-guerrew?
Is the occupant required to furnish a receipt to owners of rivate property seized as “munitions-de-guerrefl? Does Article 53, HR P par. 403, FM 27-10) mention receipts?
If the occupant does mnish a receipt, does he thereby acquire title to the property or does he merely acquire a right to use it? See, Statens
v.      Pedersen     enma mark 1948), Annual Digest, 1949, Case No. of two horses). Why?
May the occupant seize private property as nmunLtions-de-guerren in such quantity as he desires?
Assuming private property is validly seized as nmunitions-de-gueme,n is there any limitation upon the use the occupant may make of it thereafter? May he use it outside the occupied territory?
(2) Not suscentible to direct Utam use (reaumtions) .
w: Pars. 407, and 412 thru 417, FM 27-10.
N.V. De Bataafsche Petroleum Maatschappli & Ors. v. The War Damage Commission, page 77, suBrq.
-NOTE

The first important limitation to notice here is that the requisitions must be for the needs of the occupation forces (and nadministrative per- sonnel,” in the case of foodstuffs and medical supplies). Does this mean that the occupant may not requisition for the needs of his forces outside the occupied territory? See, In re Fiebiq (~olland 1950), Annual Digest, 1949, Case No. 180 (criminal proceedings against Dutch officials responsible for mass removal of Dutch machinery to .~ermany).
Does it mean that the occupant may not requisition for the needs of the inhabitants? If food is lacking, is he obliged to bring in his own food to feed the inhabitants? See, par. 384, FM 27-10.
If goods are requisitioned and a receipt given, does title pass to the occupant? See, Vitse v. Brasser and the Dutch State (~olland 1948), Annual Digest, 1948, Case No. 200 (tractor seized from French farmer; receipt furnished). If no receipt is furnished, is there no transfer of title? See, Johansen v. Gross o or way 1948), Annual Digest, 1949, Case No. 176 (motor seized; no receipt). Would a BFP for value from the occupant be protected? Is all this true with respect to privately owned realty as well as personalty, u.,may occupant acquire title to realty requisitions? See, par. 407, FM 27-10.
Suppose the occupantfs seizure of private property cannot be sus­tained as a valid requisition, does it follow, JDSO facto that he ac- quires no title to the property, and possibly, that he has conrmitted a war crime? What if the owner voluntarily consents to the seizure? See, In re Krauch and Others (I.G. Farben rial), (u.s. Mil. Trib. Nuremburg 1948), Annual Digest, 1948, Case No. 218 (“negotiations” with owners in occupied territory).
The services of a Dutch corporation were requisitioned by the German occupation forces to repair six airfields in Holland. After the war the officials of the corporation were prosecuted by their sovereign for having aided the enemy in violation of a Dutch decree-in-exile. The officials defended on the ground that the German requisition was valid under Article 52, HR, and that they were under a legal duty to obey the occupant. What result? In re Directors of the Amsterdamse Ballast Maatscha~~ii(~olland 1951), Int ‘1Law Rep. ,. 1951, Case No. 206.
m: Just prior to the occupation of the Aggressor city of Martel, Aggressor officials transferred the ownership of.all state-owned truck and automobile tires and batteries there to the city. As legal adviser to the occupation authorities, what significance do you attach to this transfer? Consider, paragraph 405, F’M 27-10.
HYUQ: A farmer in occupied territory has protested that he has been re- duced to poverty by the requisition of all of his cattle de­ferred), while other farmers in the area have had few if any of their cattle requisitioned. As legal adviser to the occupation authorities you ascertain that the reason this farmer has been singled out is simply because his cattle are of better quality. Do you see a legal question involved?
c . Compensation.
SOVIET REQUISITION (AUSTRIA)CASE
(~ustria 1952) Int ‘1 Law Rep., 1952, Case No, 143

Facts: The plaintiffs, owners of a hotel requisitioned by the Soviet army of occupation, claimed compensation from the Republic of Austria (defendants herein) for thc use of t5eir property by the Occu- pant. It was contended on their behalf that as the Occupant had failed to pay rent for the use of their property and as by virtue of Article 52 of the IIague Regulations they were entitled to receive rent, the liability of the Occupant must fall on the Republic of Austria; and further, that according to general principles of law the burdens im­posed by the Occupant must fall equally upon all the inhabitants of an occupied country and that they, the plaintiffs, were therefore entitled to claim compensation from the Republic of Austria. On beha of the Republic of Austria it was contended that the Hague Regulations con- ferred rights only on States, and not on individuals, and that in any event Article 52 thereof imposed a duty only on the Occupant, and not on the occupied country; and further, that there were no general principles of law which required that the burdens imposed by the Occupant must fall equally upon all the inhabitants of an occupied country.
Issue: Is the occupied state legally obliged under international law to reimburse its inhabitants for things requisitioned by the occupant?
O~inion: No, The Court held that the plaintiffs themselves could not derive any benefits from the operation of Article 52 of the Hague Regulations, which, in any event, did not impose any liabilities upon the Government of an occupied country vis-a-vis its inhabitants, and that the Republic of Austria was accordingly not liable to pay compen­sation to the plaintiff. The Court said:
nAccording to the Hague Regulations, the plaintiffs cannot success­fully assert a claim against the defendants. Quite apart from the fact that, except where otherwise provided, an international t-~eaty confers rights and imposes duties only on subjects of international law, m., on the States parties to the treaty, the following considerations have to be borne in mind: Article 52 of this Convention draws a distinction between the supply of goods and services.. Goods must, as far as possible, be paid for in cash, alternatively receipts must be given in respect thereof and payment made as soon as possible. It is within the dis- cretion of the Occupant to do the one or the other. Neither this nor any other provision of the Hague Regulations, however, imposes a duty on the occupied State to compensate its inhabitants in respect of goods which they have been compelled to supply to the Occupying Power. There can be no doubt–and this is conceded by the plaintiffs–that the requisition of the plaintiffs’ property does not constitute servi~es required from the plaintiffs, S;L;L., the personal performance of work, but compels the supply of goods within the meaning of the said Article 52. Accord­ing to the Hague Regulations, only the Occupying Power is under a duty to pay for goods supplied. Having regard to the fact that the Treaty is silent on the matter, the occupied State can be compelled to pay compensation only if, and to the extent that, it has undertaken such a liability by virtue of its own municipal law. There can be no doubt that there is no Austrian law providing for any such duty to pay compen- sation.
“Lastly, the plaintiffs rely in support of their claim on general principles of law. They contend that the costs of occupation fall on the population of the occupied country from the beginning, and therefore have to be borne by the occupied State. This is not correct. It follows clearly from Article 52 of the Hague Regulations that the Occu- pying Power is entitled directly to demand contributions from individual inhabitants of the occupied State. The extent to which the burden has to be taken off the shoulders of the individual inhabitants immediately affected and distributed among the population in general is nowhere re- ferred to in the Treaty; it is a matter for xxunicipaJ. legislation. This contention, therefore, cannot-any more than the other contentions- result in the plaintiffs1 claim being successful, because in this case also there is no rule of municipal law which would allow such a claim to be recognized.
NOTE

–

If the occupied state is under no international legal obligation to reimburse its inhabitants, who is? The occupant? See, SOC. Tiy,ber Soc. Zeta. Soc. Omblq v. Minlisteri Esteri e. Tesoro (ftaly 1951 Law Rep., 1951, Case No. 192 (suit by Yugoslav corporations to recover value of things requisitioned by Italian forces in ~u~oslavia).
Article 76 of the Italian Peace Treaty provided pertinently:
* * * The Italian Government agrees to make equitable compensation in lire to persons who furnished supplies or services on requisition to the forces of allied or Associated Powers in Italian territory and in satisfaction of non-combat damage claims against the forces of Allied or Associated Powers arising in Italian territoryn (61 Stat. 1402).
SEERY v. UNITED STBTES
127 F. Supp. 601 (~t. C1. 1955)

Facts: bing the American occupation of Austria in World War I1 the chateau of Mrs. Seery was requisitioned and used as an officers1 club. Mrs. Seery, a citizen of the United States and a resident since 1935, filed this action in the Court of Claims to recover just compen- sation for the taking of her property (in addition to rent, she sought reimbursement for damage to her chateau and the loss of many of its furnishings). The Government made a motion to dismiss her petition and for summary judgment.
-Issue: Is Mrs. Seery entitled to compensation under the Vth Amend- ment for property taken and used by United States forces in wartime in liberated Austria ?
O~inion: Yes. The Government contends that because the property was not in the United States when it was taken, the Constitutional guaranty of just compensation, contained in the Fifth Amendment is in­applicable. We have recently held to the contrary. Turney v. United States, 115 F. Supp. 457, 126 Ct .C1. 202, 215. We recognized that there were no precedents upon the question, but it seemed to us that, since the Constitutional provision could be applied, without incon- venience, to such a situation, it ought to be so applied. In the Turney case, supra, the plaintiff was an alien corporation, whereas the instant plaintiff is an American citizen. If that fact is material it is to her advantage.
The Government contends that the plaintiffls property, probably meaning her real property, was “enemy propertya within the meaning of those words in international law, and was therefore subject to temporary appropriation by our armed forces. It cites Chief Justice Marshall’s opinion in The Thirty Hogsheads of Sugar v. Boyle, 9Cranch 191,3 LoEd. 701,to the effect that a sugar plantation in a Danish island seized by England in the War of 1812 was enemy property, end that the sugar produced therefrom was likewise enemy property, subject to seizure as a prize, when found on board a British ship. It cites Young v. United States, 97U.S. 39, 60,24L.M. 992, which concerned cotton located in Confederate territory, but belonging to a British citizen, It quotes this language from the opinion in that case:
“All property within enemy territory is in law enemy property, just as all persons in the same territory are enemies. A neutral, owning property within the enemy’s lines, holds it as enemy property, subject to the laws of war; and, if it be hostile property, subject to capture.
The Government cites The Juragua Iron Co,, Ltd. v. United States,
42Ct. C1. 99;Id., 212 U.S. 297, 306, 29 S. Ct. 385, 388, 53 L.Ed. 520,
and quotes the following language from the Supreme Court’s opinion:

. The plaintiff, although an American corporation, doing business in Cuba, was, during the war with Spain, to be deemed an enemy to the UnLted States with respect of its property found and then used in that country, and such property could be regarded as enemy’s property, liable to be seized and confiscated by the United States in the progress of the war then being prosecuted; indeed, subject, under the laws of war, to be destroyed whenever, in the conduct of military operations, its destruction was neces­sary for the safety of our troops or to weaken the power of the enemy.
It cites Green v. United States, 10Ct. C1. 466, a case of a landlord of
a building in Nashville, Tennessee, who, before the capture of the city
by Union Troops, voluntarily went into and remained in Confederate
territory. The court approved the confiscation of rents due him,

In response to the Governmentts argument on this point, the plain- tiff insists that Austria was not, in July 1945, and thereafter, which was after the surrender of the German Army, enemy territory. She refers us to the Moscow-Conference Agreement, the text of which appears in a Department of State publication dated November 1,1943, which is re- produced in Document No. 351 of the House of Representatives, 78th Congress, 1st Session, The Agreement said:
“The Governments of the United Kingdom, the Soviet Union and the United States of America are agreed that Austria, the first free country to fall a victim to Hitlerite aggressicn, shall be liberated from German domination.
“They regard the annexation imposed upon Austria by Germany on March 15,- 1938, as null and void. They consider themselves as in no way bound by any changes effected in Austria since that. date. * * **
The plaintiff cites us to Office of Public Affairs, Department of State Publication 5012, European and British Commonwealth Series 43, Released May, 1953, which contains the following statements on the pages indi- cated:
(p. 2) The Moscow Pledge:
“In the Moscow Declaration of November 1, 1943, the Four Powers pledged themselves to regard, and so treat, Austria as a liberated,
* * *
not an enemy, country.
When the United States entered the war, President Roosevelt, December 9, 1941, named thz countries which had been invaded by the Axis Powers and which must be liberated. Austria was included.
9 + an
Later, August 1945, the Potsdam Agreement provided that “reparations should not be exacted from Austria. * * Sn
3) ?’Itwas pointed out to the Soviets that Austria had never been considered as an enemy state, that Austria had never declared war against any member of the United Nations, that no
U. No nation had ever declared war against Austria, and that the position of Austria, both during the war and later, had been ex- plicitly defined in the Moscow Declaration as that of a liberated country.
(p.
5) “The avowed purpose of the occupation was, first, to divorce Austria completely from German control-to undo the Anschluss of 1938. It was, second, to root out Austrian nazism and to punish war criminals. Lastly, it was to aid in the restoration of a free Austria in the spirit of the Moscow Declaration.”

(p.
864) United States Policy on Status of Austria (released to the press October 28):

The plaintiff cites Department of State Bulletin Vol. W, NO. 384, November 10, 1946, which says, at the pages indicated:
“The Department of State considers that the visit to the United States of Dr. Karl Gruber, Foreign Minister of the Austrian Federal Republic, represents an appropriate occasion to reaffirm United States policy with respect to the status of Austria.
ltDuring the period following the first World War, the United States Government steadily encouraged the developent of a free and independent Austrian state based on democratic principles, and viewed with strong disapproval all Nazi attempts to force Austria into the German Reich. The attitude of the United States toward the military occupation of Austria by Germany and its formal incorporation in the German Reich in 1938 was guided by this con­sideration and by the well established policy of the United States toward the acquisition of territory by force. WNle, as a practical matter, the United States was obliged in its effort to protect American interests to take certain administrative measures based upon the situation created by the Anschluss, this Government con- sistently avoided any step which might be considered to constitute de jure recognition of the annexation of Austria by Germany.
“In his radio address on May 27, 1941 President Roosevelt re­ferred repeatedly to the seizure of Austria, and described the Austrians as the first of a series of peoples enslaved by Hitler in his march of conquest. Secretary Hull stated at a press con- ference on July 27, 1942, that ‘this Government has never taken the position that Austria was legally absorbed into the German Reich. * * *I1
(P. 865) “The United States has accordingly regarded Ahstria as a country liberated from forcible domination by Nazi Germany, and not as an ex-enemy state or a state at war with the United States during the second World War. The Department of State believes that this view has received diplomatic recognition through the Moscow Declaration on Austria. * * * In accordance with the objectives set forth in the Moscow Declaration to see reestablished a free and independent Austria, an Austrian Govern- ment was formed after free elections were held on November 25, 1945. This Austrian Government was recognized by the four powers represented on the Allied Council, as announced simultaneously on January 7, 1946 in Vienna and the capitals of these states. In its meeting of April 25, 1946 the Allied Council, moreover, con­sidered a statement of the United States Governuientls policy in Austria made by General Mark Clark, and expressed its general
agreement with section I, *Status of A~stria,~’ in which the United
States maintained that since Austria had been liberated from Nazi
* * *
domination it should be treated as a liberated area.
“In order to clarify the attitude of the United States Govern- ment in this matter, the United States recognizes Austria for all purposes, including legal and administrative, as a liberated country. * * *I1
On the question, then, of whether the property in question was sub­ject to confiscation as enemy property, or as property in enemy terri- tory, it seems to us that the precedents cited do not support the Gov- ernment’s contention. Assuming, for the moment, that Austria was, at the time in question, enemy territory, the personal property taken was not a product of enemy soil, as in the case of The Thirty Hogsheads of Sugar v. Boyle, supra. Neither the land nor the personal property was hostile ~roaerty, as was the cotton involved in Young v. United States, supra. The property did not endanger the safety of our troops, as in the Juragua Iron Works case, supra. The owner of the property did not live within the enemy lines, voluntarily, as in Green v. United States, supra, or at all.
Oppenheim on International Law, 6th Ed. 1940, Vol. 11, says at Section 140 that Article 46 of the Hague Regulations, which says that “private property may not be confiscated” does not prevent the utiliza- tion of private buildings, temporarily, as hospitals, barracks and stables, without compensation. Wheaton on International Law, 7th Ed. 1944, page 248 says substantially the same. From the context it would seem that these departures from the Hague Regulations are permitted in order to enable a commander in the field to meet emergency situations relating to his troops and supplies. They would hardly seem to be applicable to the taking of a luxurious estate, at a remote location in a resort area, for use as an officers1 club some months after hostilities had ended.
We do not find it necessary to decide whether taking without com­pensation would have been lawful if the circumstances had been otherwise the same as they were, except that the property was in enemy territory. We think that Austria was not, at the time in question, enemy territory. The German armed forces had surrendered, unconditionally, some months before, and there were no enemy activities in Austria.
If we take at anywhere near face value the numerous expressions of the Zxecutive Department, which is responsible for the conduct of our foreign relations, Austria was, after the surrender of Germany, a nation liberated from a German occupation which had never been recognized
as lawflil by our Government. The property in question, then, was no
more subject to uncompensated confiscation that it would have been had
it been located in Holland or France or the Philippines. The fact that
the Allies chose to maintain occupation forces in Austria to prevent
possible pro-Nazi uprisings, and perhaps to keep watch over each other, seems to us not to be material.
The Government defends f’urther on the ground of an agreement made between Lieutenant General Geoffrey Keyes, the United States High Com- missioner in Austria, and the Chancellor for the Federal Government of Austria, on June 21, 1947, That agreement provided that the Unlted States would pay Austria 308,382,590 schillings (the schilling was worth at the time, about 5 cents) in full settlement for all obligations in- curred by United States forces during the period 9 April 1945 to 30 June 1947. The agreement, by its terms covered claims of the kind here in- volved, and extended not only to claims of nationals of Austria, but to persons owning property in Austria. The Austrian Government agreed to settle or adjudicate such claims and to guarantee full protection to the United States against such claims. The agreement appears in a publication of the Department of State, Treaties and Other International Acts, Series No. 1920, 61 Stat. 4168.
We are now confronted with this problem. From what we have said in this opinion, it is evident that we think that the plaintiff’s property was taken under such circumstances that she was entitled under the Fifth Amendment to the Constitution, to be paid just compensation. We must now decide whether the agreement took that right from her.
The Government cites United States v. Pink, 315 U.S. 203, 62 S.Ct, 552, 86 L.Ed. 796; United States v. Belmont, 301 U.S, 324, 57 Sect. 758, 81 L.Ed. 1134; B. Altman &: Co. v. United States, 224 U.S. 583, 32 Sect. 593, 56 L.M. 894, to the.effect that an executive agreement such as the one here present is, though not ratified by the Senate, a treaty within the meaning of Article VI, Clause 2, of the Constitution.
The plafntiff urges that even if that were so, it would be immaterial, because even a formally ratified treaty cannot accomplish what the Constitution forbids. She cites Doe ex dem. Clark v. Braden, 16 How. 635, 657, 14 L.Ed. 1090; The Cherokee Tobacco, 11Wall. 616, 620-621, 20 L.Ed 227; De Geofroy v. Mggs, 133 U.S. 258, 267, 10 S,Ct. 295, 33 L.Ed. 642. She points out that in the cases cited by the Government no constitutional rights of American citizens were impaired by the executive agreements with which those cases were concerned, and that in the Pink case, supra, Justice Douglas, 315 U.S. at page 227, 62 S.Ct. at page 564, and Justice Frankfurter, 315 U,S, at page 236, 62 S,Ct. at page 568, impliedly re- served the question as to whether the executive agreement would have been valid if it had impaired Constitutional rights of American citizens.
Whatever may be the true doctrine as to formally ratified treaties which conflict with the Constitution, we think that there can be no doubt that an executive agreement, not being a transaction which is even mentioned in the Constitution, cannot impair Constitutional rights. Statements made in our opinion in Etlimar Societe Anonyme of Casablanca
v. United States, 106 F. Supp. 191, 123 Ct. C1. 552, which point in the other direction, are hereby overruled. The decision in the Etlimar case, supra, was justified by the fact that the plaintiff there sought and obtained the compensation from France to which the executive agree- ment there involved relegated it. In Hannevig v, United States, 84 F. Supp. 743, 114 Ct, C1. 410, this court held that a formally ratified treaty between the United States and Norway, which relegated a Nor­wegian citizen who had a claim against the United States for the taking of his contract to have ships constructed in an American shipyard, to diplomatic procedures for the settlement of his claim, amounted to the withdrawal by the United States of its consent to be sued by him,
It is probably still the law that Congress could effectively de- stroy a citizen’s Constitutional right such as, for example, the right to just compensation upon a taking of his property by the Government, by a statute withdrawing the Government’s consent to be sued. But Congress have given consent to be sued for such a taking and has con­ferred jurisdiction upon this court to adjudicate such a suit. It would be indeed incongruous if the lhecutive Department alone, without even the limited participation by Congress which is present when a treaty is ratified, could not only nullify the Act of Congress consent- ing to suit on Constitutional claims, but, by nullifying that Act of Congress, destroy the Constitutional right of a citizen. In United States v. Guy We Capps, Inc., 4 Cir., 204 F.2d 655, the court held that an executive agreement which conflicted with an Act of Congress was invalid,
The Governmentls motion for summary judgment is denied, The plain- tiff’s cross-motion for summary judgment is also denied, since the facts which we have assumed for the purpose of discussing these motions have not been proved.
It is so ordered.
Subsequently, when the case was heard on the merits, the court re-
affirmed its earlier holding and awarded Mrs. Seery $11,000.  Seerv v.
United States, 161 F.  Supp. 395 (~t .C1.  1958).
The Seem case raises a number of interesting questions.  Do you

agree with the Court’s disposition of the Sugar case?
Do you agree with the limitation imposed on the authority of an occupant to requisition real estate under the Hague Regulations?
If Austria was not held under a belligerent occupation, then was it held under a pacific occupation?
If an executive agreement was no barrier to the application of the Vth Amendment, would a treaty have been a barrier? Consider, Reid v. Covert, 354 U.S. 1(1957).
What was the taking that entitled Mrs. Seery to just compensatian under the Vth Amendment; the requisition or the executive agreement?
For elucidating comments on the Seem case, see Sutherland, The Flag. The Constitution. and ~nternatioa A~reements, 68 Harv. Law Rev. 1374 (1955). Note, 49 Am. 3. Intll L. 362 (1955).
Where the United States acts unilaterally as it did in the Seery case, it seems logical that it be to the United States to whom its citizens should look for compensation. But in the Far East during World War I1 where an allied occupation was the rule, to whom should a citizen of the United States there look for compensation for a taking by the Allied Powers? The Court of Claims relying on Hirota v. MacArthur, 338 U,S. 197 (1948), (military tribunal established in Japan by SCAP for trial of war criminal is not a tribunal of U.S. for purposes of application for habeas corpus), has consistently held that Japan, not the United States, is the sovereign to whom U.S. citizens must look for compensation for private property taken by Japan in response to procurement demands issued on the authority of the Supreme Commander Allied Powers. Anglo-Chinese Shisaine: Co. v. United States, 127 F. Supp. 553 (~t.C1. 1955). Standard Vacuum Oil Co. v.
F. Supp. 465 (~t.C1, 1957). See, note, 71 Harv. Law
Once, long ago, the Supreme Court held that the U.S. military com- mander who authorized the seizure of private property of a U.S. citizen in wartime on foreign soil for use in an attack was personallv liable to make compensation for its loss. Nitchell v. Harmony, 13 How. 115 (1851). Needless to say, the decision in Mitchell, v. Harmony has pro- voked considerable comment. For a critical comment by a then leading spokesman of the military, see Birkhimer, Militam Government and Martial -Law, 255 (1892). A sure cure-all to this undesirable result lies in the enactment by Congress of legislation ratifying and validating the acts of military commanders during the occupation. “It is impossible for the courts to declare an act a tort in violation of the law of nations or of a treaty of the United States, when the Executive, Congress, and the Treaty-making power have all adoPted it.”De Camera, v. Brooke, 209 U.S. 45 (1908). See, M., Article4 b), Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3173.
d. Destruction.
Read: Pars. 56, 393b and QOb, FM 27-10.
The cases and materials heretofore have been concerned with the authority of an occupant to take and use property found in occupied territory, and with the extent of his pecuniary liability for such use. A single criterion enters into consideration where property is destroyed by the occupant. If destroyed under conditions of absolute necessity, no liability results. See, u.,Un’ted St tes v. Caltex (~hilianines) Inc. et al,, 344 U,S. 149 (1952), f-“-petroleum depots of U.S. corporation destroyed in Philippines to prevent them from falling into hands of Japanese invaders). Juraenza Iron Co. v. United States, 212 U.S. 297 (1909)~ (buildings of U.S. corporation burned in Cuba during Spanish- American War under belief they were contaminated with yellow fever germs). Of course, destruction does not operate retroactively to ex­tinguish liability for any previous use. United States v. Russell, 13 Wall. 623 (1871). Cf., United States v. Caltex, supra.
e. Sequestration,
-Read: Pars. 399 and 431,-FN 27-10.

-NOTE

Where is the juridical basis for sequestration of private property
in occupied territory? In conventional international law? In customary
international law? See, Fraleigh, The Validity of Acts of Eneq

tine Proaertlv I&&&,
35 Cornell Law Quar-

During the occupation of Greece in World War 11, the Germans in order to prevent profiteering in olive oil ordered it all placed under tbir control and permitted sales to be made only with their approval. This was contrary to Greek law. Was this legal? See, L&N (olive Oil case), (~reece1949), Annual Digest, 1948, Case No. 186. See, also, Anat% v. Soc, Electrica Coloniale Italiano (Italy 1950), Int ‘1Law Rep., 1950, 4Wn. (in Italian North Africa during World War I1 the allied governments by proclamation assumed “control over goods essential to the needs of the armed forces and the inhabitants of the occupied territoryw), See, also, Maari v. Di Marco (ltaly 1951), Int ‘1Law Rep,, 1951, Case No. 212 (Allied Military Government in Italy set up boards to control the price of timber, with powers to dictate the terms of future contracts for the sale of timber and to vary those of contracts already entered into which remained unexecut ed) .
If sequestration is legal in principle, may the occupant sequester
things that he may not requisition?

5. Procurement of Services.
a. General limitations.
Read: Pars. 32, 382, 412, 419,420, FM 27-10.

-NrnE
The right to requisition the services of indabitants of occupied territory would appear to be subject to three important limitations; (1)it must not involve the inhabitants in “taking part in the operations of war directed against their own countryn (art. 23, EIR; par. 32, F’M 27-10; art. 52, HR; par. 412, FM 27-10); (2)it must not entail a deportation or forced labor outside their country (art. 49,GC, par. 382, FM 27-10); and (3) it must not be disproportionate to the resources of the countrg (art. 52, HR, par. 412~1,FM 27-10).
Perhaps the most important limitation–certainly the most provocative-
is that against using inhabitants in “the operations of war directed
against their own country.tt What constitutes taking part in operations
of war? In years gone by a distinction was made between digging trenches
in the front lines, which was universally agreed to be prohibited, and
constructing fortifications in rear areas, which most authorities re-
garded as permissible. Is such a distinction valid today? consider,
par. 420, FM 27-10.

May an occupant validly requisition the services of a local inhabi-
tant to guide his forces? To furnish him with information? Consider,
par. 270, FM 27-10. What if the inhabitant volunteers to help? Is
the occupant obliged to refuse his services?

May an occupant validly requisition the services of inhabitants to
dig anti-aircraft gun emplacements about cities?

May an occupant validly requisition the services of inhabitants
to repair tanks and armored cars at rear area ordnance shops?

May an occupant validly requisition the services of inhabitants
to work in a munitions plant?

May an occupant validly requisition the services of inhabitants as interpreters and translators to assist in the processing of prisoners of war?
b. Conditions of emvloyment.

Read: Pars. 418and 421, FM 27-10.

Private property may be requisitioned only for the needs of the army
of occupation. Is this true wlth respect to the requisition of private
services?

Does Article 52, HR (par. 412, FiYl 27-10), require that the occupant pay wages to inhabitants whose services have been requisitioned? Consider, paragraph 416, 3% 27-10.
Is the requirement of Article 51, GC (par. 418, FM 27-10) that a fair wage be paid applicable, as it has been suggested, only for services in aid of civilian needs? See, Stone, Legal Controls of International Conflict 712 (1954) .
A practice during World War I1 was to pay for requisitioned services with food. Is that practice now illegal?
Suppose there is a shortage of manpower in the occupied territory. May the occupant compel women to work at tasks the legislation in force in the occupied country prohibits? Consider, the implications, if any, of Article 27, GC (par. 266, FM 27-10).
PAKr VIII
PUBLIC FINANCE

1. -Taxes.
Read: Pars. 425, 426, and 427, F’M 27-10.
-NOTE
In Liaabue v. Finanze (1taly 1952), Int ‘1Law Rep., 1952, Case No. 137, the Court said: “It is the opinion of writers, and it appears, in­deed, from the wording of that Article [48] that the obligation to re- spect so far as-is possible the tax system already in force in the occupied territory, as distinct from the obligation to defray the costs of administration on the same scale as the legitimate ~overnmenb, does not disable the Occupying Pover from imposing new taxes or abolishing or modifying those already in existence. And on this basis, orders of the Occupying Power cancelling customs duties on goods imported for military purposes or for the needs of the occupying force may be seen to be justified. But, if the rule laid down in Article 48 is not to be deprived of all force as a provision designed for the protection of the population of the occupied territory, it must be held to require that the imposition of new taxes or the remission of old ones shall be ef- fected by measures of a general character. Fiscal impositions or exemp- tions effected under colour of the Occupant’s power of taxation by particular orders, and creating in effect privileges for individuals prejudicial to the general civil order which the Occupant is bound to maintain, must be regarded as contrary to the international laws of war.”
Although both par. 426b, FM 27-10, and the Ligabue case seem clearly to stand for the proposition that the occupant may increase taxes, some authorities take the position that he may not. See, a.,
Von Glahn, The Occuwation of Enem Territorv 150 (1957). Von Glahn states that it is obvious that the occupant is legally unable to increase taxes (id., 151). Are you in accord?
May the occupant withhold income taxes from the wages paid inhabitants whose services he has requisitioned? Consider, par. 418, I’M 27-10.
Local law may require employers to contribute to unemployment, health insurance and similar welfare funds, Is the occupant who utilizes the services of indigenous personnel legally bound to make such con- tributions?
2. Customs Duties
Read: Par. 376, F’M 27-10.
Ample authority exists for the proposition that a belligerent oc­cupant may establish a customs house, license and regulate commercial ship ing, and impose customs duties. United States v. Rice, 4 Wheat. 246 r. 1819), (~ritish occupation of Castine, Me., during War of 1812). Fleming v. Paae, 9 How, 603 (1850), page 37, supra. Doolev v. United States, 182 U.S .222 (1901), (US. occupation of Puerto Rico during Spanish-American war) .
Does Article 48, HR (par. 425a, FM 27-10), have any application to the subject of customs duties?
If a shipper pays the customs duties assessed by the occupant, is he insulated against a nunc Dro tunc assessment by the legitimate sovereign upon the latter’s return? See, United States v. Rice, suDra. Does it depend upon whether the occupant’s assessment was valid under international law? See, Ligabue v. Finanze (ltaly 1952), Inttl Law Rep., 1952, Case No. 137.
3. Contributions.
-Read: Pars. 428 and 429, FM 27-10.
The exaction of contributions is as old as war itself, It was the,
traditional means of sparing a city from pillage.

Is there a limit on the amount of contributions that may be exacted
from the inhabitants of a community? Must contributions be proportionate
to the resources of the country as is the case with requisitions (par.
412a, FM 27-10)?

May an occupant exact contributions to secure funds with which to
pay for goods and services that he has requisitioned? Would such a
practice violate the spirit of the Hague Regulations?

Is there an obligation to repay contributions?

4. Currency.

a. Occupation currencx.

-Read: Par. 430, FM 27-10.
-NOTE
Where is the juridical basis for an occupant to issue his own cur- rency? Is it implied in Article 43, HR (par. 363, FM 27-10)? See, Aboitiz & Co. v. Price, 99F. Supp. 602 (D. Utah 1951). Is there .a basis in customary international law as well? See, Hearinas on Occumtion Currencv Transaction before Committees on A~~ro~rfatf~ns.
Armed Services and Banking ahd Currency (80th Con? ., 1st Sess., 1947,pp. 72-84; Bishop, International Law 615-618 1953)) .i
What does the occupant use to cover hid,occupation currency?

Does occupation currency imply a promise on tbb part of the occupant to pay? Is payment a matter to be resolved later by the terms of an armistice or peace treaty? See, Fairman, Some Observations on Militaq Occumt.lon, 32 Mime Law Rev. 319 (1948).
Military currency was also used by the United States and Great Britain in liberated countries such as France, Belgium, and the Netherlands, This, of course, pursuant to a civil affairs agreement. See, a,,
par. 3, Memo NO. 2, Directives and Aveements on Civil Affairs in France, pagelo, sums. So much of this currency as was used for the payment of troops was made good at the end of the war in dollars and sterling respectively. So much as was used to pay for supplies and services procured locally was charged as an off-set against lend-lease, See, Fairman’s article cited in the preceding paragraph.
From an accounting standpoint, the following is of interest:
“The appropriation accounting procedure used by the Army in connection with the issuance of military currency is fully adequate to safeguard the control of Congress over the size of military ap propriations.
flSimultaneously with the issuance of BPI currency in Sicily, the Army set up an appropriation accounting procedure to insure against the possibility that the issuance of such currency would have the effect of increasing the Army’s appropriation beyond that provided by the Congress. The procedure used is to debit the Army’s appropriation in an amount equivalent to all military disbursements made in currency, such as payment of wages to troops and purchases of supplies. No similar debit is made in the case of disbursements of AM lire for purely local government purposes, such as payment of local government employees and maintenance of hospitals, schools, etc. The amounts thus debited against the appropriation are set up in a special suspense account in the Treasury and will be avail­able in connection with any final settlement of financial responsi- bility for the AM currency, It is understood that the British Army and Treasury are following a similar procedure .” U.S. Treasury Memo on Occupation Currency. Sept. 23, 1943 (~earin~s
on Occupation Cur­rency Transactions before Committees on Appropriations, Armed Services and Banking and Currency, U.S. Senate, 80th Cong,, 1st sess., 1947, pp. 72-84.
b. Rates of exchange.
EISNER v. UNITED STATES 117 F. Supp. 197 (~t. C1. 1954)
Facts: Plaintiff, a U. S. citizen, had an account in a Berlin bank dating back to a period before the Allied occupation. In the beginning, the occupation authorities closed all such accounts. Later in 1948, the Allied occupation authorities issued an ordinance calling in the old currency consisting of Reichsmarks to be exchanged for new Deutsche Marks at the rate of ten to one. The ordinance was expressly inapplicable to such accounts as that of the plaintiff. In 1949 the United States commandant in Berlin authorized such accounts to be converted at the rate of twenty to one if the owner of the deposit was a national of one of the United Nations. Plaintiff sues for just compensation claiming that the twenty to one conversion rate operated to confiscate 95% of her account.
Issue: Did the action of the U.S, commandant constitute a taking of plaint iff Is property without just compensation?
Owinion: No. The plaintiff 5s not entitled to recover. The task of occupying powers in a great and complex country such as Germany, whose own Government had completely collapsed, was an almost insuperable one. Certainly it included the power to establish a rational monetary system. The difficulties of such a reform were so great that it was long, per­
haps too long, delayed. But until a stable currency was established, economic recovery lagged, the population suffered, and the financial burden upon the occupying powers continued. The hoped-for benefits of the currency reform were realized almost at once. Like any other funda- mental change of law or Government policy, it brought hardships to some people. Such hardships cannot, of course, be regarded as creating claims against the Government, else all legal change would become fiscally im­possible,
The currency reform here in question was a sovereign act, reasonably calculated to accomplish a beneficial purpose, and if it did have any adverse effect upon the plaintiff, she cannot, under well-settled prin­ciples, shift that effect to the public treasury.
It is not necessary for us to decide whether the fact that the property here in question was outside the United States would be a bar to the plaintiff’s claim.
The Government’s motion for a smry judgment is granted, and the plaintiff’s petition is dismissed.
It is so ordgred.
. -NOTE
What criterion exists upon which to determine the lawfulness of the rate of exchange fixed by the occupant? Is he an insurer against inflation? Is he some sort of a fiduciary? See, par. 430, FM 27-10.
The German practice during World War I1 was to issue near value­less occupation currency in large quantities as a device for stripping the occupied area of its goods and its labor for the benefit of Germany. Was this illegal?
c . Banks and banking.
HAW PIA v. CHINA BANKING CORP.
(philippines 1949) ,’Annual Digest, 1951, Case No. 203

Facts: Before the Japanese occupation of the Philippine Islands the plaintiff owed the defendant bank, a Filipino concern, a debt which was secured by a mortgage on land. During the occupation period the plaintiff paid, in Japanese occupation currency (so-called “Mickey Mouse” money), the amount of the debt to the Bank of Taiwan, which had been appointed by the Japanese military authorities in the Philippines as the liquidator of the defendant bank. After the war plaintiff requested the defendant bank to cancel the mortgage. The bank refused, claiming that plaintiff’s payment to the Bank of Taiwan was not a satisfaction of the debt. The plaintiff instituted this action to compel the defendant to cancel the mortgage.
Issue: Was plaintiff’s payment.in occupation currency to the Bank of Taiwan a satisfaction of the debt?
O~inion: Yes. The Court said: I’ he Japanese military authorities had power, under the international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not a confiscation of the properties of the bank ap­pellee, but a mere sequestration of its assets which required the liqui- dation or winding up of the business of said bank. . . .
“Before the Hague Convention, it was the usage or iractice to allow or permit the confiscation or appropriation by the belligerent occupant not only of public but also of private property of the enemy in a territory occupied by the belligerent hostile army; and as such usage or practice was allowed, a fortiori, any other act short of confiscation was necessarily permitted. Sec. I11 of the Kague Regulations only pro- hibits the confiscation of private property by order of the military authorities (art. 46), and pillage or stealing and thievery thereof by individuals (art. 47). ..The belligerents in their effort to control enemy property within their jurisdiction or in territories occupied by their armed forces in order to avoid their use in aid of the enemy and to increase their own resources, after the Hague Convention and specially during the first World War, had to resort to such measures of prevention which do not amount to a straight confiscation, as freezing, blocking, placing under custody, and sequestrating the eneqy private property, Such acts are recognized as not repugnant to the provisions of Art. 46 or any other article of the Hague Regulations. …
. ..It having been shown above that the Japanese Military Forces had power to sequestrate and impound the assets or f’unds of the Chlna Banklng Corporation, and for that purpose to liquidate it by collecting the debts due to said bank from its debtors, and paying its creditors, and therefore to appoint the Bank of Taiwan as liquidator with the consequent authority to make the collection, it follows evidently that the payments by the debtors to the Bank of Taiwan of their debts to the China BankZng Corporation have extinguished their obligation to the
latter. …
“The fact that the money with which the debts have been paid were Japanese war notes does not affect the validity of the payments. . . .
[1n conclusion, the court said:] mwhatev,er might have been the intrinsic or extrinsic worth of the Japanese war-notes which the Bank of Taiwan has received as full satisfaction of the obligations of the ap- pellee’s debtors to it, is of no consequence in the present case. ,..
the Japanese war-notes were issued as legal tender at par with the Philippine peso, and guaranteed by the Japanese Government ‘which takes full responsibility for their usage having the correct amount to back them up’ (~roclarnation of Jan. 3, 1942). Now that the outcome of the war has turned against Japan, the enemy banks have the right to demand from Japan, through their States or Governments, payments or compensa+ion in Philippine pesos or U.S. dollars as the case may be, for the loss or damage inflicted on the property by the emergency war measure taken by the enemy. If Japan had won the war or were the victor, the property or money of said banks sequestrated or impounded by her might be re- tained by Japan and credited to the respective States of which the owners of said banks were nationals, as a payment on account of the sums payable by them as indemnity under the treaties, and the said owners were to look for compensation in Philippine pesos or U.S. dollars to their respective States. . ..And if they cannot get any or suf­ficient compensation either from the enemy or from their States, be­cause of their insolvency or impossibility to pay, they have naturally to suffer, as everybody else, the losses incident to all wars.”
-NOTE
It is interesting to note that Professor Hyde, whose book, International Law Chiefly as Interwreted and Amlied by the United States (2d ed. 1947), relied upon by the Court to support the result reached, wrote a bitter criticism of the Haw Pia case. See, 24 Philippine Law Journal 141 (1949). He argued that to hold that payment to the liqui- dator in worthless occupation currency was a satisfaction of the debt was to rob the creditor bank of its property. The result in the case, he contended, gave judicial sanction to a violation of Article 43, HR, by the Japanese. In, Gibbs et al. v. Rodrimes et al. hili lip pines 1950)~ Intll Law Rep. 1951, Case No. 204, the Court replied to Professor Hyde and reaffirmed its holding in Haw Piq.
Suppose the debt had been contracted during the occupation and had been denominated in occupation currency. If money was still owing at the end of the occupation, in what currency should it be payable? At what rate of exchange? Consider, Thorinnton v. Smith, 8 Wall. 1 (1868), (suit, subsequent to occupation, to secure payment of a note given prior to occupation to secure payment of land purchased in Confederate terri- tory; note, by its terms, payable in Confederate money). See, also
Aboitiz and Co. v. Price, 99 F. Supp. 602 (D. Utah 1951), (inmate of 1 Japanese prisoner of war camp in Philippines borrowed money clandestinely from Filipino bank; loan made in occupation currency, but repayable in dollars). The Aboitiz case is commented upon in 50 Mich. Law Rev. 1066 (1952).
The Haw Pia, case illustrates anather form of permissible se ues- tration of private property. In Gates v. Goodloe, 101 U.S. 612 ?1879), the Supreme Court upheld the sequestration of rents from property in occupied territory due landlords absent in Confederate territory.
5. State debts.
-Read: Par. 403, FM 27-10 (1st par .) .
-NOTE
The first paragraph of Article 53, HR (par. 403, FM 27-10), raises, rather than answers, the question whether the occupant may collect debts due the ousted sovereign. The question is complicated by the argument that as state debts constitute obligations between the debtors d and the ousted sovereign and as occupation does not transfer sovereignty, the occupant does not succeed to the privity enjoyed by the ousted sov- ereign. Some authorities accept this rationale and take the position that the occupant cannot legally collect any debts due the state. See, Von Glahn, The Occu~ation of Enemy Territory 156-159 (1957). Other au- thorities, resorting to Article 48, HR (par. 425a, F’M 27-10), contend that as the occupant is obliged to defray the expenses of administration of the territory, he ought to be authorized to collect those debts falling due during the period of his occupation. See, Stone, Controls of International Conflict n7 (1954).
In Germany, General Eisenhower was instructed to impound or block all credits held by or on behalf of the German national, state, pro­vincial, and local governments, and agencies and instrumentalities thereof, pending determination of future disposition. See, par. 6e(l), Appendix C, Combined Directive for Militam Government in Germany Prior to Defeat or Surrender, page 5, pupr~i.
1. Civil matters.

WEISS v. mss (~uxemburg1948), Annual Digest, 1949,Case No. 173
Facts: Certain dffficulties arose in the administration of an

–
estate commenced during the German occupation of Luxemburg and not yet
completed. The plaintiff sought to apply Luxemburg civil law, while
the defendant attempted to set up a rule of German civil law which had
been introduced by the occupation authorities and was in force when the
administration began.

Issue: Do the legislative enactments of the occupant apply after
the termination of the occupation to matters arising during the period
of occupation?

O~inton: No. “The legal consequences of events which occurred during the occupation are governed by the ordinary law of this country. German laws then introduced and forcibly imposed lost all validity in this country as the immediate result of the liberation of Luxemburg.”
NOTE
–

The old Roman concept of the >us ~ostlimia is concerned with re-
storing the legal state of things upon the termination of the occupation
and the return of the legitimate sovereign to power. See, Ireland
Jus Postlimin~i and the Coming Peacg, 18Tulane Law Rev. 584 (19441.
More than just the continued application of the occupant’s legislative
enactments is involved; the validity of the judgments of his courts, the
validity of contracts and property transactions entered into during the
occupation, to mention a few, all fall within the ambit of postliminium.

Unless the rovisions of the treaty of peace deny him this (see, e.g., Article 4f b), Treaty of Peace with Japan, Sept. 8, 1951, 3 UST 3173 (1952,)), the returning sovereign has the power to do what he will with respect to occupation transactions. To the extent that nations have customarily chosen to the same thing there can be said to be law. See, Morganstern, Val %its of the Acts of the Belligerent Occu~ant, 28 Brit. Y .B. Int ‘1. L. 291 (1951). Generally, the courts of the re- turning sovereign will not upset a transaction fundamentally right and fair under his concept of law and justice. For example, in Hefferman v. Porter, 46 Tenn. 323 (1869), a reconstruction era state court recognized the judgment of an occupation court in a civil case as res the issues involved; whereas in laser^ v. Rocheray, Wall. 437 1873),
17 +Of the Supreme Court vacated the judgment of an occupation court entered without the defendant having been granted an opportunity to present Ms defense.
Do you see the postliminium question involved in any of the cases
studied thus far?

2. Criminal matters.
Read: Par. 447, FM 27-10.
PERgLTA v. DIRECTOR OF PRISONS 75 Phil. Iiep. 285 (1945)
Facts: During the Japanese occupation of the Philippines, Peralta, a local policeman, was convicted of the offense of robbing in violation of a law enacted by the Japanese puppet government, and was sentenced to life imprisonment. This is a habeas corpus action brought before the courts of the restored government of the Philippihe Islands.
Issue: Does the judgment of an occupation court in a criminal case cease to be valid upon the-return of the legitimate sovereign?
Opinion: Writ granted. After first determining that the law of which Peralta had been convicted of violating was of a political com­plexion, in that it could be violated only by persons charged or connected with the supervision and control of the production, procurement, and distribution of food and other necessaries-enacted to prevent such items from reaching guerrillas-the court held that under the doctrine of postliminium Peraltals conviction must be considered as having ceased to be valid, so fact^, upon the liberation of the Philippines by General Mac Arthur.
-NOTE
Accord; Crfminal Files (~reece) Case, (~reece 1951), Int’l Law Rep., 1951, Case No. 195.
Would the result in the Peraltq case have been the same if Peralta had been charged with the robbery of a bank in violation of a local law continued in force by the Japanese?
UNCONVENTIONAL AND 1RREX;ULA.R COMBATANTS

1.
Genera. There exists no greater threat to the security of occupied territory than the combatant who masquerades as a civilian. Behind his disguise he may be a spy, a saboteur, a partisan, or a guerrilla. Whichever he is, the law of war has provided for him.

2.
Unconventional combatants.

a. Spies.
Read: Pars. 74, 75, 76, 77, 78 and 248, F’M 27-10.
-NOTE
What is a s~?Is it essential that he act clandestinely? See, par. 75, FM 27-10. In re Wulstz (France 1947), Annual Digest 1948, Case No. 127 (accused wore uniform of resistance movement).
What is the extent of the protection granted a spy b’JT the laws of war? A prompt trfal before a prompt execution?
For an excellent article analyzing the juridical basis of spging aad the disposition made of spies, see Baxter, So-Called ‘Unmivilened Bellinerencvt: S~ies. Guerrillas. and Saboteurs, 28 Brit. Y.B. Inttl
L. 323 (1951).
IN RE MAIiTIN
45 Barbours Sup. Ct. Rep. 142 (N.Y. 1865)

Facts: After Lee’s surrender at Appo~wttox, Martin, a former Con- federate officer, was arrested by General Hooker and charged with the offense of arson and spging, both of which were alleged to have occurred
in the city of New York during the war. This is an action of habeas corpus brought by Martin who contends that he is illegally restrained by General Hooker.
-Issue: May one be held and tried as a spy after he has returned to his own lines and the war has ended?
O~inion: No. The Court in granting the writ said: nI know of no case in modern history or in reports of cases decided by the courts where any person has been held or tried as a spy who was not taken be- fore he had returned from the territory held by his enemy, or who was not brought to trial and punishment during the edstence of the war .”
-NOTE
Accord; In re Me er (~renchMil. Trib. 1948), Annual Digest, 1948, Case No. 152T-­
German intelligence officer tried subsequent to demobilization for wartime espionage) .
In December of 1944 the German 150th Brigade, commanded by Otto Skorzeny, was ordered to follow the spearhead of the Ardennes offensive across the American lines. The men of the Brigade dressed in captured American uniforms and wore German parachute overalls over these uniforms. Once inside the American lines, they were to discard their overalls and, dressed in American uniforms, seize three key bridges. When the spearhead failed, Skorzeny attached his Brigade to an S.S. corps and participated in the Palmedy attack. Here certain of his men were seen fighting in American uniforms. After the war Skorzeny and nine of his officers were arrested and charged with violating the laws of war. All were acquitted. Trial of Otto Skorzen~ and Others, Case NO. 56, 1947, 9 Law Rep. of Trials of War Criminals 90 (1949).
What violation of the laws of war do you see in the facts of the Skorzeny case?
b. Saboteurs.
PME QUIRIN
U.S. 1(1942)
Facts: During the hours of darkness on June 13, 1942 and again on June 17, 1942, German submarines landed a total of eight specially trained saboteurs on the shores of the United States. Four were landed at Amogansett Beach on Long Island and four were landed at Ponte Vedra Beach, Florida. All eight wore German Marine Infantry unlfoms, while landing. Immediately after landing they buried their uniforms, together with a supply of explosives, fuses, and incendiary and timing devices, and proceeded in civilian dress to key cities in the United States. The eight had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States. Agents of the Federal Bureau of Investigation apprehended them, however, before they could carry out their mission.
On July 2, 1942, the President, as Commander-in-Chief, appointed a Military Commission and directed it to try Quirin and his seven associates for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of trial and of any judgment or sentence of the Commission. On July 8, 1942, the trial of the prisoners commenced, They were charged, generally, with violations of the law of war, aiding the enemy in violation of A.W. 81, spying in violation of A.W. 82, and conspiracy to commit the mentioned offenses. Before the judgment of the military commission was announced, the defendants filed applications for writs of habeas corpus in the Federal District Court for the District of Columbia. Their applications were denied. The Supreme Court granted certiorari.
Issues: 1. Has the President constitutional or statutory authority to order the eight Germans (one claimed to be a U.S. citizen, however), to be tried by a military tribunal for the offenses charged, and
2.
If so, is the order of the President prescribing the procedure for their trial legal and valid in view of the provisions of Articles 38, 43, 46, 50-1/2 and 70, Articles of War, which conflict therewith?

3.
Do the petitioners, as enemy belligerents, have access to the Federal Courts?

Answsring all questions-in the affirmative, the court statedinsofar as is here
T:nBy universal agreement and practice the law of war draws e distinction between the armed forces and the peaceful populations of belligerent nations [citing HR] and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency imlawnil. The spy who secretly and without uniform passes the military lines of a belligerent in time of war; seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging’war by de­struction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals .If [citing Winthropls id., pp. 1196, 1197, 1219-1221; the trial of Major John Andre, 1780; and numerous Mexican and Civil War cases.] * * *
“The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruc- tion of war industries and supplies, as any the less belligerent enemies than are agents similarly entering for the purpose of destroying forti- fied places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unladul belligerents subject to trial and punishmentmn

-NOTE
Here again, see Baxter’s article cited in the note accompanying paragraph 2a, above.
3. Irregdar combatants; partisans, and nuerrillas.
a. Partisans.
Read: Pars. 61~(2) and 64, 3% 27-10.
–
–
NOTE

The term npartisans” is used here in the legal context suggested by Professor Baxter to identify those irregular combatants who & meet the criteria of Article 4, GC (par. 61~(2), FN 27-10). The term is not intended to include the members of a levee en masse. See pars. 61~(6) and 65, FM 27-10. It is not possible, in a legal sense, for a levee en masse to arise in occupied territory. But cf., Von Glahn, The Occupation of Enemy Territory 29 (1957).
IN RE LIST AND OT-(HOSTAGES TRIAL)
(u.s. Mil. Trib. Nuremberg 1948), Annual Digest, 1948, Case No. 215
Facts: The ten accused were high-ranking officers in the German
aimed forces. They were charged with, insofar as is here pertinent,
responsibility for the drafting and distribution of orders directing
that quarter must be refused to resistance troops; that the latter
should be denied the status and rights of prisoners of war; and that
prisoners of war should be summarily executed.

Issue: Did the civilian resistance forces operating in the Balkans qualify as lawful combatants under the Hague Regulations so as to be entitled to prisoner of war status upon capture?
Opinion: No. is the contention of the defendants that after the respective capitulations a lawful belligerency never did exist in Yugoslavia or Greece during the period here involved. The Prosecution contends just as emphatically that it did. The evidence on the subject is fragmentary and consZsts primarily of admissions contained in the reports, orders and diaries of the German army .units involved. There
is convincing evidence in the record that certain band units in both Yugoslavia and Greece complied with the requirements of International Law entitling them to the status of a lawful belligerent. But the greater portion of the partisan bands failed to comply with the rules of war entitling them to be accorded the rights of a lawful belligerent. The evidence fails to establish beyond a reasonable doubt that the in- cidents involved in the present case concern partisan troops having the status of lawful belligerents.
“The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common
uniform. They generally wore civilian clothes although parts of German, Italian and Serbian uniforms were used to the extent they could be obtained. The Soviet Star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so. There is Borne evidence that various groups of the resistance forces were commanded by a centralized command, such as the partisans of Marshal Tito, the Chetniks of Draja Mihailovitch and the Edes of General Zervas. It is evidence also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war, No crime can be properly charged against the de- fendants for the killing of such captured members of the resistance forces, they being francs-tireurs. …
“The evidence is clear that during the period of occupation in Yugoslavia and Greece, guerrilla warfare was carried on against the oc- cupying power. Guerrilla warfare is said to exist where, after the capitulation of the main part of the armed forces, the surrender of the government and the occupation of its territory, the remnant of the defeated army or the inhabitants themselves continue hostilities by harassing the enemy with unorganized forces ordinarily not strong enough to meet the enemy in pitched battle, They are placed much in the same position as a spy. By the law of war it is lawful to use spies. Nevertheless, a spy when captured may be shot because the belligerent has the right, by means of an effective deterrent punishment, to defend against the grave dangers of enemy spying. The principle therein in- volved applies to guerrillas who are not lawful belligerents. Just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance. And, on the other hand, members of such resistance forces must accept the increased risks involved in this mode of fighting. Such forces are technically not lawful bel- ligerents and are not entitled to protection as prisoners of war when captured. The rule is based on the theory that the forces of two states are no longer in the field and that a contention between organized armed forces no longer exists. This implies that a resistance not supported by an organized government is criminal and deprives partici- pants of belligerent status, an implication not justified since the adoption of Chapter I, Article I, of the Hague Regulations of 1907.
In determining the guilt or innocence of any army commander when charged with a failure or refusal to accord a belligerent status to captured members of the resistance forces, the situation as it appeared to him must be given the first consideration. Such commander will not be permitted to ignore obvious facts in arriving at a conclusion. One trained in military science will ordinarily have no difficulty in arriving at a correct decision, and if he wilfully refrains from so doing for any reason, he will be held criminally responsible for wrongs committed against those entitled to the rights of a belligerent. Where room exists for an honest error in judgment, such army commander is entitled to the benefit thereof by virtue of the presumption of his innocence.
“We think the rule is established that a civilian who aids, abets or participates in the fighting is liable to punishment as a war criminal under the laws of war. Fighting is legitimate only for the combatant personnel of a country. It is only this group that is en­titled to treatment as prisoners of war and incurs no liability beyond detention after capture or surrender.
“It is contended by the prosecution that the so-called guerrillas were in fact irregular troops. A preliminary discussion of the subject is essential to a proper determination of the applicable law. Members of militia or a volunteer corps, even though they are not a part of the regular arq, are lawful combatants if (a) they are commanded by a responsible person, (b) if they possess some distinctive insignia which can be observed at a distance, (c) if they carry arms openly, and (d) if they observe the laws and customs of war. See Chapter I, Article I, Hague Regulations of 1907. In considering the evidence adduced on this subject, the foregoing rules will be applied. The question whether a captured fighter is a guerrilla or an irregular is sometimes a close one that can be determined only by a careful evaluation of the evidence before the Court. The question of the right of the population of an invaded and occupied country to resist has been the subject of many conventional debates. (~russels Conference of 1874; Hague Peace Conference of 1899.) A review of the positions assumed by the various nations can serve no useful purpose here for the simple reason that a compromfse (~a~ue
Regulations, 1907) was reached which has remained the controlling authority in the fixing of a legal bel- ligerency. If the requirements of the Hague Regulations, 1907, are met, a lawful belligerency exists; if they are not met, it is an unlawful
one.
NOTE
–

For a provocative article by a Soviet spokesman ridiculing, in effect, any effort to take the provisions of the Hague Regulations (now Article 4a(2), GC) literally and apply them in a “peoples” war, see Trainin, Questions of Guerrilla Warfare in the Law of War, 40 Am. J. Intll L. b34 (1946). See, also, D.A, Pam. 20-244, The Soviet Partisan Movement, 1941-1944, August 1956.
IN RE HOFFMBM enma mark 1948), Annual Digest, 1949, Case No. 191
Facts: The accused, a member of the German Security Police in oc- cupied !)enmark, had in 1944-1945 in several cases ill-treated and tortured, or ordered the ill-treatment and torture, of Danish subjects who had been arrested as being members of the resistance movement. In his defence the accused contended that his acts and orders were lawful on the grounds that the resistance movement and its members, being francs-tireurs, enjoyed no protection from the rules of international law; that the German occupation authorities were therefore entitled to use all means in their power to defeat them; that the ill-treatment had been undertaken in self-defence seeing that the attacks of the resistance movement exposed to danger the lives of German soldiers; and that this danger could only be prevented by obtaining from the arrested members in the shortest possible time information as to the organization of the resistance movement.
Issue: Were the accused’s action justifiable under international law?
Ooinion: No. The court said that the accused was guilty. uThe actions of the Danish resistance movement were not contrary to the rules of international law, Moreover, irrespective of the question whether the members of the movement enjoyed the protection of the rules of international law, the acts with which the accused was charged could not be recognised as lawful acts of self-defence or self-preservation in accordance with international lawen
i4ay the Hoffman case be reconciled with the List case? What con­clusions do you draw from these two cases?
flFrancs-tireurs,H literally translated means free-shooters. They were originally formed as civilian rifle clubs in the east of France with an unofficial military character. In case of war they were expected to act as light troops. Thousands were executed by the Prussians as unlawful belligerents during the Franco-Prussian war.
be Guerrillas.
Read: Pars. 71, 73, 80, 247, and 248, FP4 27-10.
The term “guerrillasn is used here again in the legal context suggested by Professor Baxter to identify those irregular combatants who do & meet the criteria of Article 4, GC.
For an excellent historical account of the use made of guerrillas and the disposition made of them upon capture during the wars of the last two centuries, see, Nurick and Barrett, Le~alit~
of Guerrillq Forces Under the Laws of War, 40 Bm. J. Int ‘1. L. 563 (1946) .
IN RE VON LEWINSKI (CUDVON MSTEIN)
(~rit.Mil. Trib., Hamburg 1949), Annual Digest, 1949, Case No. .I92

Facts: The accused was a high-ranking officer in the German army who was charged with, insofar as is here pertinent, executing Russian prisoners of war as guerrillas without a trial.
-Issue: Is a guerrilla entitled under international law to a trial?
O~inion: Yes. The court said: “The submission of the Defence with
regard to guerrilla warfare was this, that a Commander is entitled to
take all measures that are necessary to ensure the protection of his
troops, provided that he does not indulge in arbitrary methods. The

civilian inhabitants are entitled to protectjon only as long as they remain peaceful, and if individual members commit hostile acts, then the belligerent is entitled to require the aid of the population to prevent their recurrence. If he does not get that aid, he is entitled to punish the individual–that is as a means of preventing it in the future. This, of course, is part of the law of reprisals, It was further submitted that it was neither the law nor the custom that any form of trial should be granted to a franc-tireur, he may simply be shot on capture–that the only limitation to the measures which a Commander might take to protect his troops from civilian attack were the particular circumstances of each case. In considering this question, which is a considerable part of the Defence in this case, it is first necessary to decide what is the nature of the question in issue.
“The armed forces of a belligerent may consist of (1) the regular armies, and (2) the irregular forces, The irregular forces in turn, may be of two kinds: (1) such as are authorised by the belligerent, and (2) such as are acting on their own initiative. Article I of the Convention sets down that the laws, rights and duties of war apply not only to the Army, that is the first of the above, but also to Militia and Volunteer Corps Fulfilling all the following conditions: ‘(1) They must be coded by a person responsible for his subordinates, (2) they must have a design recognisable at a aistance, (3) they must carry arms openly and
(4) they must conduct their operations in accordance with the laws and customs of war.’ That is to say, if the Militia comply with those 4 conditions thec they enjoy the same status as members of the Arq. Fur­thermore, it may happen during the War that on the approach of the enemy a belligerent calls the whole population to arms, and so makes them all, more or less, irregulars of hi8 armed forces, Those who take part in such an organised levy pn masse also enjoy the privilege that is due to members of the armed forces, provided they carry arms openly and respect the laws of war, and receive some organisation. Again, a levy en massg may take place spontaneously without organlsation by the belligerent, and as to this Article 2 stipulates they shall be regarded as belligerent if they carry arms openly and if they respect the laws and customs of var. That is to say, such inhabitants taking part in a levy en masse are entitled to the rights and status of a belligerent. This provision, however, attaches only to the population of a territory not under occu- pation, and who take up arms on the approach 0% the enemy, and does not apply to the portion of the country which is occupied.
“By Article 42 territory is considered occupied when actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and is in a position to assert itself. The result of a failure on the part of an
individual to comply with the requirements of these two Articles, which­ever is applicable to his circumstances, is that the individual is de­prived, if he is captured, of the statvs of a prisoner-of-wer. The next question that arises with regard to such an individual is, what are his rights, and what are the duties of his captor towards him? The Con- vention lays down no rule with regard to this, but it is submitted by the Prosecution that the answer is afforded by Article 30 which says a spy taken in the act shall not be punished without a previous trial. It cannot be alleged that one against whom it is alleged that’ he has for- feited his right to prisoner-of-war status can be shot without any en- quiry such as is demanded in the cam of e spy. The fact that a man has been captured in circumstances which render him suspect of guerrilla warfare cannot of itself justify his being treated on the basis of that suspicion having been proved correct. …
With.regard to the first clause [? class], that is the regular armed forces, the position is clear. Obviously, it is not for either of the belligerents arbitrarily to limit the classes of persons among their opponents entitled to be regarded as belligerents and entitled to the protection of the Rules of the Convention. Regular soldiers are so entitled without any of the 4 requirements set out in Article I; they are requisite in order to give the Militia and the Volunteer Corps the same privileges as the Army. No notice stating that soldiers who do not report at a certain time or within a given time will be treated as grants-tireurg can have any validity, nor is a belligerent entitled to treat a soldier as franc-tireur by reason of the fact that he has become detached from his unit. The soldier in mfform who is shot solely by reason of his non-compliance with such an order, or because he is found away from his unit, is murdered.
“In the present case the Prosecution say that it is abundantly clear from the evidence that the levy gn masse was organised, and ener- getically organised, by the State before the invasion started, and that therefore those who took part in it enjoy the privileges due to members of the armed forces, provided they comply with the requirements; that whether they did so is a matter for consideration in respect of each individual concerned. That the Russians indulged in guerrilla warfare on a large scale is obvious. That it constituted a constant menace to the German forces is equally clear. No one who could be proved to have been acting as a franc-tireur could claim to be entitled to the status of a prisoner-oi-war. But this presupposes some form of trial just as in the case of a spy, and it is no answer for a Commanding General to say that he had no time for trials. The rules of war cannot be disregarded merely because it is inconvenient to obey them.”

NOTE

–

Is this the extent of the protection afforded a guerrilla under the laws of war; a prompt trial before a prompt execution?
Is a guerrilla captured in other than occupied territory entitled to a trial? See, par. 81, FM 27-10.
How is it determined whether a civilian combatant qualifies as a partisan, or, failing that, is a guerrilla?
If a guerrilla is an unprivileged belligerent who is liable to be dfsposed of with a minimum of formality upon capture, what fate awaits those regular members of the armed forces who in small teams have linked up with guerrilla bands to organize and guide their activities?
RED gRMP LiUFLEZ ADDRESSED TO PARTISANS (1941)
Citizens of the Soviet Union!
Fascist thieves, who have temporarily occupied Soviet territories, have talked much and often in their propaganda about you. Red Parti- sans. This is not just because the Fascists are in deadly fear; the Fascist beast has felt your blows on its hide. They have to conduct two wars, one front against the troops of the Red Army and a second one, in the rear, against partisans. Their tail is caught, they are in a state of panic, and they are screaming, “The partisans are breaking the rules of war.” To that one can say, “Whose cow is bellowing, but the Fascist cow is silent.I1 [~da~tation
of a Russian proverb.]
When the Fascists broke into our fatherland, without a declaration of war, on June 22 of this year, they gave no thought to any laws of war. When the Fascist animals annihilate the peaceful population, hack children to pieces, and violate women, they are not remembering the laws of war. When they treat wounded Red Army soldiers and partisans like animals, they forget the laws of war.
Comrades, we have but one law for the Fascist oppressors and killers: Hit them with everything available to you, wherever you find them and wherever you can. Blood for blood, death for death! That is our right and our law.
The Fascists say in their leaflets and publications in the occupied Soviet territories that you partisans are robbers and bandits. Tahus they want to rouse the people against you. But the Fascist dogs will not succeed in this.
Comrades, men and women partisans, your heroic struggle against the Fascist dogs 13 right and honest. When you fight them and destroy their war material, you are doing a great deed for your. people.
Every partisan is a hero of the people.
The State Defense Codttee of the U.S.S.R. issued an order on July 29, 1941, according to which partisans will continue to receive their pay, like volunteers, up to the median monthly wage.
The entire Soviet nation with its government and Stalin look with pride and love at your work. You are surrounded by the interest of all the Soviet people. Seventy-thee partisans were awarded orders and medals of the Soviet Union for heroism in partisan warfare to the rear of the German Fascists. The partisans Tichon Pavelowitch Busaschkow and Fedor Illorinowitch Pawlawski received the highest award of the U.S.S.R., the title of “Hero of the Soviet Union.”
The Soviet People does not forget your warlike work, comrades par- tisans; your victories will be written in golden letters in the history of our fatherland. Remember that the day is not far away when the Hitler army will be just like the army of William I1 in 1918, when it will be driven from the Soviet soil.
Heavier blows against the hateful enemy!
Do not give the Fascists peace, day or night!
Strike them without mercy like mad dogs!
Reprinted from Gerhard von Glahn, THE OCCUPATION OF ENEMY TmITORY:
A CObIM1mQRY ON TE LAW AND PRACTICE OF BZUIGERENT OCCUPATION. Copy-
right 1957, University of Minnesota.

125

RUSSIAN LEAFLET ADDRESSED TO PAR!KtSANS (1941?)
Dear Brothers !
Dear Sisters!
We remember you,
We think of you.

We are with you with our hearts, in this serious hour,
When the Fascists, full of wrath,
Stretch the bloody robber’s hand toward your heads
And abandon the territories separated from the homeland
To hunger, death and pain.

Deo not despair! We are coming soon.
We return to you under the banners of victory,
And the deeds of the accursed Fascist cannibals
Will be repaid with fire and steel.

Await each day the victory,
Do not spend the time idly, suffering, quietly and asleep.
Holy hatred and your reason
Will show you the right way.

Strike the enemy in the rear, without pity,
Destroy the houses, trains, stations and tracks!
Burn the grain, the forests and warehouses!
Blow up the tanks! Tear down the wires!

And thus make an end to the bloodthirsty Hitler
Through blows from rear and front.
From both sides we destroy his army,

. From both sides we drive the eneqy to his tomb.
Arise, all of you! It is necessary to get to work
With the combined strength of the workers and peasants.
You must fight alone,
And you must form partfsan groups.

The entire people rises in e fight to the death
Under the banner of the Stalin victory.

The Soviet land sends you, its dear comrades, its best wishes.
We shall overcome all difficulties.
The hour of revenge is coming!
Dear Brothers! Dear Sisters!
We remember you. We think of you. .

Reprinted from Gerhard von Glahn, THE OCCUPATION OF ENEMY TmTORY: A COMtFUTATIY ON THE LAW AND PRACTICB OF BETLIGE2ENT OCCUPATION. Copyright 1957, University of Minnesota.